NE v Pruckner - [2018] ACTSC 212

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	NE v Pruckner
Citation:	[2018] ACTSC 212
Hearing Date:	6 August 2018
DecisionDate:	6 August 2018
Reasons Date:	10 August 2018
Before:	Mossop J
Decision:	See [29]
Catchwords:	APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – appeal against non-association order – whether magistrate accorded procedural fairness before imposing non-association order – non-association order having the effect of separating married couple – order not sought by any party or mentioned in submissions – denial of procedural fairness established – appellant resentenced
Legislation Cited:	Crime (Sentencing) Act 2005 (ACT), ss 21, 22, 23 Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 Victims of Crime (Financial Assistance) Act 2016 (ACT), s 82
Cases Cited:	Pantorno v The Queen (1989) 166 CLR 466 R v Klickovic [2018] ACTSC 141 Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 Stead v State Government Insurance Commission (1986) 161 CLR 141
Parties:	NE (Appellant) Ainslie Pruckner (Respondent)
Representation:	Counsel J O’Keefe (Appellant) M Kent (Respondent)
Solicitors John O’Keefe (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 4 of 2018
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Boss Date of Decision: 10 January 2018 Case Title: Pruckner v NE Court File Number: CC2017/13369

MOSSOP J:

Introduction

This is an appeal from a decision of the ACT Magistrates Court on 10 January 2018. The appellant appealed the non-association order made by the magistrate pursuant to s 23 of the Crime (Sentencing) Act 2005 (ACT). At the hearing of the appeal, the Notice of Appeal was amended so as to challenge the whole of the sentence. The grounds of the appeal are that the magistrate failed to properly consider the relevant criteria for imposing a non‑association order, that the magistrate did not provide procedural fairness to the parties before imposing the non‑association order and that the non‑association order was manifestly excessive in the circumstances. At the conclusion of the hearing, I made orders allowing the appeal and resentenced the appellant to a sentence which did not involve a non-association order. These are my reasons for doing so.

The proceedings below

The appellant was charged with common assault upon his wife. That offence occurred on 14 October 2017. The appellant had come home drunk, had entered the residence and become angry because he wanted money from his wife. He lunged towards her and grabbed her shirt with both hands and pushed her backwards into the front door. He pushed her again, causing her to fall back into a table that was in the lounge room. She felt immediate pain in her back and right knee and yelled out for the appellant to get away from her. She pushed him away from her, causing him to fall backwards onto a table inside the front door and hit his head on a wooden wall decoration. This caused a laceration to…

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.

Continue reading NE v Pruckner

Details

AGLC: NE v Pruckner [2018] ACTSC 212
Case: [2018] ACTSC 212
Decision Date: 6 August 2018

CaseChat Overview and Summary

The appellant, NE, appealed against the sentence and a non-association order imposed by the Magistrates Court. The appeal centred around the procedural fairness afforded to the appellant before the imposition of the non-association order and the appropriateness of the sentence. The legal issues involved whether the magistrate had accorded procedural fairness to the appellant, particularly concerning the non-association order that separated the appellant from their spouse. The appellant argued that the non-association order was not sought by any party and was not mentioned in the submissions, leading to a denial of procedural fairness.

The court found that the magistrate did not accord procedural fairness to the appellant before imposing the non-association order. The order had a significant impact on the appellant's relationship with their spouse, yet it was neither sought by any party nor mentioned in the submissions. The court determined that the imposition of the order constituted a denial of procedural fairness. Additionally, the court reviewed the sentence imposed by the magistrate, finding it inappropriate. Consequently, the appeal was allowed, and the appellant was resentenced.

The court determined that the non-association order was not valid due to the lack of procedural fairness and that the original sentence was inappropriate. The magistrate was directed to resentence the appellant. The non-association order was quashed, and the appellant was resentenced by the court. This decision underscored the importance of procedural fairness in court proceedings, particularly in cases involving significant personal consequences such as separation from a spouse.

Orders

Orders of the court

See [29]

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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