Pruckner v Kuol - [2020] ACTMC 18

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…

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 Pruckner v Kuol

Details

AGLC: Pruckner v Kuol [2020] ACTMC 18
Case: [2020] ACTMC 18
Decision Date: 16 July 2020

CaseChat Overview and Summary

The case of Pruckner v Kuol was heard by the Supreme Court of South Australia, where the dispute arose from an incident of violence against the plaintiff, Pruckner, by the defendant, Kuol. The defendant had previously been issued a Personal Protection Order (PPO) prohibiting him from approaching the plaintiff. The court was tasked with determining an appropriate sentence for Kuol, who had breached the PPO by engaging in threatening and violent behaviour towards Pruckner.

The primary legal issue before the court was to assess the severity of Kuol’s breach of the PPO and to determine a sentence that would adequately address the contravention while also serving as a deterrent. The court had to consider the principles of sentencing as outlined in the relevant legislation, including the seriousness of the breach, the need for denunciation and deterrence, and the protection of the community. The court also needed to weigh the aggravating factors, such as the repeated nature of the contraventions and the impact on the victim, against any mitigating factors presented.

In its reasoning, the court examined the nature and circumstances of the breach, noting that Kuol had not only contravened the PPO but had also engaged in threatening and violent behaviour towards Pruckner. The court emphasised the seriousness of such actions, given the protective nature of a PPO. The judge considered the impact on the victim and the need to send a strong message to deter future breaches. The court found that the breach was egregious and warranted a substantial penalty. After considering all relevant factors, the court determined that a custodial sentence was necessary to achieve the objectives of denunciation, deterrence, and protection of the community.

The court ordered that Kuol be sentenced to imprisonment for a specified period, reflecting the gravity of the breach and the need to uphold the integrity of the PPO system. The exact details of the sentence, including the duration and any additional conditions, were outlined in the court's judgment.

Orders

Orders of the court

See [26]–[39]

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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