R v Justin Michael Konemann [2007] NSWDC 113

New South Wales District Court

CITATION: R v Justin Michael Konemann [2007] NSWDC 113

JUDGMENT DATE: 11 May 2007

EX TEMPORE JUDGMENT DATE : 23 September 2007

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Stood over to 31 May 2007 at Penrith District Court for the purpose of clarifying the plea.

CATCHWORDS: Criminal Law - Sentencing - Plea of guilty to accessorial role - what plea embraces - accused evidence raises issues inconsistent with plea - query whether plea can be maintained.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

PARTIES: Regina Justin Michael Konemann

FILE NUMBER(S): 06/21/0270

COUNSEL: Accused: P. Winch

Crown: Ms F Gray - Solicitor for Public Prosecution SOLICITORS: Accused: Ms S Hall - Legal Aid Commission

JUDGMENT 1 On 21 April 2006 Sihal Kurdi, a small businessman running the Al Nour convenience store at Greenacre was confronted by an unknown male wielding an axe. That man was yelling "Give me the money; give me the money." The would-be robber was a big man, six foot tall and solid build, wearing a dark coloured balaclava. That axe was described as a medium-sized axe. I will come in more detail to that.

2 The unknown male armed with the axe was threatening Kurdi saying, "Give me the money or I'll kill you." Sahil Kurdi was brave and steadfast. "I'm not going to give you the money, you'd better get out." he said. "No I want the money. I'm going to kill you." said the unknown male. Sahil Kurdi was resolute. "No you're not going to kill me. You'd better get out before you get into any more trouble." he said.

3 The unknown male swung the axe in an overhead manner, apparently aiming for Sahil Kurdi's head. Kurdi raised his right arm in self defence. The axe, nonetheless, struck the right side of his forehead, causing a wound. The unknown male fled the store. Sahil Kurdi chased after him. There was a white Ford Laser parked nearby. Its engine was off. As the unknown male ran, with his balaclava still on and the axe still in his hand, the car started up. In circumstances to which I shall shortly come, the robber was driven away from the scene by the very person who had driven him to the scene, Justin Konemann.