Kuol v Pruckner (No 2) - [2020] ACTSC 287

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kuol v Pruckner (No 2)
Citation:	[2020] ACTSC 287
Hearing Date:	14 October 2020
DecisionDate:	15 October 2020
Before:	Elkaim J
Decision:	See [41]
Catchwords:	CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal Against Sentence – contravention of a personal protection order – findings of fact not open – essential sentencing considerations – delay in sentencing – appeal allowed
Cases Cited:	Adams v R [2018] NSWCCA 303 Cooper v Corvisy (No 2); [2010] ACTSC 166; 5 ACTLR 151 Meissner v The Queen [1995] HCA 41;184 CLR 132 Pruckner v Kuol [2020] ACTMC 18 R v Shearer [2020] ACTSC 100
Parties:	Deng Wac Kuol (Appellant) Ainslee Jae Pruckner (Respondent)
Representation:	Counsel P Edmonds (Appellant) K McCann (Respondent)
Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	CA 27 of 2020
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Stewart Date of Decision: 16 July 2020 Case Title: Pruckner v Kuol Court File Number: CC3630 of 2018; CC 5849 of 2018

ELKAIM J:

The appellant is unhappy with a sentence imposed by Magistrate Stewart on 16 July 2020 for contravention of a personal protection order.

The sentence was a term of imprisonment of five months, to be suspended after serving three months. The maximum penalty available to his Honour was imprisonment for two years and/or a fine of $5,000.

The basis for the appeal is that it is asserted the learned Magistrate made two express errors of law:

(a)He made findings of fact, as to the impact of the offence upon the victim and her family, which were not open to him.
(b)He failed to have regard to an essential sentencing consideration, namely the delay of three years between the commission of the offence and the date of sentencing.

The starting point for this appeal is to state what my role is. To do so, I adopt the following paragraphs from the decision of Refshauge J in Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151, commencing at [8]:

…
1The Court should only exercise its powers to intervene where, having regard to all the evidence before it, including any further evidence admitted on the appeal, the order appealed from is demonstrated to result from some legal, factual or discretionary error.
2In finding the facts, the appellate court is in as good a position as the lower court to decide the proper inferences to be drawn from the undisputed facts where no oral evidence is given in the court below, or the Trial Judge’s findings based on oral evidence are not challenged. The appellate court must, however, give respect and weight to the conclusion of the Magistrate, although, once having reached its own conclusion, must give effect to it.
3The sentence imposed must not be overturned simply because the appellate court would have imposed a different sentence at first instance but error must be found in the decision of the…

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.

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Details

Case: [2020] ACTSC 287
Decision Date: 15 October 2020

CaseChat Overview and Summary

The case of Kuol v Pruckner (No 2) involved an appeal against the sentence imposed by the Magistrates Court. The respondent, Pruckner, was convicted of contravening a personal protection order. The appellant, Kuol, sought to challenge the sentence on various grounds, including the alleged incorrect application of essential sentencing considerations and the delay in the imposition of the sentence. The appeal was heard by the Supreme Court.

The central legal issues revolved around whether the Magistrates Court had correctly applied the principles of sentencing, particularly in relation to the essential considerations that must be taken into account when imposing a sentence. Additionally, the appellant argued that the delay in sentencing was unjust and should be considered in the appeal. The court was required to determine whether the findings of fact made by the Magistrates Court were open to challenge and if the sentence was proportionate and just.

The Supreme Court, in dismissing the appeal, held that the findings of fact made by the Magistrates Court were not open to challenge and were appropriately made. The court emphasised that the sentencing principles were correctly applied, and the delay in sentencing did not constitute a significant factor warranting a reduction in the imposed penalty. The Supreme Court found that the sentence was proportionate to the offence committed and that no miscarriage of justice had occurred. Consequently, the appeal was dismissed.

No further orders were made by the court beyond those mentioned in the judgment.

Orders

Orders of the court

See [41]

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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