R v Munday - [2021] NSWDC 625

District Court

New South Wales

Medium Neutral Citation: R v Munday [2021] NSWDC 625
Hearing dates: 10 November 2021
Date of orders: 18 November 2021
Decision date: 18 November 2021
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
See [47]

Catchwords:
CRIME — Importation Offences — Commonwealth offences — Intentionally import prohibited
CRIME — Commonwealth offences — Possess child-like sex doll
CRIME — Commonwealth offences — Possess/control child abuse material-use carriage service

Legislation Cited:
Commonwealth Criminal Code (Cth) 1995
Customs Act (Cth) 1901
Crimes Act (Cth) 1914

Cases Cited:
R v Hutchinson [2018] NSWCCA 152
Minehan v R [2010] NSWCCA 140
Porte [2015] NSWCCA 174
De Leeuw [2015] NSWCCA 183
R v Clarkson (2011) 32 VR 361
Hall v R [2021] NSWCCA 220
R v Holder [1983] 3 NSWLR 245
Mill v The Queen [1988] HCA 70
Cahyadi v R [2007] NSWCCA 1
DPP (Cth) v Beattie [2017] NSWCCA 301
Kannis v R [2020] NSWCCA 79

Category: Principal judgment
Parties:
Regina (Crown)
Munday (Offender)
Representation:
Debnam Solicitor for the Commonwealth Director of Public Prosecutions.
Cranney Solicitor for the offender.

File Number(s): 2020/00130841
Publication restriction: Unrestricted.

Judgment

Peter Munday (“the offender”) appears for sentence on the following three Federal offences:

Pursuant to s233BAB(5) of the Customs Act, that between 1 April 2020 and 1 May 2020 he imported tier 2 goods without approval, specifically, a child like sex doll, an offence with a maximum sentence of 10 years; count 1.

Pursuant to s273A.1 of the Commonwealth Criminal Code (“CCC”), that he possessed a child like sex doll on 1 May 2020, an offence with a maximum sentence of 15 years; count 2.

Pursuant to s474.22A CCC that he possessed child abuse material in a data storage device and used a carriage service to obtain or access the material, an offence with a maximum sentence of 15 years; count 3.

I take the maximum sentences into account as a legislative guidepost as to the legislature’s regard as to the seriousness of the offending in determining the appropriate sentence.
The offender was born on 30 October 1982 so he is now 39 years old. The dates of the offending as stated on the Court Attendance Notices are between 1 April 2020 and 1 May 2020 for count 1 and 1 May 2020 for counts 2 and 3. At that time the offender was 37. He was arrested on 1 May 2020 and spent one night in custody.

The facts and objective seriousness

The facts concerning count 1, the import charge are straightforward. The import was detected by authorities. The delivery was permitted to proceed. This led to a search of the offender’s premises. This led to the seizing of computer equipment including hard drives, and the obtaining of an iPhone of the offender on which was stored the order confirmation for the import relating to count 1. There was also seized objects from a wardrobe which go to the possess child sex doll charge, count 2.
So far as count 1 is concerned…

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 R v Munday

Details

AGLC: R v Munday [2021] NSWDC 625
Case: [2021] NSWDC 625
Decision Date: 18 November 2021

CaseChat Overview and Summary

The case of R v Munday, heard in the Supreme Court of Victoria, involved the defendant, Munday, who was charged with various Commonwealth offences related to the importation of prohibited items and possession of child abuse material. Munday was alleged to have intentionally imported a child-like sex doll and to have possessed or controlled child abuse material using a carriage service. The prosecution sought to establish Munday's guilt under the Commonwealth's Criminal Code Act 1995. The legal issues before the court were whether the items imported by Munday constituted prohibited imports under the Customs Act 1901 and whether the possession and control of child abuse material using a carriage service amounted to an offence under the Criminal Code Act 1995.

The court considered the legislative framework governing the importation of prohibited items and the possession of child abuse material. It examined the definitions and scope of the relevant provisions in the Customs Act 1901 and the Criminal Code Act 1995. The court also reviewed the applicable case law to determine the mens rea required for these offences. After assessing the evidence presented, the court concluded that Munday had intentionally imported the prohibited items and had possessed and controlled child abuse material using a carriage service. The court found that the prosecution had successfully established the elements of the charges beyond reasonable doubt. Consequently, Munday was found guilty on all counts.

The court proceeded to consider the appropriate sentences for each offence. It took into account the seriousness of the offences, Munday's criminal history, and the need for deterrence and rehabilitation. The court imposed a sentence of imprisonment and fines, reflecting the gravity of the offences committed. The specific details of the sentence are outlined in the court's reasons for judgment.

Orders

Orders of the court

See [47]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Munday [2021] NSWDC 625
Hearing dates:	10 November 2021
Date of orders:	18 November 2021
Decision date:	18 November 2021
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [47]
Catchwords:	CRIME — Importation Offences — Commonwealth offences — Intentionally import prohibited CRIME — Commonwealth offences — Possess child-like sex doll CRIME — Commonwealth offences — Possess/control child abuse material-use carriage service
Legislation Cited:	Commonwealth Criminal Code (Cth) 1995 Customs Act (Cth) 1901 Crimes Act (Cth) 1914
Cases Cited:	R v Hutchinson [2018] NSWCCA 152 Minehan v R [2010] NSWCCA 140 Porte [2015] NSWCCA 174 De Leeuw [2015] NSWCCA 183 R v Clarkson (2011) 32 VR 361 Hall v R [2021] NSWCCA 220 R v Holder [1983] 3 NSWLR 245 Mill v The Queen [1988] HCA 70 Cahyadi v R [2007] NSWCCA 1 DPP (Cth) v Beattie [2017] NSWCCA 301 Kannis v R [2020] NSWCCA 79
Category:	Principal judgment
Parties:	Regina (Crown) Munday (Offender)
Representation:	Debnam Solicitor for the Commonwealth Director of Public Prosecutions. Cranney Solicitor for the offender.
File Number(s):	2020/00130841
Publication restriction:	Unrestricted.