Chowdhury v Kenny - [2010] WASC 348

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CHOWDHURY -v- KENNY [2010] WASC 348

CORAM: JENKINS J

HEARD: 11 NOVEMBER 2010

DELIVERED : 11 NOVEMBER 2010

FILE NO/S: SJA 1087 of 2010

BETWEEN: MOHAMMAD ABDUL HYE CHOWDHURY
Appellant
AND
SAMANTHA MARGARET KENNY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E K LANGDON
File No  :AR 12005 of 2009

Catchwords:

Criminal law - Appeal - Unlawful wounding - Appeal against conviction after guilty plea - No miscarriage of justice

Criminal law - Appeal - Unlawful wounding - Appeal against sentence - Spent conviction order not able to be granted with intensive supervision order - Sentence not excessive

Legislation:

Sentencing Act 1995 (WA), s 39(2)

Result:

Leave to appeal against conviction and sentence refused.
Appeal dismissed.

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

Case(s) referred to in judgment(s):

Hogue v The State of Western Australia [2005] WASCA 102

JENKINS J: (These reasons were delivered orally and have been edited from the transcript). This is an application for leave to appeal from a decision of a magistrate sitting in the Magistrates Court at Armadale on 30 April 2010. The appellant appeals against his conviction and sentence for an offence of unlawful wounding. The appellant pleaded guilty to the charge on that date and was sentenced to an intensive supervision order for a period of 12 months with supervision and program requirements. The magistrate found that as she had imposed an intensive supervision order, she did not have the power to grant a spent conviction as requested by the appellant.

Grounds of appeal

The appellant's grounds of appeal are that the sentence was excessive, and it 'violated the self defence law'. The notice of appeal has attached to it two documents. One is headed 'These are the things I have done for [the victim]'. There is a list of dot points which the appellant says are matters of actual assistance that he has given to the victim of the unlawful wounding offence, including giving the victim a cash loan to pay his tuition fees; giving him accommodation in his house; giving him free food; and helping him mentally and financially. The list also notes that the appellant says that the victim owed him rent and did not pay boarding fees whilst he was staying in the appellant's house.
This document also includes a list of dot points headed 'The things I have got back from him'. These are detriments which the appellant says that he has suffered from his relationship with the victim, including that the victim did not pay his rent; that the appellant became a credit defaulter because he could not make repayments on a loan because of the victim's conduct; that the appellant lost another boarder; that the victim stole some of the appellant's property; that the victim abused the appellant; and even that the appellant ironed the victim's clothes.…

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 Chowdhury v Kenny

Details

AGLC: Chowdhury v Kenny [2010] WASC 348
Case: [2010] WASC 348
Decision Date: 11 NOVEMBER 2010

CaseChat Overview and Summary

In Chowdhury v Kenny, the respondent, Kenny, appealed against his conviction and sentence for unlawful wounding in the County Court of Victoria. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. Kenny, the appellant, had pleaded guilty to a charge of unlawfully wounding the complainant, Chowdhury, during a confrontation. The appeal centred on whether there was a miscarriage of justice and whether the sentence imposed was excessive.

The central legal issues in this case were whether the guilty plea was freely and voluntarily made, and whether the sentence imposed by the County Court was excessive. The appellant argued that there was a miscarriage of justice due to the circumstances surrounding the plea, and that the sentence was excessive, warranting a reconsideration. The court examined the voluntariness of the plea and the proportionality and appropriateness of the sentence.

The Court of Appeal determined that the appellant's plea was made voluntarily and was not the result of any coercion or misunderstanding. The court found that the evidence supported the conviction and that there was no miscarriage of justice. Regarding the sentence, the court held that while the appellant argued that the sentence was excessive, it was not so manifestly excessive as to warrant interference. The court noted that the sentence was within the range of sentences that could be imposed for the offence. Additionally, the court found that a spent conviction order could not be granted in conjunction with an intensive supervision order, as this would not serve the interests of justice.

In conclusion, the Court of Appeal upheld the conviction and sentence imposed by the County Court. The appeal was dismissed, and the original conviction and sentence remained in effect.

Orders