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. 4 Justin Konemann has pleaded guilty to a charge of being an accessory before the fact to an assault by the unknown would-be robber whilst he was armed with an offensive weapon with intent to rob Sahil Kurdi and at the time of that assault, wounding Sahil Kurdi. He offers himself today to be held accountable for his criminal actions. 5 In this case an agreed statement of facts was tendered. For my purposes there are two agreed facts which need to be explored. Agreed fact(5) is in these terms. "The offender claims, and the crown does not agree, that the offender was acting under duress pursuant to section 21A(3)(d) of the Crimes (Sentencing Procedure) Act". Fact (17), "the offender claims and the crown does not agree, that he did not see the axe when Monz got back into the car and that he only discovered that an axe was used in the commission of the offence after his arrest". Inherent in fact (17) as I understand it is that the offender's position is he did not see the axe at all and only discovered that an axe had been used in the commission of the offence after his arrest. 6 To the agreed facts must be added this further evidence given by the accused before me in Court. Konemann's evidence was that he met a man named Monz at a third person's place. That man wanted him to drive up the road. He was asked only the once but felt intimidated and threatened. Monz appeared to him to be agitated. Monz was of Middle Eastern appearance. 7 The year before, Konemann had been struck with a stick and put in hospital for a week by a man of Middle Eastern appearance. Since that experience, Konemann had felt intimidated and threatened by men of Middle Eastern appearance. 8 After Monz and Konemann left the flat and were going downstairs, Konemann was told by Monz that there was going to be a robbery. He saw something in Monz's pants, a bulge in them, but he did not know what it was. After the incident he found out that it was an axe with a handle thirty-five to forty-five centimetres in length. 9 They went to a convenience store, he dropped Monz off and was parked, on this account, for fifteen to twenty minutes. I say on this account because in his interview he put the time as seven to eight minutes. He waited that time because he felt threatened. 10 He did not expect to get anything from the robbery. 11 Monz jumped in the car and he dropped Monz off at a park after the robbery. That statement is to be understood as accepting the proposition that there was a scuffle in and around the car prior to Monz jumping into the car. He understood someone got hurt but did not find that out until he went to prison. 12 The starting point for resolving the issue as to Konemann's knowledge of the existence of the axe prior to the assault upon Mr Kurdi is to understand the significance of the plea. The offender has pleaded guilty to being an accessory before the fact. The words of the charge refer to him aiding and abetting the principal offender. His plea admits being present, aiding and abetting when the crime was committed, an arrangement entered into before the crime is committed, but taking no part in the actual crime. However, the aider and abetter, in order to be guilty must be aware of the essential matters that constitute the offence, that is, what the plea admits. When I say must be aware, must be aware before the offence is committed. 13 In this case the essential matters constituting the offence are (1), he knew that someone in the store was to be assaulted for the purpose of him or her being robbed. (2), he knew the robber would be armed with an offensive weapon. (3), he contemplated at least the possibility that someone would be wounded by the actions of the robber and (4), he agreed to assist the robber so that that crime could be committed. 14 The offender's claim as presented in the agreed facts is that he only discovered an axe was used in the commission of the offence after his arrest. In evidence he notes something in Monz's pants, a bulge which he fails to identify. From his evidence is would appear his claim is, he never saw the axe, yet he is able to give its length as thirty-five to forty-five centimetres. That really describes a hatchet, sometimes called a tomahawk and sometimes referred to as a small axe. 15 A person who did see the axe was Rabhid Kurdi, he describes the axe he saw as a normal, plain wood handled axe. He says it was old. Sahil Kurdi, who was menaced with and struck by the axe describes it as a medium sized axe. Naser Farojani describes the axe as having a forty-five centimetre wooden handle. I have no idea how accurate or otherwise Farojani is with measurement. I regard the forty-five centimetre handle favourable to the defence and am prepared to accept that it was forty-five centimetres at least, but probably more. 16 Upon the accused returning to the apartment where he claims to have first met Monz, he told Susie Laxale, the owner of the apartment, "We've gone to Greenacre, Monz told me to pull up there." She said, "Where's there?" The accused said, "Just in front of the shop there. I stopped right outside the shop while the car was running, Monz has run in and attacked two guys with an axe." Ms Laxale said, "He attacked what?" The accused said, "He attacked two guys." Ms Laxale said, "With what?" The accused said, "An axe. His axe." Ms Laxale said, "Where did you see the axe come out of?" The accused said, "I didn't see the axe." Ms Laxale said, "What did you do then?" The accused said, "I had the car running. One of the guys came out and tried to attack me. Monz has jumped in the car and I drove off." The accused continued, "He forced me to drive to Greenacre and we done an armed robbery." Ms Laxale said, "Were the guys badly hurt?" The accused said, "One of them were." (My emphasis). 17 It was important for the accused to tell Ms Laxale because it was her car that had been taken and the driver's side window had been shattered as a consequence of its involvement in this incident. He clearly had to explain the shattering of that window to Ms Laxale. This conversation is inconsistent with the offender's evidence in two important respects. It establishes his knowledge of the axe and its ownership within a couple of hours of the offence and long before his arrest. It also establishes his awareness of Mr Kurdi's injury, again, long before his arrest and within hours of the incident. 18 There is another aspect of Ms Laxale's statement that bears upon the truth of the offender's account that he did not know before he left the flat that he would assist in a robbery. Her statement is in these terms, that at about 6.30pm that night, a male person came to her unit. He introduced himself as Amos' (Ms Laxale's partner's mate, Monz). "I was surprised to see him, because I'd never had him over before, and I'd never seen him before this date." Monz said, "A couple of boys said you have some pills Suze." She replied, "I've got nothing." The statement continues, "I allowed Monz into my unit. I didn't know what he wanted and I thought he would just leave after a couple of minutes [or less]. Harry appeared to not know Monz but I'm not sure about Justin. Monz stayed for fifteen minutes, he was mainly speaking to me and said a couple of things to Justin and Harry. I was speaking to Monz about the pills which he was determined to get but I had no pills. He was pacing around and looking nervous. He was definitely hanging out for something. I heard Monz say, 'How are you boys?' to Justin and Harry. About 6.45pm that night Justin said, 'I'm going to the shop.' At that time Monz said, 'Can you give me a lift bro.'" The statement continues, "I said, 'No he can't. He's only going to the shop and you're going elsewhere.' Monz said, 'Mate I need a lift.' Justin put his head down. Monz kept saying, 'I need a lift mate.' Justin said, 'Yeah.' Both Monz and Justin left my unit. I was aware that Justin was going to use my car." 19 The significance of that evidence is that the initiative to leave the flat comes from the offender. His claimed purpose is to go to a shop. It would appear to be a given that he would use Ms Laxale's car. As a matter of common sense, she would be unlikely to make the car available for a robbery. 20 It would make sense if there was a robbery planned, for Monz to meet the offender where the car was garaged. I have read carefully the offender's interview and my notes of his evidence. He gives evidence of Monz entering into other stores before the robbery but no evidence that he did. Yet that was his purpose in leaving the unit. I am satisfied beyond reasonable doubt the offender did not borrow Ms Laxale's car because he wanted legitimately to visit a store; but left for the purpose of giving Monz a lift. 21 Ms Laxale makes no mention of seeing anything in the unit during the fifteen minutes that Monz was there that would qualify as an axe or any other offensive weapon. I am satisfied the axe was never in the unit. I am satisfied the axe was collected by Monz after he had left the unit, whether immediately outside the unit or elsewhere I am unable to determine. 22 Monz appears to have been six foot tall. That evidence comes from a number of sources. On the offender's account, he sat in the front seat of a Ford Laser, a smallish to medium sized car with forty-five centimetres, or perhaps more, of axe handle stuffed down his trousers. It borders on the farcical to suggest a six foot solidly built man wearing, as the offender told police, tight clothing (see questions 259, 260) could, with forty-five centimetre of solid axe handle, accommodate the necessary bending of hips and knees without tearing his pants or having a protrudence that would be a source of ribald humour. 23 Finally, immediately after the principal offender had struck Sahil Kurdi, the principal offender ran from the shop. There is no suggestion he removed a balaclava that he was wearing or threw away the axe. As he approached, Konemann started the car, consistent with Konemann hearing or seeing the arrival of his co-offender. 24 The principal offender was at this stage concerned with two things, escaping capture and hiding his identity. To do the first, he would have remained armed with the medium sized axe. To do the latter, he would have remained shielded behind the balaclava he was wearing. The evidence is, he removed the balaclava as he entered the car (see Rabhid Kurdi). 25 Konemann's response to his co-offender's dilemma, as I say, was to start the Ford Laser as the principal offender was running towards him. There was, however, an altercation as the principal offender menaced Rabhid Kurdi and his father Sahil. The shop owner's son makes clear the principal was still armed with the axe and swinging it five metres from the Laser. It is inconceivable in those circumstances the offender did not see the balaclava at that time or at some other time. 26 I reject the accused's account of not seeing the axe as an attempt to minimise his involvement of full knowledge of the detail of his co-offender's intentions and capacity to carry out the robbery. The offender also claims he was intimidated by Monz. This is not a matter that I need to determine for the purposes of what is about to happen but I will indicate my view on that. 27 Of course, duress would be a defence but as I understand his evidence, he does not put the claim as high as that, but simply as a mitigating factor pursuant to section 21A of the Crimes Act. It is important to remember it was he who initiated the departure from the flat. It was he who insisted over the protestations of Ms Laxale, that Monz would accompany him. Konemann told the police he was not physically threatened in any way nor, as I understand his answers, verbally threatened (see questions 221, 225 ROI). He says Monz was demanding. He came to that view because Monz was directing him where to go. 28 During the confrontation between Konemann and Sahil Kurdi, the following exchanged occurred: Sahil Kurdi said, "Turn off the car, get out of the car." The accused, who was the drive said, "I have nothing to do with it [the attack and attempted robbery]". Kurdi said, "If you don't have anything to do with it, why not turn off the car and come outside." Kurdi's statement continues, "The driver didn't say anything and he then began to wind up the window because I put my hand inside the car and was trying to remove the keys from the ignition. The driver tried to wind up the windows very fast. I removed my hand from the car." Kurdi's statement continues, "I said, 'Just open the window, I'm not going to say or do anything.' The driver said, 'No, no, no.' It was at that point that the window was broken." 29 If the offender had nothing to do with it, and it would appear Kurdi was prepared to give him the benefit of the doubt, that was the time for Konemann to establish his bona fides. He did not do so. He drove off. At that stage, but for him the car was otherwise empty. He then stopped to collect Monz. That final act is only consistent with his concern for Monz and his desire that Monz escape capture. 30 It follows from that view of the facts that I am satisfied beyond reasonable doubt Konemann was a willing and loyal driver of a getaway vehicle, a role that had been ascribed to him before the robbery (see the plea) and carried out by him throughout the robbery and the following escape. 31 In light of the offender's denial as to his knowledge of the presence of the weapon other than his acknowledgement of seeing the bulge in the trousers of the principal offender, I have considered whether it is proper for me to accept his plea of guilty. He was at the time of plea represented by experienced counsel, who has been one of the public defenders for several years. 32 The issue was one flagged as a matter that was not agreed and in that sense, it might appear on the surface as one that could be determined by me. 33 I am having difficulty though, in assessing whether Konemann was fully informed that his plea amounted to an admission of the element of the principal offence, particularly his prior knowledge of the existence of the offensive weapon. 34 In those circumstances I intend to adjourn this plea, probably for three weeks. I will give to the accused an opportunity to confirm his plea, in which case I will then proceed with it. If he does not do so, I will reject his plea and set the matter down for trial. I should note, I do not intend to qualify in any way my findings of fact thus far made. I am however, concerned about the inconsistency inherent in the plea, the evidence and item 17 of the agreed facts. ADJOURNED TO THURSDAY 31 MAY 2007 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.