Pruckner v Kuol
[2020] ACTMC 18
•16 July 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Pruckner v Kuol |
Citation: | [2020] ACTMC 18 |
Hearing Date(s): | 8 July 2020 |
DecisionDate: | 16 July 2020 |
Before: | Magistrate Stewart |
Decision: | See [26]–[39] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Contravention of Personal Protection Order |
Legislation Cited: | s 374 Crimes Act 1900 (ACT) ss 13(3)(g), 33(1) (d), (f), (o) Criminal Law Sentencing Act 2005 s 33(1) (f) Criminal Law Sentencing Act 2005 s 35(2) Personal Violence Act 2016 |
Cases Cited: | R v Johnson [2017] ACTSC 125 The Queen v Deng Wac Kuol (Unreported, Supreme Court of Australian Capital Territory, Penfold J, 23 March 2011) SCC NO 298 of 2009 |
Parties: | Pruckner (Informant) Deng Wac KUOL (Defendant) |
Representation: | Solicitors K. REARDON (Crown) P. EDMONDS (Defendant) |
File Number(s): | CC18/03630 |
MAGISTRATE STEWART:
SUMMARY OF FACTS
Deng Wac Kuol pleaded guilty to an amended count of Contravening a Personal Violence Order pursuant to s 35(2) the Personal Violence Act 2016 on 08 July 2020 - the morning of his hearing. A Dinka interpreter was present for the proceedings and the defendant was encouraged to use the interpreter and did so when he required his assistance.
Both the defendant and the victim are members of the Twic family and are of Sudanese origin.
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.
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.”
The Order was made for 12 months from that date.
Only 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.
I 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, Mary Arok, had previously divorced from her first husband and then later lawfully married the defendant’s cousin.
This 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.
Through his solicitor the Defendant accepted that by posting the material on Facebook he caused the victim to be ostracized in the way that she alleged to police. He apologised for the harm he has caused to Mary Arok. Importantly, Deng Kuol retracted the allegations that he aired on Facebook about Mary Arok being a witch and prostitute. He did this with the benefit of a Dinka interpreter being present, so there can be no mistake about those allegations always having been false.
SUBJECTIVE FEATURES
The Defendant has a significant history across several Australian jurisdictions and was first convicted of a criminal offence in November 2007 in the Australian Capital Territory Magistrates Court in November 2007 for Common Assault. He was sentenced by way of a Good Behaviour Order (GBO) on that occasion. In September 2009 he was convicted of the offence of Damaging Property. That conviction breached the GBO for the 2007 Common Assault, but no action was taken on the breach. A further GBO was imposed.
In September 2010 he was again convicted and sentenced to a GBO for the offence of Damaging Property and this conviction caused a further breach of the GBO imposed in September 2009.
In March 2011 the Defendant was convicted in the Supreme Court for the offences of Common Assault and Assault Occasioning Actual Bodily Harm. He was sentenced to GBOs on both charges.
In October 2013 the Defendant was convicted of the offences of Assault Occasioning Actual Bodily Harm and Failing to Appear and was sentenced to six months imprisonment. He served the sentence by way of periodic detention after having spent the first 23 days in custody. This breached the Supreme Court GBO as the breaching offence was committed in May 2011 – just two months after the lenience extended by way of sentence in the Supreme Court for the same offence type. No further action was taken on the breach.
In January 2014 the defendant was convicted in this Court of Trespassing on Premises and fined.
In February 2015 the Defendant was convicted and sentenced in this Court to a suspended sentence of 3 months for Contravening a Protection Order.
In July 2016 The Defendant was convicted for the offence of Recklessly Inflicting Grievous Bodily Harm in the Supreme Court and sentenced to 30 months imprisonment to be served by way of an Intensive Corrections Order (ICO).
The offending in the present matter breached the ICO, but the ICO has now expired.
In September 2017 the Defendant was convicted of a Level 4 PCA offence with a blood alcohol reading of 0.317. This offending occurred in June 2016 and so pre-dated the ICO that was imposed July 2016 in the Supreme Court.
The Defendant committed offences interstate after the Supreme Court ICO imposed in July 2016 had expired. He was convicted of Assault Police and Hinder Police in June 2019 in South Australia and sentenced to time served in custody – a little less than two months if the record is correct.
The defendant has chosen to marry one wife despite his culture allowing him to marry several with social impunity. They have four children and his wife is pregnant with their fifth.
I was provided with part of the transcript from sentence proceedings before Her Honour Justice Penfold in March 2011.[1] The Defendant is now 32 years old and his personal history is tragic – he was a child soldier in the People’s Liberation Army in Sudan. He witnessed the killing of his grandfather at the age of 12 and commenced, with his family, the process of emigrating to Australia through a refugee camp in Kenya.
[1] The Queen v Deng Wac Kuol SCC NO 298 of 2009, 23 March 2011.
He submitted through his solicitor that he has risen to a position of power and leadership within his community. Thus, his words have great effect and influence within that community and he has the ability to choose how he influences Twic family members.
The Defendant has been diagnosed with Post Traumatic Stress Disorder arising out of his childhood trauma. That illness has, in the past, left him prone to acting impulsively with little provocation. This, combined with a history of binge drinking alcohol goes some way to explaining his history of violence and persistent refusal to abide by Court orders.
It was recognised as early as 2008 that the Defendant would require consistent therapy to overcome his manner of responding to threats.
No material was put before the Court that would provide a basis for concluding that the Defendant has taken up the challenge of dealing with his past and how it influences his choices in the present. Rather, his criminal history shows that any efforts since 2008 have failed in their effect. Further, it is noted that this offending is a calculated response to a romantic attachment - not a physical response to immediate violence.
CONSIDERATION
Mr 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.[2]
[2] See ss 33(1)(d) and (f) Criminal Law (Sentencing) Act 2005
It is, objectively, in the upper reaches of seriousness for a remote and non-violent breach of a PPO.
The maximum penalty for an offence under s 35 (2) of the Personal Violence Act is 500 penalty units, 5 years imprisonment, or both. The prosecution elected for summary disposal and as such, the maximum penalty that can be imposed by this Court is a fine of $5,000 or 2 years imprisonment.[3]
[3] s 374 Crimes Act 1900 (ACT)
The Defendant chose to abuse his position of power in his community and ensure that a woman who his cousin chose to marry would be excluded from their community. The disparity In social position and power between offender and victim is obvious in this matter and that disparity was exploited by the Defendant in circumstances where he knew that his victim would suffer from his behaviour. It was also a demonstration of blatant disregard for a very specific lawful order of this Court.
The fact that he has apologised and told that Court that his Facebook allegations were retracted might go some way to repairing the damage that he has done and has been given significant weight in arriving at a sentencing outcome.
Even though the Court could not take any preference into account[4], I note that the victim has not sought to influence the sentence of the Court in any way.
[4] R v Johnson [2017) ACTSC 125 at {21}
I have taken all of the objective and subjective features of this matter into account. I am acutely aware that the Defendant is the sole bread winner for a growing family.[5]
[5] S 33 (1)(o) Criminal Law (Sentencing) Act 2005
Because of the nature of the offending and the defendant’s previous inability to complete sentencing orders without breaching them there is a need for specific deterrence in this sentence. The offending needs to be denounced and the community has a real need for protection from breaches of orders imposed to protect vulnerable people.[6]
[6] S 7 Crimes (Sentencing) Act 2005
The purpose of the Personal Violence act is to put orders in place so that behaviour like that featured in this charge does not occur. The broader community also needs to be reminded that breaches of Personal Protection Orders or Personal Violence Orders will not be tolerated by the court.
I have come to the conclusion that the only appropriate sentence is one of imprisonment. Mr Kuol has failed to abide by nearly every sentencing order that the ACT Courts have imposed. He breached an ICO by committing this offence. The Court is informed by the fact that a warrant had to be issued for the arrest of Mr Kuol for this matter in March 2018 – a time when he had another 10 months or so to serve by way of ICO imposed by the Supreme Court in July 2016. He was not brought before the Court until 19 September 2019.
Despite considering each of the options for imprisonment, I cannot see how it is appropriate for this Court to impose a further sentence to be served by way of a wholly suspended sentence or ICO. I would have imposed six months imprisonment in the circumstances of this matter, but I have reduced that by a month to reflect the late guilty plea to five months – a discount of about 16%.
Despite what I have said just above about suspended sentences I will partially suspend this sentence for two reasons: The sentence is too short to impose parole; and the victim and the community need the protection of an extended order to ensure that the Defendant has the real threat of a return to custody if he re-offends.
I have utilised the power in s 13 (3) (g) of the Criminal Law (Sentencing) Act to impose special conditions for the Defendant’s GBO. It is no secret that they mirror some provisions which might be imposed on a PPO by the Court. In my view these conditions are not inconsistent with the sentencing legislation.
SENTENCE
Mr Kuol, the sentence of the Court is as follows:
1) You are sentenced to five months imprisonment to date from today.
2) The sentence will be suspended after you serving three months. When you are released you will be placed on a Good Behaviour Order for the period of 2 years.
3) It will be a condition of that order that you not post any material on public media about Mary Arok or anyone in her family, or your cousin whom she married.
4) It will be a further condition that you provide your telephone subscriber details and any internet provider details to ACT corrections and leave all public accounts that you have on public settings.
5) You are not to engage in threatening, harassing, intimidating, or offensive behaviour, or anything that amounts to personal violence towards Mary Arok.
6) You will be supervised for the period of the order and subject to any alcohol or drug testing as directed.
| I certify that the preceding 39 numbered paragraphs are a true copy of the Reasons for Judgement of his Honour Magistrate Stewart Associate: Date: 16 July 2020 |
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