Citation: R v Justin Michael Konemann [2007] NSWDC 113
Court: District Court of New South Wales
Date: 11 May 2007
Judge(s): Nicholson SC DCJ
Background
In April 2006, an unknown male entered a convenience store in Greenacre and attacked the owner, Sahil Kurdi, with an axe while demanding money. Kurdi refused and was struck on the forehead when he raised his arm to defend himself. The attacker then fled to a waiting car driven by the accused, Justin Konemann, who drove him away from the scene.
Konemann was charged with being an accessory before the fact to an assault with an offensive weapon with intent to rob, during which wounding occurred. He pleaded guilty to that charge, acknowledging his role as the driver who had been arranged before the robbery and who carried out the getaway.
The sentencing proceedings became complicated when Konemann gave evidence at the hearing that was in tension with what his plea of guilty necessarily admitted. The court was asked to consider whether, in those circumstances, the plea could properly stand.
Legal Issues
- What elements must an accused person have known, before the offence, in order to be guilty as an accessory before the fact to an assault with an offensive weapon?
- Whether Konemann's evidence at the sentencing hearing, including his claim that he did not know an axe was involved, was inconsistent with the admissions inherent in his guilty plea.
- Whether the court could or should accept a guilty plea where the accused's own evidence appeared to contradict an essential element of the charged offence.
Decision
The court identified the essential matters that the guilty plea necessarily admitted. To be guilty as an accessory before the fact to this offence, Konemann must have known before the crime: that someone in the store would be assaulted for the purpose of robbery; that the robber would be armed with an offensive weapon; that wounding was at least a contemplated possibility; and that he had agreed to assist in committing that crime.
Konemann's evidence, however, was that he noticed only an unidentified bulge in the principal offender's clothing and did not discover an axe was used until after his arrest. The court found this account was contradicted by several pieces of evidence. In a conversation with the car's owner shortly after the robbery, Konemann described the weapon as "his axe" and was aware that one of the victims had been hurt, both of which occurred well before his arrest. The court also noted that Konemann remained in the car with the engine running, refused to cooperate with Kurdi when challenged, and then stopped specifically to collect the fleeing robber.
On the basis of those findings, the court was satisfied beyond reasonable doubt that Konemann was a willing and loyal getaway driver whose role had been arranged before the robbery. However, the court expressed concern about whether Konemann had been fully advised that his plea amounted to an admission that he knew the principal offender was armed with an offensive weapon before the offence occurred. The court noted this tension between the plea, Konemann's own evidence, and item 17 of the agreed facts.
The court declined to proceed immediately to sentence. Instead, it adjourned the matter to allow Konemann an opportunity to confirm his plea. If confirmed, the court indicated it would proceed to sentencing. If not confirmed, the court stated it would reject the plea and list the matter for trial. The court also made clear it would not revisit the findings of fact it had already made.
Orders Made
- Matter stood over to 31 May 2007 at Penrith District Court for the purpose of clarifying the plea.
Key Takeaways
- A plea of guilty to being an accessory before the fact to an assault with an offensive weapon carries an inherent admission that the accused knew, before the offence, that the principal offender would be armed with an offensive weapon.
- Where an accused's evidence at a sentencing hearing contradicts an essential element of the charged offence, a court may decline to accept the plea without first giving the accused an opportunity to confirm or withdraw it.
- The District Court found that statements made by Konemann to a third party shortly after the robbery, in which he described the weapon and the victim's injury, were inconsistent with his claim that he did not discover those facts until after his arrest.
- Prior findings of fact made during sentencing proceedings do not automatically fall away if the court adjourns to clarify the plea; the court here expressly reserved its factual findings.
- Representation by experienced counsel at the time of plea is a relevant consideration, but does not of itself resolve whether the accused fully understood the admissions the plea entailed.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A(3)(d) (duress as a mitigating factor)
Cases cited: None cited in the provided text.