Kuol v Pruckner (No 3) - [2023] ACTSC 177

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kuol v Pruckner (No 3)
Citation:	[2023] ACTSC 177
Hearing Date:	12 July 2023
DecisionDate:	14 July 2023, 20 July 2023
Reasons Date:	27 July 2023
Before:	Baker J
Decision:	See [48]
Catchwords:	CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal against sentence – second breach of suspended sentence and Good Behaviour Order – demonstrated insight into offending – appellant displayed confusion regarding terms of Family Violence Order – appellant resentenced
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) ss 86(1), 107
Cases Cited:	Guy v Anderson [2013] ACTSC 5 Kuol v Pruckner (No 2) [2020] ACTSC 287 Kuol v Pruckner (unreported ACTSC, Penfold J, 23 March 2011) Pruckner v Kuol [2020] ACTMC 18 R v Collier (No 2) [2021] ACTSC 177 R v PM (No 2) [2015] ACTSC 358
Parties:	Deng Wac Kuol (Appellant) Ainslee Jae Pruckner ( Respondent)
Representation:	Counsel P Bevan ( Appellant) C Mutharajah ( Respondent)
Solicitors Bevan & Co Lawyers (Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	CA 27 of 2020
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Stewart Date of Decision: 16 July 2020 Case Title: Pruckner v Kuol Court File Number: CC3630 of 2018; CC5849 of 2018

BAKER J:

Introduction

The appellant comes before the Court having breached the conditions of a suspended sentence for a second time.

As a result of this breach, the existing suspended sentence and Good Behaviour Order (GBO) must be cancelled. I must consider whether to impose the suspended sentence, or to resentence the offender.

I have decided that it is appropriate to resentence the offender. These are my reasons for doing so.

Background

The index offence: Breach of a Personal Protection Order

On 28 April 2017, Magistrate Cook imposed a Personal Protection Order (PPO) on the appellant, as a result of the appellant posting offensive and harassing materials online.

A matter of weeks later, between 14 and 17 May 2017, the appellant breached the PPO by recording a video which he posted on Facebook. In that video, the appellant insulted a Sudanese female relative, accusing her of prostitution and witchcraft. The insults appear to have arisen solely from the fact that the woman had previously divorced her first husband and then lawfully married the appellant’s cousin. In a Victim Impact Statement, the woman spoke about the effect of the offending upon her, in particular, her fear about the effect of the Facebook post on her reputation in the community.

The appellant was charged with breaching the PPO imposed on 28 April 2017. On 16 July 2020, Stewart LCM imposed a sentence of 5 months’ imprisonment, to be suspended after 3 months: Pruckner v Kuol [2020] ACTMC 18.

The appellant appealed this sentence to this Court on two grounds: first, that the Magistrate had made findings of fact based on the Victim Impact Statement which were not open; and second, that the Magistrate failed to have regard to the delay in…

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: [2023] ACTSC 177
Decision Date

CaseChat Overview and Summary

In Kuol v Pruckner (No 3), the appellant, Deng Wac Kuol, appeared before Baker J in the Supreme Court of the Australian Capital Territory, having breached the conditions of a suspended sentence for a second time. The breach resulted in the cancellation of the existing suspended sentence and Good Behaviour Order (GBO), necessitating a reconsideration of the sentence. The court had to decide whether to impose the original suspended sentence or resentence the appellant.

The legal issues before the court included the applicability of section 107 of the Crimes (Sentence Administration) Act 2005 (ACT), which governs dealing with offenders guilty of an offence committed during the term of a good behaviour order, and the factors relevant to determining whether to impose a suspended sentence or resentence the offender. These factors include the proportion of the good behaviour order served, any rehabilitation attained, the nature and seriousness of the offence, and the offender's understanding of their obligations.

Baker J concluded that it was appropriate to resentence the appellant. The court found that the breach did not evidence an intention to disregard the obligation to be of good behaviour, particularly as the appellant appeared to misunderstand the terms of the Family Violence Order (FVO) due to language difficulties. The court also noted the appellant's efforts towards rehabilitation, including completing a family and domestic violence program and abstaining from alcohol. Given these circumstances, the court deemed it inappropriate to impose the original sentence of imprisonment. Instead, the court imposed a new suspended sentence of 5 months, backdated by 22 days to account for previous custody, and a 2-year GBO with additional conditions aimed at preventing further breaches and promoting rehabilitation.

The final orders included setting aside the previous sentences and imposing a new suspended sentence of 5 months imprisonment, to be suspended upon the appellant entering into a 2-year GBO. The new GBO includes conditions to abstain from alcohol and other drugs, accept supervision by ACT Corrective Services, and comply with directions relating to alcohol and drug testing.

Orders