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. The appellant says the document is relevant to his appeal against sentence.
The second document is headed 'Reasons that forced me to do the immoral and shameful work with [the victim] ‑ self defence'. This document contains half a page of information relating to the appellant's knowledge of a previous assault that [the victim] had allegedly committed. Relevantly to the appeal against conviction, the document says:
At the time of accident with me, [the victim] was laughing and was ready to hit me physically. I am sure if he would hit me, I would be seriously injured because he knows ninjutsu. So to protect myself from him, I had done the shameful work and I am seriously regretted and paid very high cost. I have done this shameful act to save myself from his attack.
This additional material is not in the form of proper grounds of appeal. Nevertheless, because Mr Chowdhury, the appellant, is unrepresented, I will take it into account. I have spoken to him this morning about the relevance of that material. He has explained to me how he says it is relevant to his appeal. I am in a position then to consider it in its context.

Background

On 30 April 2010 in the Armadale Magistrates Court, the appellant pleaded guilty to an offence which alleged that on 30 November 2009 at Kelmscott, he unlawfully wounded [the victim]. The appellant, was represented in the Magistrates Court by a duty lawyer. After the appellant pleaded guilty to the charge, the prosecutor read the facts.
The prosecutor alleged that at about 11.45 pm one Monday, the appellant was at his home address in Kelmscott. The appellant and the victim were housemates and had shared a house since September 2009. The appellant spoke to the victim and they began to argue over money owed to the appellant by the victim. The victim told the appellant he had not been paid from his work and therefore he was unable to pay the money owed. The appellant continually asked the victim for the money, as he stated he had to pay the rent. The victim continued to claim he did not have the money to pay.
The appellant then became angry and picked up a 20 cm knife from the kitchen bench and pointed it towards the victim. The appellant used the knife to stab the victim once in the face near his right eye and once in his right shoulder. The knife caused a small laceration to the shoulder and a puncture wound to the victim's face, next to his eye. The victim locked himself in the pantry to prevent the appellant attacking him further.
The victim told the appellant to take him to the hospital, but the appellant stated he could not drive him as his vehicle was at the mechanic's workshop, and he was unable to drive the victim's vehicle, as it was a manual vehicle. The victim came out of the pantry and fled the house in his own vehicle. He went to the Kelmscott train station, where transit officers called for an ambulance. The appellant left the house at the same time on foot, but headed in the opposite direction. The victim went to the Armadale Hospital. He was later transferred to Royal Perth Hospital for surgery.
On the police's arrival at the appellant's address, nobody was home. However, shortly afterwards, the appellant arrived home after being advised by a friend to do so. He was taken to the Armadale police station. He made full admissions in regard to the offence.
The magistrate had the benefit of photographs of the victim's injuries. The photographs are in black and white, but they show an injury to the victim's left eye, some injuries to his lips, and an injury to his shoulder consistent with the facts as alleged by the prosecutor.
The duty lawyer then presented a plea in mitigation. I do not need to go into the details of that, as I will cover much of what the duty lawyer said to the magistrate when I deal with the magistrate's reasons for sentence. It is sufficient for me to say that the duty lawyer provided the magistrate with details of the appellant's personal antecedents. She told the magistrate that the appellant was at the time experiencing difficulties paying for his mortgage. He had been made redundant in 2009. She said that he had now started working in a service station.
The duty lawyer told the magistrate that the appellant had taken in the victim as a lodger to assist him with paying the rent, and that the victim had been there for about three months. She told the magistrate that during that three months, the pressure had been building on the appellant because the victim had refused to pay any rent as agreed beforehand. She also told the magistrate that the appellant had assisted the victim with his tuition but had not been repaid.
The duty lawyer told the magistrate about the financial pressure that the appellant was under, including that he had had his home phone and his mobile phone cut off. In respect to having his home phone cut off, the duty lawyer told the magistrate that that was because the complainant had been making overseas calls home, and presumably some large bill had been rung up accordingly.
In regard to the incident itself, the duty lawyer told the magistrate that during the incident, the appellant had asked the victim for money, the victim had told him that that he could not pay, and had 'laughed at his request'. The appellant said that he had 'just snapped'. The duty lawyer admitted that they were 'extremely serious facts'.
The duty lawyer told the magistrate that the appellant was remorseful for his offending, and that it was out of character for him. The duty lawyer told the magistrate that the reports before the magistrate commented that the appellant would be suitable for some counselling to deal with emotional management, anger management and financial management. She told the magistrate that the appellant was very motivated to attend counselling and willing to comply with any requirements the court may impose in that regard. The duty lawyer asked the magistrate to consider some sort of community disposition which would allow him to work on his outstanding issues, as opposed to a term of imprisonment.
The duty lawyer applied for a spent conviction order on behalf of the appellant. She submitted that the appellant had explained to her that he wanted to go back to leading a law‑abiding life and that he would be far more able to do so if he was able to develop his career and work in his chosen field, which he had excelled in. There were some letters handed up to the magistrate from previous employers, when the appellant was a maths teacher. Those documents related to the appellant's general character and professional attitude.
The prosecutor submitted that, in effect, the magistrate should not impose a spent conviction order. In response, the duty lawyer made some further submissions in respect to that issue. She said that the appellant had a masters degree and that he wished to pursue his chosen career in accounting. She submitted that it would be difficult for him to obtain such a position if he had a conviction of this type. She submitted that the appellant was of previous good character, and that he would be unlikely to re‑offend.
The magistrate then gave her reasons for sentence. She referred to the appellant's early plea of guilty and that he would receive credit for that plea. She referred to his excellent education. She referred to the circumstances of the offence, being that the appellant had snapped, and that the offending was a spontaneous or sudden act.
The magistrate said that there was no 'going past the fact that this is a very serious set of circumstances'. The magistrate said that she had seen photographs of the wound, and that one was very close to the eye. Her Honour made the point that she was not sentencing the appellant for something he had not done, but only for what he had done.
Her Honour referred to the fact that there had to be both specific and general deterrence, and denunciation of this type of offence. She made the point that it was not the sort of way to sort out a financial problem or financial stress. The magistrate referred to a psychological report and a pre‑sentence report she had received. She noted that both reports indicated that the appellant had very little empathy for the victim, and that he had minimised the severity of his offending and its impact on the victim.
Her Honour said that the psychological report had said that the appellant had difficulty in controlling his temper. She said that it was the psychologist's view that treatment would be challenging, and that the treatment process was likely to be difficult. The magistrate noted that that created a difficulty for her in terms of the sentencing process.
The magistrate said that a sentence of imprisonment was well within the realm of appropriate sentences for this type of offence, but having regard to the material before her and the very comprehensive plea that was put on the appellant's behalf, she was persuaded that she ought to give the appellant the opportunity to be supervised in the community. Her Honour said that she was going to impose an intensive supervision order for a period of 12 months. She said that that would mean that the appellant would be under supervision in the community for that period of time and that he must attend programs as directed.
The magistrate noted that the imposition of an intensive supervision order meant that she was unable to grant a spent conviction order. In respect to that, the magistrate said that she had turned her mind to a community based order, which would have enabled her to grant a spent conviction order. She said that she had 'determined that the offence is too serious and the issues that are raised, particularly in the psychological report', had lead her to conclude that the appellant needed more intensive supervision so that this offence was unlikely to happen again, or less likely to happen again.
On 18 May 2010, again in the Armadale Magistrates Court, the matter was mentioned before a different magistrate. This was apparently at the request of the appellant, who wished the court to grant a spent conviction order. At that time, the magistrate explained to the appellant that there was no power to grant a spent conviction order if an intensive supervision order had been imposed on an offender.

Appeal against conviction

The first matter to deal with is the proposed appeal against conviction. That appears to be brought on the basis that the appellant has a good defence to the charge, that being a defence of self defence. In Hogue v The State of Western Australia [2005] WASCA 102 Wheeler JA said:
It is no easy matter for an appellant to persuade a Court to set aside a conviction based on a plea of guilty. The appellant, in such a case, must show that there has been a miscarriage of justice: Borsa v The Queen [2003] WASCA 254 at [20] per Steytler J. The three well recognised circumstances (albeit not exhaustive) that will amount to a miscarriage of justice and result in the plea of guilty being set aside are: where the appellant did not understand the nature of the charge, or did not intend to admit guilt; where upon the admitted facts, the appellant could not in law have been guilty of the offence; and where the guilty plea has been obtained by improper inducement, fraud or intimidation, and the like: Borsa v The Queen at [20], Meissner v The Queen (1995) 184 CLR 132 at 157 per Dawson J, and cases there cited [22].
Turning then to those three recognised circumstances, the first being where the appellant did not understand the nature of the charge or did not intend to admit guilt. There is no indication before me that the appellant did not understand the nature of the unlawful wounding charge or did not intend to admit his guilt.
The appellant says that he was represented by a duty lawyer and that she did not take proper instructions from him. However, there is nothing in the transcript to indicate that there was any misunderstanding on the part of the appellant as to the charge he was facing, or to the fact that he was pleading guilty to it and, by that plea, admitting that he had committed the offence. Neither does the document which is attached to the notice of appeal indicate to me that the appellant did not understand the nature of the charge or did not intend to admit his guilt to it at the time that he was sentenced.
The second recognised circumstance is where upon the admitted facts the appellant could not in law have been guilty of the offence. The material attached to the notice of appeal does not indicate that the appellant could not in law have been guilty of the offence. It indicates that he may have been able to raise the defence of self defence. However, the material is by no means sufficient to satisfy me that he could not be guilty of the offence. To stab someone twice with a knife because someone was laughing at you and was 'ready to hit' you is material which falls substantially short of satisfaction that the offender could not be guilty of the offence.
The third recognised circumstance where an appeal against conviction after a guilty plea will be allowed is where the guilty plea has been obtained by improper inducement, fraud or intimidation and the like. There is no material before me to indicate that there was any such matter operating in this matter.
Thus, the three recognised circumstances which would justify the grant of leave to appeal against conviction being granted do not arise in this case. I cannot think of any other circumstance which would justify me in granting leave to appeal against conviction on the facts and circumstances of this case.
The mere possibility that the appellant is not guilty is insufficient to enable me to conclude that there has been a miscarriage of justice, or indeed that there is any reasonable likelihood of success of a ground of appeal against conviction. I would not grant leave to appeal against conviction.
Before I leave that issue, the appellant made submissions in relation to the duty lawyer and the legal system as a whole. Looking at the transcript of proceedings, it appears to me that the duty lawyer, as the magistrate said, made a comprehensive plea in mitigation on behalf of the appellant. There is nothing on the transcript to indicate to me that the appellant was not properly represented by the duty lawyer in the proceedings in the Magistrates Court.

Appeal against sentence

The second ground of appeal, or what I will call the second ground of appeal, relates to sentence. The appellant complains that the sentence was excessive, but in fact his major grievance is that by imposing an intensive supervision order, the magistrate could not then grant him a spent conviction order.
He says that he should have received a spent conviction order for the purposes of his rehabilitation. He says that the offence was out of character for him. He says that everybody is entitled to make a mistake. He says that the penalty imposed on a person otherwise of good character who makes a mistake should not be such as to make it impossible for them to obtain employment and to continue in a proper manner as a law‑abiding citizen.
The appellant says that due to his ethnic and religious background, he is someone who finds it more difficult than the average person to obtain employment, and the stain of a conviction will exacerbate that situation. The appellant has used phrases such as, the 'Law is abusing me,' the sentence was 'inhuman', the sentence will 'hamper my whole life', and it will 'destroy my life'. Those comments may be accepted as being exaggerations, but the sentiment is clear: the appellant believes that the sentence, by cutting off his opportunity to receive a spent conviction, was too harsh.
As the magistrate pointed out, the offence was very serious. Even accepting that the victim had laughed at the appellant and even that they were in a position where the argument might have become in some way physical, for the appellant to bring out a knife and to stab the victim twice escalated the incident beyond any reason. For the appellant then to leave the premises without obtaining medical assistance for the victim was also a relevant matter.
The magistrate took into account the appellant's good character, his plea of guilty, his good antecedents, and the problems that he would have in obtaining employment if he was convicted of the offence. The magistrate also took into account the material she had before her in the pre‑sentence report and the psychological report regarding steps which needed to be taken in respect to the rehabilitation of the appellant. The magistrate rightly took into account the need for a sentence which would be generally deterrent as well as specifically deterrent. She also took into account the need to denounce the offending conduct.

It is not a proper exercise of the sentencing discretion for a magistrate to consider whether or not to grant a spent conviction order before deciding what is the appropriate penalty for the offence. The Sentencing Act 1995 (WA) s 39(2) sets out the available penalties for an offender. The first four of those are penalties which may be imposed with or without making a spent conviction order. The fifth penalty is to impose an intensive supervision order and order the release of the offender. As the magistrate rightly found, there is no power to impose an intensive supervision order and to grant a spent conviction order.
The magistrate considered that it was necessary to impose an intensive supervision order rather than a community based order. In doing so, her Honour took into account all the relevant sentencing factors. She was required to balance those factors personal to the appellant with the need for a penalty which was generally deterrent and recognised the seriousness of the offence. Obviously, in doing that, which is the job of any magistrate, there will be times where those matters that are personal to an offender are not given priority. It is not the role of a magistrate simply to impose a penalty which suits the offender.
There is nothing in the transcript to indicate to me that the magistrate's sentencing discretion miscarried in this case. She weighed all the relevant factors and imposed a sentence which was open to her. No error being shown on behalf of the magistrate, this ground of appeal against sentence has no reasonable prospects of success, and I would not grant leave to appeal in respect to it.
For these reasons, I would not grant leave to appeal in respect to any ground of appeal which may be discerned from the appeal notice or the documents attached to it.
In oral submissions today, the appellant has complained about the fact that the intensive supervision order does not provide him with intensive supervision. He has said that those who are supervising him are 'simply playing games'. It is not my job to supervise or manage those who are administering the intensive supervision order. The appellant's comments do not lead me to believe that there was any error made by the magistrate.
The appellant has also complained, that although he has applied for Legal Aid, after wasting his time doing so, he was only then told that Legal Aid does not grant legal aid for single judge appeals. Again, it is not my job to supervise or manage those administering the legal aid system. I understand that Legal Aid WA will reconsider any application for legal aid if leave to appeal is granted in respect to a proposed ground of appeal in a single judge appeal involving a sentence of imprisonment.
For the reasons which I have given, leave is not granted in this case, and the appeal is dismissed.