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Musca v The Queen

Musca v The Queen

Case [2021] WASCA 37 4 March 2021

Recognizance Release Order

Criminal Law

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MUSCA -v- THE QUEEN [2021] WASCA 37
CORAM:   QUINLAN CJ
BUSS P
MAZZA JA

HEARD:   8 DECEMBER 2020
DELIVERED          :   4 MARCH 2021
FILE NO/S:   CACR 57 of 2020
BETWEEN:   JULIAN AARON MUSCA
Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   WALLACE DCJ
File Number            :   IND 1879 of 2019

Catchwords:

Criminal law – Sentencing – Possession of child exploitation material – Using a carriage service to access child pornography material – Using a carriage service to transmit child pornography material – Whether totality principle correctly applied – Whether minimum period of imprisonment under recognizance release order unreasonable or plainly unjust

Legislation:

Crimes Act 1914 (Cth), s 20
Criminal Code (WA), s 220
Criminal Code Act 1995 (Cth), s 474.19(1)(a)

Result:

Leave to appeal on ground 2 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	T F Percy QC with G C R Yin
Respondent	:	P D Yovich SC with A J C Mossop

Solicitors:

Appellant	:	D G Price & Co
Respondent	:	Director of Public Prosecutions (Cth)

Cases referred to in decision:

Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hong v R [2017] NSWCCA 238
Kabambi v The State of Western Australia [2019] WASCA 44
Merritt v The State of Western Australia [2019] WASCA 203
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Peters v The Queen [2018] NSWCCA 126
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Abbas [2019] WASCA 64; (2019) 277 A Crim R 105
R v De Leeuw [2015] NSWCCA 183
R v Freedman [2017] NSWCCA 201; (2017) 268 A Crim R 453
R v Host [2015] WASCA 23; (2015) 248 A Crim R 352
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Shi v The State of Western Australia [2020] WASCA 197
The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86

JUDGMENT OF THE COURT:

Introduction and overview

This is an appeal against sentence.
The appellant was convicted, on his pleas of guilty, of four counts on an indictment. Two of the convictions were for possession of child exploitation material contrary to s 220 of the Criminal Code (WA) (the State offences). The other two convictions were for using a carriage service to access child pornography material and using a carriage service to transmit child pornography material contrary to s 474.19(1)(a)(i) and s 474.19(1)(a)(iii) (respectively) of the Criminal Code Act 1995 (Cth) (the Commonwealth offences).
Count 1 related to child exploitation material that was stored on a Samsung mobile telephone (the mobile) and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Musca v The Queen

Details

AGLC: Musca v The Queen [2021] WASCA 37
Case: [2021] WASCA 37
Decision Date

CaseChat Overview and Summary

In this appeal, Julian Aaron Musca challenges his sentence imposed by Wallace DCJ following his convictions on four counts, two of which were for possession of child exploitation material under the Criminal Code (WA) and two for using a carriage service to access and transmit child pornography material under the Criminal Code Act 1995 (Cth). The appellant pleaded guilty to each count. The Court of Appeal dismissed the appeal. The appellant was sentenced to a total effective sentence of 19 months imprisonment, of which 14 months were to be served. The appellant appealed on two grounds. The first ground alleged that the learned sentencing judge had erroneously applied the totality principle. The second ground alleged that the recognizance release order made in relation to the Commonwealth offences was manifestly excessive and disproportionate to the total effective sentence. The Court rejected the first ground, holding that the learned sentencing judge was alert to the need to ensure that the total sentence imposed in relation to multiple offences bore a proper relationship to the overall criminality involved in all of the offences. The Court rejected the second ground, holding that the minimum period of 5 months imprisonment imposed by the learned sentencing judge under the recognizance release order was not manifestly excessive, namely that the end result was not so unreasonable or unjust that this Court must conclude that a substantial wrong had occurred.

Orders