Kuol v Pruckner (No 2)
[2020] ACTSC 287
•15 October 2020
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 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 lower court.
4A legal, factual or discretionary error may be found where the Lower Court, inter alia, has taken into account irrelevant considerations or failed to take account of relevant considerations, made an error of law, acted on a wrong principle or mistaken the facts.
5The error may not be a specific error that can be identified but that the sentence is manifestly excessive, unreasonable or manifestly inadequate. In such a case, error may be inferred, given that the sentence is excessive, unreasonable, inadequate, unjust or wrong. From that inference, of course, there must be able to be drawn the conclusion that a different sentence is appropriate.
6Despite the finding of error, it is still necessary to show that the sentence is manifestly excessive, unreasonable or manifestly inadequate and, in the event that this is not shown, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence.
I note here that the appellant does not assert that the sentence is manifestly excessive.
In his sentencing remarks (Pruckner v Kuol [2020] ACTMC 18), his Honour described the background facts, from [3], as follows:
3 The victim sought the protection of a Personal Protection Order (PPO) of the Court as a result of the defendant posting offensive and harassing materials online.
4 The Amended Interim PPO ordered by His Honour Magistrate Cook on 28 April 2017 contains the usual terms plus this at Order 4:
“The Respondent be required to remove any material that has been posted online by the Respondent or created by the Respondent or including statements by the Respondent that is harassing, threatening or intimidating to the aggrieved person or the child/children of the aggrieved person.”
5The Order was made for 12 months from that date.
6Only a matter of weeks later, between 14 and 17 May 2017 the Defendant breached the PPO and the specific Order 4 imposed by Magistrate Cook. He recorded a video of himself speaking in Dinka and posted that recording on Facebook.
7I will not repeat the insults in full here, but insulting words were used by the Defendant about the victim when the defendant proclaimed, amongst other offensive things, that she was a prostitute and a woman who practiced witchcraft. Those insults appear to have arisen from the sole fact that the victim in this matter, [the victim], had previously divorced from her first husband and then later lawfully married the defendant’s cousin.
As part of the case presented by the Crown, a statement of facts was tendered. No objection was taken to the tender. The Crown summarised the facts in its written submissions:
a)On 14 May 2017, the victim found an audio-visual recording which had been posted by the appellant on Facebook. The recording was 1 hour and 20 minutes in length and in the Dinka language. During the audio recording, the appellant repeatedly made defamatory comments about the victim including that she was a prostitute, that she slept with many men and that she practiced witchcraft. As a result, the victim felt harassed and offended, was fearful about her reputation within her community and was concerned that her son would be bullied at school again due to members of the Sudanese community viewing the appellant's Facebook page. The victim reported this recording to the police.
b)On 20 May 2017, the victim found another audiovisual recording which had been posted by the appellant on Facebook. The recording was 27 minutes long and was again in the Dinka language. During the audio recording, the appellant repeatedly made defamatory comments about the victim including that she was a prostitute, that she was an indecent woman, that she practiced witchcraft and that she was having sex with another woman who was a prostitute. As a result, the victim again felt harassed and offended, and was fearful about her reputation within her community. The victim reported this recording to the police on 15 May 2017. As the video had been recorded by the appellant in Dinka, police obtained a translation of the video which was obtained on 5 February 2018.
c)Both the appellant and the victim are Sudanese. The appellant is a leader of the local Sudanese community in Canberra. One of the most offensive insults in the Sudanese community is to be called a witch or a prostitute.
A victim impact statement was tendered. It reads:
Since this incident has happened to me, I feel embarrassed when being in the community because of what was said and posted on Facebook about me. My community now make the same comments to me that was written about me. This makes me feel all alone with no one to be able to speak with. I now avoid going to church which was a big part of my life, generally being out in public because of the anxiety of what people are saying is so overwhelming.
Because of what has been said about me on Facebook has impacted not only me but also my children. In our culture you cannot be married into a witch family and I now have been regarded as a witch within the community. This will now carry on for generations, so I am extremely saddened and ashamed of what has occurred.
Because of the anxiety of what has occurred, I struggle sometimes with work. I am currently on maternity leave however my anxiety is so strong I am very worried that when I go back to work that there is going to be many days where I will struggle, so my boss may not understand and I will lose my job.
I have now been branded by the community so I am constantly in fear. I have lost all of my friends, family and the community as a whole has all left me. I am totally alone and the constant battle to repair my name in the community is forever ongoing.
I am always sad and sometimes I cry uncontrollably. I feel sometimes that I want to kill myself because of the pain that I am dealing with. My children are the only thing that keeps me going. I used to be able to call my mother when things were really bad but now that she has passed away, I have no one. I just don’t understand why this has been said about me and why it was said about me.
My life has been ruined by these actions and I will never be accepted again by the community until they understand that all this is lies. My anxiety is so bad at the moment and I am really worried that I will not be able to go on. I have been dealing with this abuse for years and as a result my life has been totally ruined.
The findings of fact
There are three findings which the appellant, originally, said were not open to the Magistrate. These were:
(a)A finding that online comments made by the appellant about the victim excluded the victim from her church and the Twic community and consequently caused her “tremendous damage”.
(b)A finding that the above consequences of the comments were intended by the appellant.
(c)A finding that the above comments caused one of the victim’s children to be ostracised and bullied at school.
I understand the Twic community to refer to persons originating from a particular area of South Sudan.
The findings of fact are at [8] and [26] of the reasons:
8This branding of the victim had the intended effect of having her excluded from her church and the wider Twic community in Australia and overseas. One of her children was similarly ostracised and bullied at school because of the Facebook video posted by the defendant.
…
26Mr Kuol offended in a way that has caused tremendous damage to his victim. She has been falsely labelled and completely outcast from her community as a result. He knew what the consequences of his behaviour would be as he knew her and his own community’s cultural values.
At the commencement of his submissions, Mr Edmonds who appeared on behalf of the appellant, somewhat refined the scope of his challenge. Ultimately the challenge was limited to the findings that the effects of the criminal conduct had extended beyond Australia and that one of the victim’s children had been ostracised and bullied at school.
The only apparent sources for these two findings are the statement of facts and the victim impact statement. The Crown conceded that there was no reference in either document to the impact on the victim extending outside Australia.
In relation to the victim’s son the Crown pointed to this passage from the statement of facts:
[The victim’s] so[n] told her that he had been bullied at his school because of previous Facebook posts that members of the Sudanese community in Canberra had viewed on the Defendant’s Facebook page which were posted online. [The victim] became concerned that this video would cause him to be bullied further.
In respect of the extraterritorial impact of the offending the Crown submitted, that whilst the finding might have been in error, it was not of such significance that its inclusion in the Magistrate’s reasons affected the appropriate sentence. This submission was repeated in case I found any error at all.
The Crown submitted that having regard to the objective seriousness of the offence, the need for deterrence, both specific and generally and the appellant’s criminal history, there was no reason for any lesser sentence to be imposed.
Returning to the reference to the victim’s son in the statement of facts the question arose as to what force it carried. The appellant submitted that it should be treated in the same way as an assertion in a victim impact statement. The appellant submitted that unless the harm to the victim’s son could be regarded as a natural and ‘expected ‘consequence of the offending, then it needed to be proved beyond reasonable doubt. The appellant accepted that submissions to this effect had not been made to the Magistrate and conceded that the Magistrate had not received the assistance that should have been placed before him.
The offender pleaded guilty. The statement of facts was tendered into evidence. No submission was made that any part of the facts included in the statement was challenged either as to its existence or its scope. This is what the appellant’s lawyer said when the Crown documents were tendered:
MR EDMONDS: Yes, the facts are by consent, the record is admitted and there is no objection to the victim impact statement, your Honour.
Nevertheless, submitted the appellant, there are limits to the application of a statement of facts. The statement of facts could go no further than an admission as to the elements of the offence. This principle was drawn from the decision of the High Court in Meissner v The Queen [1995] HCA 41;184 CLR 132, and in particular the judgment of Dawson J at [19]:
19The appellant contends that endeavouring to persuade a person charged with an offence to plead guilty cannot constitute the offence of attempting to pervert the course of justice because an accused person has a right to enter a plea of guilty and to do so whether or not that person believes himself to have committed the offence with which he is charged. It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.
The Crown accepted that the reference to the victim’s son was not an integral part of any element of the offence.
The appellant also drew support from the decision of Mossop J in R v Shearer [2020] ACTSC 100 at [33] and [34]:
33I observe that, generally speaking, the court must take care to carefully consider the scope of the facts which are agreed. That is because the terms of the agreed facts are often negotiated and their terms reflect the agreement that the parties are able to reach in order to both permit the entry of a plea of guilty and to then avoid a contested facts hearing for the purposes of sentencing. Plainly enough, it is for that reason that parties and their legal representatives should carefully check the facts which are being agreed to: see R v Crowley [2004] NSWCCA 256 at [46].
34The agreement as to the facts may leave open the making of submissions as to what those facts establish beyond reasonable doubt. An example of such a case is R v Nozhat (No 2) [2019] ACTSC 81. In that case, the issue was at what point during an attempted importation of drugs the offender became reckless as to the possibility of the imported items being drugs. That was determined by the court based upon submissions made about what was established beyond reasonable doubt by the agreed statement of facts.
In my view the reliance placed on Meissner by the appellant is misplaced. The facts in that matter are of course very different and do not involve the sentencing of an offender. Meissner is certainly authority for the proposition that a person may enter a plea of guilty for many reasons and that the plea is an acknowledgement of the elements of a charged offence. But, with respect, it is far from an authority to say that the contents of a statement of facts tendered by consent, and without demur, cannot be a legitimate source for the drawing of conclusions on sentence.
As for Shearer, while as a general statement there is support for the appellant’s position in the above quoted paragraphs, there is a real distinction that arises from there having been a dispute raised about the facts as stated in the statement of facts.
As I have already said, the statement of facts in this case was tendered by consent and without any comment or qualification as to the acceptance, or otherwise, of its contents. The result of the tender was to place the statement of facts into evidence for all purposes (as for example in Adams v R [2018] NSWCCA 303 at [118]).
The statement of facts became Exhibit 1 (Transcript at page 4.08). Having arrived with this characterisation it was, absent any challenge, open to the Court to draw findings about the effects of the offence.
It follows that the reference to the victim’s son in the statement of facts was available to his Honour as the basis for his finding. Accordingly it is not necessary to decide if there is any corollary between the method of dealing with the contents of a statement of facts and the contents of a victim impact statement.
Turning now to the finding that the victim had been excluded from her community in both Australia and overseas, the position is different. This is because, as already stated, there is no source for the finding. It might be thought that because the Twic community existed outside Australia, obviously in South Sudan and perhaps in other countries around the world to which members of the community had taken up residence, there might be an effect outside Australia. While this conclusion is fair, it does not necessarily generate a further consequential conclusion that the harm to the victim in this case would be felt outside Australia.
I am satisfied that there was no basis upon which the Magistrate could have concluded that the “branding of the victim had the intended effect of having her excluded from” the Twic community overseas.
The next issue relates to the delay between the commission of the offence and sentencing. This was a period of three years said to be attributable to the difficulty in finding an appropriate interpreter (in the Dinka language), the appellant living in South Australia for about a year, his initial defence of the prosecution and the general preparation of the proceedings.
Although both parties initially addressed this issue through the topic of specific deterrence, after some discussion the real issue was reduced to this point: Was the Magistrate in error in failing to take into account that the appellant had committed no further offences, against the same or any other victim, during the three year interim period.
In his submissions on sentence the appellant’s legal representative said this to the Magistrate:
MR EDMONDS: But your Honour - so to try and finish the submission as to the need for deterrence, given we are three years down the track, given that there is no objective basis, in my submission, for your Honour to infer that just because of this sentencing proceeding, for example, things are going to flare up again three years after the last communication between the parties, and, again, particularly where there has been a plea of guilty that the defendant has voluntarily entered, he has had advice from two lawyers now and has freely entered this plea, your Honour can, in my respectful submission, have some real confidence that the defendant now accepts that regardless of his religious beliefs, this conduct is unacceptable, is against the law and will be punished and he accepts that there is punishment that he will need to serve, your Honour.
Your Honour, the submission is that there is a clearly a need for specific deterrence and general deterrence but it is perhaps not as high as one might infer at first blush and particularly not as high as it would have been if these matters or this matter was being dealt with three years ago.
Based on the above passages I accept that the submission was clearly made to the Court that the absence of offending over the three-year period should be taken into account.
There is no mention in the reasons for sentence of the issue of delay. The Crown submitted that I could draw an inference that it had been taken into account. I do not agree. The absence of further offending over the three years was an important point in the appellant’s favour. It should have been recognised, whether generally, or in consideration of specific deterrence. His Honour’s comments about specific deterrence, at [33], are appropriate but they leave out any consideration of the appellant’s conduct over the preceding three years.
Accordingly I think, in relation to delay, that error has been established.
I have thus identified two errors on the part of the Court below. As mentioned above, the Crown submitted that I should nevertheless dismiss the appeal because, notwithstanding the errors, no lesser sentence was appropriate.
Had the error been only that concerning the bullying allegation, I would probably have agreed. However I think the failure to give the appellant credit for his behaviour over the preceding three years, in reality his rehabilitation, does make a significant difference.
It is therefore necessary to re-sentence the appellant. I was informed that no further evidence would be placed before the Court, although I was told that the appellant’s wife had given birth to another child, raising the number of his dependents to five children and his wife.
As I discern the flavour of his Honour’s reasoning he intended to give the appellant a short but salutary period in full-time custody. I agree with this approach and I note that the appellant does not challenge the length of the overall sentence, namely five months.
It is also relevant that in re-sentencing I am conducting this exercise yet further in time from the commission of the offence. There is no suggestion that there has been any additional offending on the part of the appellant.
I intend to follow the same overall course as his Honour, except that I consider the period of 22 days already served in full-time custody as constituting the short and sharp lesson intended by his Honour.
The orders of the Court are:
(a)The appeal is allowed.
(b)The sentence and nonparole period imposed by Magistrate Stewart on 16 July 2020 are set aside.
(c)In lieu thereof (in respect of charge 3630/2018, contravening a personal protection order) the appellant is sentenced to 5 months’ imprisonment made up as follows:
(i)Imprisonment for a period of 5 months’ to commence on 23 September 2020 and end on 22 February 2021.
(ii)The term of imprisonment is suspended from today, upon the appellant entering into a good behaviour order for a period of 2 years, upon the core conditions of such an order, and the following additional conditions:
1.Not to post any material on any public media about the victim or any member of her family or the appellant’s cousin who is married to the victim.
2.Provide telephone and Internet provider details to ACT corrections and leave all public accounts on public settings.
3.Not to engage in threatening, harassing, intimidating, or offensive behaviour, or anything that amounts to personal violence towards the victim.
4.To accept the supervision of ACT corrections and obey any order relating to alcohol and drug testing.
(d)It is noted that the term of full-time custody was served by the appellant from 16 July 2020 to 6 August 2020.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 15 October 2020 |
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