Musca v The Queen

Case [2021] WASCA 37


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

  1. This is an appeal against sentence.

  2. 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).

  3. Count 1 related to child exploitation material that was stored on a Samsung mobile telephone (the mobile) and…

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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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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