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Musca v The Queen [2021] WASCA 37

The offender was sentenced after pleading guilty to 1 count of using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code, 1 count of using a carriage service to transmit child pornography material contrary to s 474.19(1)(a)(iii) of the Commonwealth Criminal Code, and 2 state offences. Offender was sentenced to 19 months imprisonment to be released on recognizance release order after 14 months.  Offender appealed on basis that sentencing judge erred in applying totality principle to State offending, and separately to Commonwealth offending and that the recognisance release order was manifestly excessive and disproportionate to the total effective sentence.  

Totality: Total effective sentence imposed on an offender who has committed multiple offences must bear proper relationship to overall criminality involved in all the offences. Sentencing judge correctly identified effect of the totality principles and arrived at a total effective sentence that included both wholly concurrent sentences and partly concurrent and cumulative sentences. The marginal effect of the sentences for the Commonwealth offences on the total effective sentence indicates that totality did play a significant role in the structure of the overall sentence imposed. Application of the totality principle does not require the use of any particular verbal formula. Ground 1 was rejected.  

Recognizance Release Order: Focus on the proportion that the overall minimum period bore to the total effective sentence was apt to divert attention from the nature of the sentencing task to fix the specified period of imprisonment under the RRO. The conclusion of the minimum term required was by reference to the length of the term itself rather than by reference to the proportion that it bore to the total effective sentence. The total effective sentence may be described as lenient. The result was a consequence of offender’s early guilty plea, genuine remorse, steps to rehabilitate and difficult personal history. Sentence was within the range of a sound exercise of the sentencing discretion.  

Leave to appeal refused. Appeal dismissed.    
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