Kuol v Pruckner
[2020] ACTSC 207
•29 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kuol v Pruckner |
Citation: | [2020] ACTSC 207 |
Hearing Date: | 29 July 2020 |
DecisionDate: | 29 July 2020 |
Before: | Robinson AJ |
Decision: | See [22] |
Catchwords: | CRIMINAL LAW – BAIL APPLICATION – Whether Special or Exceptional Circumstances Exist – Amelioration of further offending or anti-social behaviour – whether benefit of a successful appeal would be lost owing to delay in being heard |
Legislation Cited: | Bail Act 1992 (ACT) ss 9E, 22 |
Parties: | Deng Wac Kuol (Applicant) Ainslee Pruckner (Respondent) |
Representation: | Counsel P Edmonds (Applicant) D Sahu Khan (Respondent) |
| Solicitors Canberra Criminal Lawyers (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | CA 27 of 2020 |
ROBINSON AJ:
On 16 July 2020, the applicant for bail, Deng Wac Kuol, was sentenced by Magistrate Stewart to a period of imprisonment of five months from that date. After the applicant had served three months, that sentence was to be suspended upon the entering into of a Good Behaviour Order for a period of two years. The Magistrate imposed unusual conditions in the Good Behaviour Order but those conditions were consistent with the offending and for the purposes of safeguarding the complainant.
The applicant pleaded guilty to an offence under s 35(2) of the Personal Violence Act2016 (ACT), the maximum imprisonment penalty for which is five years but two years if dealt with in the Magistrates Court.
The applicant has appealed against his sentence. The appeal is listed for directions in the Supreme Court on 27 August 2020 before the Registrar.
The appeal against sentence is as of right.
Prior to coming on the bench this morning, I made enquiries of the Registrar as to the likely hearing date for the appeal. I was informed that it would be unlikely that an appeal would be heard within a three-month period commencing on 16 July 2020.
Counsel for the applicant relies upon the principle that an appeal should not be rendered nugatory by delay in having it heard.
It was not in contest that the appeal was arguable. Four errors are asserted in the Notice of Appeal. It is not necessary to delve further into these grounds. I am satisfied that the appeal is indeed arguable.
The matter comes before the Supreme Court under s 9E of the Bail Act1992 (ACT). This section applies if:
(a)A person has been convicted of an offence by a court and sentenced to a period of imprisonment for the offence; and
(b)An appeal is pending in relation to the conviction or sentence.
Section 9E(2) provides that a court must not grant bail to a person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
It is then necessary to consider the criteria in s 22 of the Bail Act. The appellant has in the past, on a number of occasions, failed to appear in court when he was required to do so. However, these occasions occurred several years ago.
There is also an instance where he was in South Australia for a significant period of time and there is some disputed evidence that he was avoiding justice in going to, and staying in, South Australia. That evidence is not strong but a reporting condition would strengthen the case for a grant of bail.
I do take into account the fact that the applicant is resident with his wife in the ACT and has several children, with a further child due to be born on or about 4 September 2020.
The major issue canvassed before me with regard to s 22 was the prospect that the applicant may continue to harass or intimidate the complainant in these proceedings.
On 19 July 2020 there appeared a post on social media, apparently connected to the applicant, where the complainant was again the subject of intimidation. The post featured a photograph of the applicant with audio. The language used is not yet the subject of any translation into English.
On what is known of the audio, it deals with the sentencing of the applicant so that the making of the media post must be on or after 16 July 2020. The sentencing Magistrate is said to be “cursed”.
The authenticity of the voice recording is yet to be established. There is evidence before me on the bail hearing that inmates at the Alexander Maconochie Centre do not have lawful access to social media. There is also evidence before me that it is not known whether any attempt has been made to track down any device that may be in the applicant’s possession which would be capable of initiating the media post on 19 July 2020.
The applicant is a well-recognised leader in the Sudanese community of the ACT. The complainant is also a member of that community.
The offence for which the applicant has been convicted concerned the applicant calling the complainant a “witch” and a “prostitute” on social media. In Australian culture, such postings may not bring forth any great harm. The evidence before me, however, indicates that in Sudanese culture such a posting can have grave consequences. There is evidence that entire families in Sudan have been tracked down and murdered at the mere accusation of being a witch or a prostitute. There is also evidence of families being socially ostracised in the ACT Sudanese community in relation to such events.
It is to be remembered that the Sudanese community provides significant support for new migrants to Australia and social and community isolation affects the stress, mental health and financial wellbeing of members subject to anti-social conduct and isolation.
Decision
I am satisfied that in accordance with s 9E(2) of the Bail Act, special or exceptional circumstances exist favouring the grant of bail where the benefit of a successful appeal would be lost or probably lost, owing to the delay in a court being able to hear an appeal in a timely manner.
Further I am satisfied that bail conditions could ameliorate the chance of further offending or other anti-social behaviour by the applicant pending the outcome of his appeal. This amelioration can only be to an appropriate level of satisfaction commensurate with the nature and seriousness of the prospective conduct reasonably anticipated by the Crown.
The order of the Court is that the applicant should be granted bail upon the conditions set out in paragraph 9(a)–(e) of the supporting affidavit of Paul Edmonds, dated 22 July 2020, together with the following additional conditions:
(a)Report to the police every two days at the Gungahlin Police Station, commencing 30 July 2020; and
(b)Produce to any police officer, on request, any mobile phone in his possession when reporting.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: 6 August 2020 |
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