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 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 sentencing the offender.
In a judgment delivered on 15 October 2020, Elkaim J found that error was established in respect of both grounds of appeal: Kuol v Pruckner (No 2) [2020] ACTSC 287.
His Honour allowed the appellant’s appeal and set aside the sentence imposed by Stewart LCM. His Honour noted that the Magistrate had intended to give the appellant a “short but salutary” period in full time custody: Kuol v Pruckner(No 2) at [38].
Justice Elkaim imposed a sentence of 5 months’ imprisonment, backdated to commence on 23 September 2020 and expiring on 20 February 2021, that sentence being suspended from the date of the judgment (namely 15 October 2020) upon the appellant entering into a GBO for a period of 2 years. The GBO was subject to the core conditions of such an order set out in s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT) and additional conditions directed at protecting the victim from further harassment.
The backdating of the period of imprisonment to 23 September 2020 (namely, a period of 22 days from the date of the appeal, 15 October 2020) reflected the previous period of full-time custody served by the appellant (from 16 July 2020 to 6 August 2020) which was solely referable to that charge.
The first breach of the suspended sentence
On 6 May 2021 (that is, after the expiry of the suspended sentence, but during the period of the GBO imposed by Elkaim J), the appellant went to the NRMA Motor Server Majura Park to collect his car, which had been left for repair. The appellant became angry with an employee of the NRMA about the replacement of his tyres. The appellant abused the employee, and ultimately spat at him.
The appellant was charged with common assault. He pleaded not guilty, denying that he had spat at the employee. In a judgment delivered on 23 August 2022, Lawton LCM found the offence proved beyond reasonable doubt. On 11 October 2022, Lawton LCM sentenced the appellant to a GBO of 3 months, with core conditions.
The appellant’s conviction for this offence constituted a breach of the suspended sentence order imposed by Elkaim J on 15 October 2020. The breach proceedings came before Elkaim J on 30 November 2022. Both the offender’s counsel and the prosecution agreed that the “appropriate course” was for the offender to be resentenced on the same terms. His Honour agreed that this approach was appropriate.
Accordingly, his Honour imposed a suspended sentence of 5 months imprisonment, to commence on 23 September 2020 and expiring on 22 February 2021. The sentence was suspended from 15 October 2020 upon the appellant entering into a GBO for a period of two years. This sentence was again backdated to take account of the 22 days of pre-trial custody previously served by the appellant.
On 6 July 2022, the Magistrates Court imposed a final Family Violence Order (“FVO”) on the appellant, in respect of his partner (“the Protected Person”). This order prohibited the appellant from being on premises where the protected person lives (except in the company of an officer of the Australian Federal Police to collect his belongings or in accordance with any parenting order). The order also prohibited the appellant from being within 50 metres of the Protected Person (again with exceptions, including for facilitating contact handover of children).
On 6 December 2022, which was less than a week after Elkaim J imposed the new suspended sentence, the offender breached this suspended sentence by contravening the FVO.
The Police Statement of Facts for this offence records as follows:
On 6 December 2022, [the Protected Person] called the [appellant] and asked him to attend her residence to collect his clothing. The [appellant] attended the house. After some time, [the Protected Person] asked the [appellant] to leave, which he refused. The [appellant] was intoxicated and feeling unwell.
The Police Statement of Facts further states that the Protected Person called police at about 2:16pm and said that the appellant was at her house and was refusing to leave. When police attended at 2:40pm, they observed the appellant lying in a bed in the house. The appellant was arrested and transported to the ACT Regional Watch House. Police did not offer the appellant an opportunity to be interviewed, because of his level of intoxication.
The appellant gave evidence in the proceedings before me. In that evidence, the appellant said that he only attended the house because he was invited to by the Protected Person. He said that he drove to the house and stayed for about 6 hours. During those 6 hours, he consumed about half a bottle of alcoholic spirits. He said that he became unwell as a result of this alcohol consumption, and for this reason he was not able to leave when the Protected Person asked him to.
The appellant said that the Protected Person only asked him to leave when she discovered him on the bed talking on the phone to another woman.
Pre-Sentence Reports
I received a copy of the Court Duty Report dated 1 May 2023 and a Pre-Sentence Report (PSR) dated 3 July 2023.
Both reports summarised the appellant’s background. The appellant was born in Southern Sudan and moved to Uganda when he was nine years old with other family members. He described growing up in a positive household unaffected by alcohol or violence, however he reported his childhood was traumatic owing to ongoing war in Sudan. The appellant migrated to Australia in 2006 on a humanitarian visa. His mother resides in Canberra and his father resides in South Sudan.
Although the PSR commented that “previous periods of supervision appear to have had little deterrent effect on [the offender], who has been convicted of breach of GBOs on four occasions”, the author spoke positively of the offender’s engagement with the service in the term of his current GBO. The author reported that:
During the term of his current GBO [the offender] has actively engaged with this Service and has been compliant with his supervision obligations. He has demonstrated insight into his risk factors and verbalised motivation to move away from criminal offending. As of the date of this report [the offender] had completed the majority of the EQUIPS Family and Domestic Violence [EQUIPS FDV] Program.
The PSR author noted that the offender had also demonstrated insight into the role alcohol has played in his offending history. The PSR author noted that ACT Corrective Services records confirm that the offender completed the Alcohol Drug Awareness and Harm Prevention Training (ADAPT) Program and the SMART Recovery program in 2016.
The PSR author stated that the appellant had reported abstinence from alcohol since 2022, advising that he had developed serious liver damage due to his long history of alcohol consumption, which caused him to be hospitalised for a period. The appellant advised that his doctor’s most recent advice was to cease drinking altogether. He stated that he intended to comply with this advice. The author noted that the offender is regularly subject to urinalysis and blood alcohol testing by Child and Youth Protection Services (CYPS) to continue visitation with his children. CYPS have advised that the appellant has not provided a positive sample for alcohol.
Concerningly, both the Court Duty Report and the PSR reported that the appellant lays blame on the victims for his present offending. The focus of the PSR was on the index offence (namely, breach of the PPO). The appellant told the author of the PSR that “he felt the offence was justified as the victim had violated cultural norms”. The PSR also noted that ACT Police had raised concerns with ACT Corrective Services regarding ongoing harassment online. The PSR indicates that, as of June 2023, the appellant was made subject to a further PPO which includes a provision that he not engage in behaviour that constitutes personal violence online. The appellant told the PSR author, and gave evidence before me, that he intended to comply with these obligations.
The PSR and Court Duty Report recorded the victim as expressing different views about the offending. The Court Duty Report recorded that the victim had contacted ACT Corrective Services and advised that they did not have concerns regarding their need for protection from violence or harassment from the offender. The PSR Report recorded that the victim had contacted ACT Corrective Services and reported continued concerns about their need for protection from violence or harassment from the appellant.
This apparent difference may stem from the two reports making reference to the different victims of the offending, namely the victim of the index offence on the one hand, and the victim of the second breach offence on the other. It is not clear which report refers to which victim.
Consideration
Section 107 of the Crimes (Sentence Administration) Act provides:
107 Offence committed while under good behaviour order
(1) If the Supreme Court finds an offender guilty of an offence committed during the term of the offender’s good behaviour order, the court may deal with the offender under this part for breach of the offender’s good behaviour obligations.
(2) If the Magistrates Court finds an offender guilty of an offence committed during the term of the offender’s good behaviour order, and the order was made or changed by the Supreme Court, the Magistrates Court must, in addition to dealing with the offender for the offence, commit the offender to the Supreme Court to be dealt with under this part for breach of the offender’s good behaviour obligations.
(3) For subsection (2), a magistrate may remand the offender in custody until the offender can be brought before the Supreme Court.
Note For remanding or granting bail to the offender, see the Bail Act 1992.
Section 107 requires the Court to cancel the GBO, and either impose the suspended sentence or resentence the offender for the offence.
The factors relevant to the question of whether to impose the sentence or to resentence were set out by Loukas-Karlsson J in R v Collier (No 2) [2021] ACTSC 177 at [43], as follows:
(a)The proportion of the good behaviour order served;
(b)Any rehabilitation attained prior to the breaching conduct;
(c)The nature of the offence which breached the order, including whether it is of similar conduct;
(d)The relative seriousness of the offence causing the breach (whether imposing the sentence would be disproportional to the gravity of the breach): R v Curtis (No 2) [2016] ACTSC 34 at [18]-[19];
(e)The actual facts of the matter for which the offender was first sentenced: R v Beniamini(No 2) [2017] ACTSC 32 at [53];
(f)Whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour;
(g)Whether the offender has received any warnings with respect to breaches;
(h)The level of understanding of the offender of his obligations under the terms of the order and the consequences of a breach: The Queen v PM (No 2) at [20]-[22]; and
(i)The nature of judicial and community resources previously devoted to the offender: R v Bennett [2017] ACTSC 104 at [11].
In the present case, the breach occurred less than a week after the renewed suspended sentence had been imposed. The offender had previously served 6 months of the GBO prior to the first breach.
As noted above, the author of the PSR has stated that the appellant has engaged satisfactorily with the service during the term of his current GBO. The author of the PSR also noted that the appellant has stable employment, finances, and accommodation, and that he has family and social support. The author expressed the view that if the appellant continues to demonstrate active engagement in targeted interventions, it is likely that his risk of reoffending will reduce.
It is of concern that the present offending involved the consumption of a large amount of alcohol, despite alcohol having contributed to prior offending on behalf of the appellant (see Kuol v Pruckner (unreported ACTSC, Penfold J, 23 March 2011)), despite drug and alcohol testing being a condition of the appellant’s GBO, and despite the appellant disclosing to the author of the Court Duty Report that he had a “history of problematic alcohol usage”. However, the appellant’s liver damage has now reached a stage where any usage of alcohol will result in illness. The appellant has said that he intends to remain abstinent from alcohol.
Further, I accept the offender’s solicitor’s submission that the type and extent of the offending over the years since 2017 has reduced. Specifically, the appellant’s criminal history from 2007 to 2017 records numerous convictions, including for assault (including common assault, assault occasioning actual bodily harm, reckless infliction of grievous bodily harm), property damage, breach GBOs and trespass. Since the 2017 offending that gave rise to the first suspended sentence, the appellant has offended on two occasions: the common assault that gave rise to the first breach, and the present offending.
The conduct that gave rise to the original suspended sentence was serious. The offender harassed and intimidated a female relative online. That conduct had a significant impact upon the victim.
The nature of the most recent breach, namely a contravention of the FVO, is similar to the conduct that gave rise to the original suspended sentence (breach of a PPO). However, as the prosecutor accepted, the present offending involved less serious conduct than the conduct that gave rise to the original suspended sentence.
In his evidence before me, the appellant displayed some confusion about the terms of the FVO. He appeared to be of the view that he had not breached the FVO because the Protected Person had invited him over. He said that he was unable to leave when the Protected Person asked him to, because he was too unwell to do so. This does not excuse the offending. However, I do accept that there appeared to be some confusion arising from language difficulties. English is not the appellant’s first language, and it appears that he did not fully appreciate that the FVO prohibited him from attending the Protected Person’s residence on her invitation. In these circumstances, I do not consider that the breach evidenced an abandonment of an intention to be of good behaviour.
This is the second breach of the suspended sentence. When the GBO was imposed for a second time on 30 November 2021, the appellant’s solicitor undertook to explain this order to him. The appellant has been warned about the consequences of breaches.
As the prosecutor submitted, this is the sixth proceeding since the commission of the original offence. Substantial resources of the judiciary and ACT Corrective Services have been expended in respect of the offender since the imposition of the original suspended sentence.
Determination
There is no presumption in favour of imposing a suspended sentence upon breach: Guy v Anderson [2013] ACTSC 5. However, public confidence in the regime of suspended sentences requires that contraventions of the GBOs to which they attach be regarded seriously by the Court: R v PM (No 2) [2015] ACTSC 358 at [19].
This is the appellant’s second breach of his suspended sentence. He has previously breached numerous forms of court order, including PPOs, FVOs and GBOs.
I have given careful consideration to the question of whether the suspended sentence should be imposed as a consequence of the present breach. On balance, I have concluded that it should not. In reaching this conclusion, the factors that I consider carry the most weight are that the circumstances in which the appellant breached the FVO involved the Protected Person contacting the appellant and inviting him over; and that the appellant does not appear to have fully appreciated that attending the Protected Person’s house in those circumstances would breach the conditions of his suspended sentence.
It follows that I must resentence the appellant. I have carefully considered whether the “short but salutary” three month sentence of imprisonment originally imposed on the offender by Stewart LCM should be imposed at this time. Again, on balance, I have concluded that it should not. In my view, such a course would not be appropriate in the circumstances in which the breach occurred, namely attending the Protected Person’s house at her invitation. I have also taken into account that there has been some progress toward rehabilitation on the part of the appellant, in particular his completion of the EQUIPS FDV course and his greater understanding of FVOs. In my view the imposition of a period of full-time imprisonment would not be conducive to his ongoing rehabilitation. In particular, I note that such a course would be likely to jeopardise the appellant’s present employment.
I will sentence the appellant to a further suspended sentence of 5 months, with a GBO of 2 years. As with the previous suspended sentence, the term of imprisonment will be backdated by twenty-two days to take into account the appellant’s pre-trial custody. That sentence will be suspended as from today. In addition to the conditions which previously attached to the GBO, I will also make it a condition of the order that the appellant abstain from using alcohol and other drugs.
The appellant must understand that this leniency is unlikely to be extended a third time. He must take care to comply with the conditions of the GBO and to comply with all directions of ACT Corrective Services.
Orders
On 14 July 2023 I made the following orders:
1.The original sentence of 15 October 2020 is set aside.
2.Mr Kuol is resentenced on the same terms of the original sentence, except that the orders date from today:
a) The appeal is allowed
b) The sentence and non-parole 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 22 June 2023 and expiring on 21 November 2023.
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.
5.That the appellant accept the supervision of ACT Corrective Services for the period deemed necessary by ACT Corrective Services;
6.That the appellant not consume alcohol, cannabis, illegal drugs, or any prescription drugs not prescribed to him;
7.The appellant report to ACT Corrective Services within 48 hours of entering this order.
However, on reflection, I have formed the view that it is only necessary for me to set aside the sentence imposed by Elkaim J. Accordingly, on 20 July 2023 with the consent of the parties, I vacated the orders I made on 14 July 2023 and made the following orders:
1.I vacate the orders made by myself on Friday 14 July 2023.
2.The sentence imposed by Elkaim J on 15 October 2020 is set aside.
3.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:
a)Imprisonment for a period of 5 months to commence to 22 June 2023 and expiring on 21 November 2023.
b)The term of imprisonment is suspended from 14 July 2023, 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:
(ii)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.
(iii)Provide telephone and Internet provider details to ACT corrections and leave all public accounts on public settings.
(iv)Not to engage in threatening, harassing, intimidating or offensive behaviour or anything that amounts to personal violence towards the victim.
(v)To accept the supervision of ACT Corrections and obey any order relating to alcohol and drug testing.
(vi)That the appellant accept the supervision of ACT Corrective Services for the period deemed necessary by ACT Corrective Services;
(vii)That the appellant not consume alcohol, cannabis, illegal drugs, or any prescription drugs not prescribed to him;
(viii)The appellant report to ACT Corrective Services within 48 hours of entering this order.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A Bucci Date: 27 July 2023 |
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