Kennedy v R

1. [1]

   On 20 November 2010 Stanley Bruce Davies was brutally bashed at his Kempsey home. The house was ransacked.

2. [2]

   Mr Davies was not found until the following afternoon. He was taken by ambulance to Kempsey hospital and thereafter taken by air to the John Hunter Hospital in Newcastle. He had extensive and irretrievable brain injuries consistent with multiple blows from a blunt object. On 26 November 2010 his life support was turned off.

3. [3]

   Three people were arrested and charged with his murder. On 8 December 2010 when a search warrant was executed by police on premises at Dondingalong Richard Smith was arrested and charged. On 27 June 2012 Steven Smith was arrested and charged. On 2 July 2012 the Appellant Raymond Kennedy was arrested and charged.

4. [4]

   On 1 February 2013 Richard Smith pleaded guilty to Mr Davies’ murder. On 5 April 2013 Steven Smith and the appellant were jointly ordered to stand trial on 7 June 2013 before the Supreme Court sitting at Port Macquarie. That trial date was later vacated. A new trial date was fixed for 18 November 2013.

5. [5]

   Steven Smith was re-arraigned on 2 October 2013 and entered a plea of guilty to the indictment charging him with Mr Davies’ murder. He also pleaded guilty to other unrelated offences.

6. [6]

   On 6 November 2013 the Appellant was arraigned before Barr AJ in the Supreme Court in Sydney. He entered a plea of guilty. The sentence proceedings were adjourned for hearing on 15 November 2013.

7. [7]

   On 15 November 2013 the sentence hearing commenced but was not finalised due to the need for two witnesses to attend to give evidence relevant to a factual dispute. The matter was further listed for a sentence hearing on 28 February 2014. On that date the two witnesses did not attend, and warrants were issued by the Court for their arrest. The matter was adjourned to 7 March 2014 for further hearing.

8. [8]

   On 7 March 2014 the Appellant withdrew his instructions to his legal representatives and indicated that he wished to withdraw his plea of guilty. The matter was further adjourned.

9. [9]

   In June 2014 the Appellant filed a Notice of Motion seeking leave to vacate the plea of guilty he had entered on 6 November 2013. The Motion was heard by Wilson J on 5 December 2014. On that day her Honour refused leave to withdraw the plea. She later gave her reasons for doing so: R v Raymond Kennedy [2014] NSWSC 1921.

10. [10]

    On 27 March 2015 Wilson J sentenced the Appellant to a non-parole period of 15 years and 9 months commencing 2 July 2012 and expiring 1 April 2028 with an additional term of 5 years and 3 months expiring 1 July 2033: R v Kennedy [2015] NSWSC 327.

11. [11]

    The Appellant now appeals on two grounds relating to the refusal of Wilson J to permit him to withdraw his plea:

12. [12]

    He also seeks leave to appeal against the severity of his sentence on the following grounds:

The facts

1. [13]

   All of the facts relating to the offending were not agreed at the sentence hearing. The Crown tendered a summary of facts and the Appellant disputed the matters contained in paragraphs 4, 6, 7, 9, 22 and 23. It is necessary in the first instance to set out that summary of facts in its entirety. The disputed paragraphs appear in italics.

2. [14]

   To deal with the disputed facts at the sentence hearing, evidence was adduced from Glenda Button, Kirsty Roe and Detective Senior Constable Rutledge. Steven Smith was also called to give evidence but he refused to take an oath or affirmation and refused to answer questions. He threatened Corrective Services Officers and other persons and was eventually removed from the Court. He has been charged with three counts of contempt of court.

3. [15]

   Kirsty Roe did not appear in answer to a subpoena. Her Honour held, without opposition from the Appellant’s counsel, that she was unavailable for the purposes of s 65 of the Evidence Act 1995 (NSW). Her statement was admitted into evidence despite objection from Counsel for the Appellant who submitted that it was not made shortly after the asserted facts occurred, it was unlikely to be reliable, and its probative value was outweighed by the danger of unfair prejudice.

4. [16]

   Her Honour concluded that, although Ms. Button presented as a reluctant witness who was unwilling to say anything that might be adverse to the Appellant, her Honour was satisfied that when Ms Button gave her statement to the police she gave a truthful account of matters within her knowledge. Her Honour relied on Detective Rutledge for drawing that conclusion and also from the fact that Ms Button could only have known about some of the matters that she referred to in her statement from her own observations or from what the Appellant told her.

5. [17]

   The significant matter in that regard was that in the late afternoon or early evening of 19 November 2011 the Appellant told family members and others present including Ms Button that he was going out. Referring to Richard Smith, the Appellant told those present that “Poochie” had a “house lined up. There is a safe in it and he wants to do it over”. The Appellant said that someone had told Richard Smith that there were valuable coins kept in a safe at the house. The Appellant left his house intending to meet Richard Smith and Steven Smith. When he left the house he was wearing a pair of borrowed Nike TN jogging shoes.

6. [18]

   Her Honour also noted that Ms Button recalled the Appellant saying that as they were "rushing in the door" at Mr Davies’ house, Richard Smith tripped and cut himself. Her Honour noted that that was consistent with forensic evidence. DNA matching that of Richard Smith was recovered from blood stains at the house.

7. [19]

   Ms Button saw the Appellant arrive home in the early hours of the morning of 20 November 2010. He went straight to his bedroom without speaking to Ms Button or Ms Roe, who were both awake. Ms Button noticed that he was wearing different clothes from those he had been wearing earlier in the night.

8. [20]

   The Appellant later told Ms Button about the offence claiming that Richard Smith had hit Mr Davies with a hammer. He said that he had thrown away the Nike shoes he had been wearing. He also said, when Ms Button was present:

9. [21]

   Her Honour noted that biological material removed from under one of Mr Davies’ fingernails matched the DNA profile of the Appellant. Her Honour said that the DNA suggested that Mr Davies may have scratched the Appellant, perhaps defensively but she could not determine that. Her Honour concluded:

10. [22]

    Her Honour said that the evidence did not allow her to conclude who of the three offenders inflicted the terrible violence that Mr Davies suffered but it was likely that Richard Smith was responsible for most of the violence.

11. [23]

    Her Honour concluded on the balance of probabilities that the Appellant was outside the premises for some part of the time during which this crime was carried out. He told Ms Button that he was in the car outside when he heard smashing. On entering, he saw Richard Smith striking Mr Davies with a hammer. The Appellant claimed to have taken the hammer away from Smith but her Honour could not determine even on the balance of probabilities whether that statement had any truth in it.

12. [24]

    Her Honour concluded at [84]:

Withdrawal of plea

1. [25]

   At the time of entering his plea, and for some eight or so months prior to that date, the Appellant had been represented by Mr James Trevallion of counsel. Mr Trevallion was instructed by Mr Stephen Wright who had acted for the Appellant since October 2012.

2. [26]

   Between receiving the brief and the date upon which the Appellant entered his plea of guilty to the charge of murder, Mr Trevallion had held at least six formal conferences with the Appellant, and had spoken with him on other occasions. Mr Wright had had more overall contact with the Appellant since being instructed.

3. [27]

   Mr Trevallion gave evidence before the primary judge. He said that on reviewing the brief of evidence in about March 2013 he formed the view that the Crown case against the Appellant was reasonably strong but that there was an arguable defence. After some additional evidence was served by the Crown, relating to a shoe print in blood left at the location where the deceased was assaulted, and the recorded conversation involving Steven Smith (paragraph 23 of the Statement of Facts at [13] above), Mr Trevallion saw the Appellant in person on a number of occasions and spoke to him on the telephone to explain the effect of the further evidence.

4. [28]

   Partly because of the Appellant’s evident difficulty in grasping the concepts of joint criminal enterprise and constructive murder, Mr Trevallion discussed the evidence at length with the Appellant’s brother who in turn discussed it with the Appellant. Mr Trevallion said that the Appellant’s main concern in their discussions about a possible plea of guilty was the likely length of any custodial sentence. At one point the Appellant sought a guarantee from Mr Trevallion as to the length of sentence that would be imposed upon entry of a guilty plea. He was told that no guarantee could be given although it was explained to him that a plea entered before the trial date was likely to attract a greater discount on sentence than one entered on the trial date because of its greater utilitarian value.

5. [29]

   Mr Trevallion said that in late October 2013 he received a telephone call from the Appellant who told him that he had decided to plead guilty to murder. Mr Trevallion thereupon arranged to see the Appellant at Parklea Prison on 1 November 2013. Written instructions were obtained with a colleague of Mr Trevallion’s being present. Mr Trevallion said that at that conference and when the Appellant instructed him as to the plea of guilty he, Mr Trevallion, had no doubt that the Appellant understood that he was pleading guilty to murder and that he understood the basis of the Crown’s case for murder.

6. [30]

   Mr Trevallion said that after the pre-sentence report was received the Appellant’s instructions in relation to the plea of guilty were discussed with him and confirmed by him probably on or around 18 December 2013. This was because in the Pre-Sentence Report dated 18 December 2013 it was said that the Appellant disputed the police facts concerning the offending. The Appellant’s then instructions were that he disputed the suggestion that he had known the reason for attending the deceased’s house prior to going there.

7. [31]

   The matter was then re-listed on 14 February 2014, it seems by the Court, because of the stated dispute about the facts. Barr AJ indicated some concern on his part and on the part of the Crown with what was in that report. Mr Trevallion said this:

8. [32]

   When the sentence hearing listed for 28 February 2014 was not able to proceed, the Appellant became upset about a number of matters including aspects of the Crown facts. As a result the Appellant was taken through the facts by Mr Wright, indicating those portions with which he disagreed. The disagreement was largely connected with an alleged comment made by the Appellant to Ms Button and Ms Roe to the effect that he had known of a plan to rob the deceased of valuable coins kept in a safe at the deceased’s home prior to attending the premises. Mr Trevallion regarded that dispute as of no significance to the integrity of the plea and continued in his view that the Appellant both wished to plead guilty to murder and understood the basis upon which he acknowledged his liability. Mr Trevallion specifically denied placing any pressure upon the Appellant in relation to the plea.

9. [33]

   At some time after the entry of the plea, the Appellant told Mr Trevallion that the bloody shoe print found by forensic officers on a cupboard adjacent to the place where the deceased was assaulted was deposited by him in the course of taking a weapon away from a co-offender. The Appellant told Mr Trevallion that he saw Richard Smith striking the deceased with a hammer and took the hammer from Smith. To put the hammer out of the reach of Smith he (the Appellant) took a running jump at a cupboard, using it to gain more momentum to reach the top of the cupboard. He put the hammer on top of the cupboard in that way leaving his shoe print on the cupboard.

10. [34]

    At an earlier conference with Mr Trevallion the Appellant had attributed the evidence of DNA recovered from the fingernails of the deceased consistent with the Appellant’s, to contact with the deceased who had scratched or grabbed him when he tried to pull Richard Smith away from the deceased to end the assault by Smith on the deceased.

11. [35]

    Mr Wright gave evidence that he took initial instructions from the Appellant when a public defender rather than private counsel was briefed. Although the Appellant’s initial instructions were consistent with a plea of not guilty, those instructions evolved over time to an acknowledgement of participation in the robbery of the deceased. Initially the Appellant said he had been outside the deceased’s house as lookout for his cousins when they entered the premises, but he had subsequently entered the house and thereafter participated in events. He told Mr Wright that, whilst his co-accused were attempting to extract from the deceased the location of the key to a safe, the Appellant ransacked the house looking for the key and valuables.

12. [36]

    Mr Wright gave evidence of a different account of two significant pieces of evidence relied upon by the Crown from that which had been provided to Mr Trevallion. In relation to the DNA recovered from the fingernails of the deceased, the Appellant said that he tried to move the deceased, who was prone on the floor after having been assaulted by Richard Smith, into a more comfortable position and the deceased grabbed him. In relation to the bloody shoe print the Appellant told Mr Wright that, when ransacking the house, he was trying to get something from the top of the cupboard and deposited the shoe print on the cupboard in the process.

13. [37]

    The Appellant maintained to Mr Wright that he had not personally assaulted the deceased. He disputed the account of witnesses that he had acknowledged knowing of the plan to rob the deceased prior to the event as well as the comments made by Steven Smith recorded by the listening device. Mr Wright did not view those issues as relevant to the plea of guilty.

14. [38]

    The Appellant was assessed by the psychologist Anthony Diment on 27 June 2014. Mr Diment assessed him as having cognitive impairment because his intellectual functioning was in the range below 70. It was assessed at 57. He was also assessed as fitting the DSM-5 diagnostic criteria for a depressive disorder and substance abuse disorder. The substances were chiefly alcohol and cannabis but also included occasional use of amphetamines.

15. [39]

    He told Mr Diment that he had agreed with earlier legal advice about his case but had been worried about why he should say guilty to something he had not done. He said that he was adamant that he had not planned the offences but told Mr Diment that his exact memory of what happened

16. [40]

    The Appellant was also assessed by Dr Susan Pulman, a clinical neuropsychologist, who determined that although his overall level of intellectual functioning fell within the Extremely Low range with his result falling at the first percentile, he was fit to stand trial. Dr Pulman noted that the Appellant’s account of the events accorded with what was contained in his affidavit of 17 June 2014. He told her that he only attended the victim’s premises because he thought they were going to get some drugs there.

17. [41]

    The Appellant was examined by Dr Olav Nielssen on 16 January 2014. Although he was reluctant to talk to Dr Nielssen about the circumstances of the offending he did say that there was a plan to commit a robbery and that they were meant to go to the premises to get some speed with the money from the robbery. He said that at the time of the offending he was under the influence of alcohol consumed that day and he could not remember exactly how much he had to drink or over what period of time he was drinking. He confirmed that he had entered the plea of guilty to the offence as described in the Summary of Facts which included the results of DNA and footprint evidence, as well as a conversation recorded by a listening device.

18. [42]

    Dr Nielssen diagnosed him with Substance Abuse Disorder and Substance Induced Psychotic Illness - in remission. Dr Neilssen gave evidence but was entirely reliant on his report because he said that he could not recall interviewing the appellant.

19. [43]

    At the application for withdrawal of plea the Appellant relied on an affidavit he had sworn on 17 June 2014. In that affidavit he relevantly said:

20. [44]

    In his affidavit he also said that initially Mr Wright and Mr Trevallion said that he had a defence and that Mr Wright thought the Crown case was a weak one. He said, however, that they did a complete reversal after they received the evidence of Steven Smith. He said that every time the lawyers came to see him at Parklea from that time on they kept at him about pleading guilty. Although he did plead guilty he was never comfortable with their advice because he said he did not do what was alleged.

21. [45]

    The Appellant was called to give evidence. He initially answered some questions from his own counsel although not without some difficulty. He denied telling Dr Nielssen that he had gone to the premises for a robbery and did not mention that he was involved in a robbery. He denied telling Mr Wright anything about the bloody shoe print except that he knew nothing about the shoes and that he had never seen them before.

22. [46]

    What thereafter happened is summarised by the primary judge in R v Raymond Kennedy [2014] NSWSC 1921 in these terms:

Submissions

1. [47]

   The Appellant submitted that the primary judge erred in finding that there was no irregularity in which the Appellant entered his pleas of guilty. He submitted that he was a person of limited intellectual functioning and that prior to entering the plea of guilty he consistently disputed involvement in the murder and denied any prior knowledge of a robbery or participation in a robbery.

2. [48]

   He submitted that the written instructions did not reveal the basis of the plea, and that the plea of guilty was entered without a set of facts being signed by the Appellant or agreed between the parties. He submitted that after entering the plea of guilty he continued to dispute a number of key facts that were inconsistent with being guilty of murder.

3. [49]

   The Appellant submitted that the evidence of Mr Trevallion in relation to the circumstances of entering the plea of guilty was troubling and irregular. That was because Mr Trevallion said in evidence that there may have been no reason to determine the facts before the plea was entered because the Appellant was not pleading to a lesser offence. The Appellant submitted that the evidence of Mr Trevallion lacked certainty as to the circumstances of liability. Mr Trevallion had described the basis of liability as being part of a joint criminal enterprise but he accepted that the Appellant always maintained that he did not strike nor did he kill the deceased. The Appellant had consistently denied any prior knowledge of an intention on the part of the co-accused to commit a robbery.

4. [50]

   The Appellant submitted that the evidence of Mr Trevallion lacked certainty as to whether he was given specific instruction on the critical issue of liability. There was no express agreement as to the underlying facts and liability. It was submitted that there was a failure to resolve the basis of liability at the time of entering the plea particularly as the Appellant had told Dr Pulman that he was not guilty of murder and was not prepared to plead guilty to something he did not do.

5. [51]

   The Appellant submitted that the primary judge erred by finding that the evidence established that the Appellant instructed Mr Wright that he became involved in the robbery of the deceased at a time when he knew that the deceased was being viciously attacked and seriously injured to persuade him to part with his property. No written admission of this was obtained by Mr Wright.

6. [52]

   The Appellant submitted that the primary judge erred by finding that support for the fact that the plea was a voluntary acknowledgment of guilt could be found in the report of Dr Nielssen where the Appellant told Dr Nielssen that he had gone to the deceased’s house to rob the deceased. The submission was made particularly in the context that Dr Nielssen said that he had no memory of interviewing the Appellant.

7. [53]

   The Appellant submitted that the primary judge erred in finding that the Appellant understood his liability for murder particularly given the intellectual circumstances of the Appellant as appeared from the reports of Dr Pulman and Mr Diment.

8. [54]

   The Appellant submitted that there was a real risk of a miscarriage of justice. The Appellant demonstrated a strongly triable issue. He consistently disputed involvement in the murder and denied knowledge of the robbery or participation in the assault of the deceased. He consistently disputed the evidence of the co-offender Steven Smith as well as that of Ms Button and Ms Roe. In circumstances where Mr Smith refused to give evidence, Ms Roe failed to attend Court and Ms Button denied any memory of the alleged admissions by the Appellant the evidence was questionable and may not have supported a conviction for the offence charged.

Consideration

1. [55]

   The relevant principles in relation to an appeal from a plea of guilty where it is sought to withdraw the plea are set out in R v Van [2002] NSWCCA 148; 129 A Crim R 229 by Greg James J (with whom Hodgson JA and Kirby J agreed):

2. [56]

   In Ming Yuk (Raymond) Wong v The Director of Public Prosecutions [2005] NSWSC 129; (2005) 155 A Crim R 37 Howie J said:

3. [57]

   In commenting on these two cases Hoeben CJ at CL (with whom McCallum and Garling JJ agreed) said in Khamis v R [2014] NSWCCA 152 at [59]:

4. [58]

   In Rotner v R [2011] NSWCCA 207 Simpson J (as her Honour then was) (McClellan CJ at CL at Fullerton J agreeing) said at [49]:

5. [59]

   One of the significant difficulties faced by the Appellant is the findings of fact made by the primary judge. When confronted with this problem at the outset of his submissions counsel for the Appellant sought to add ground 2 to the conviction appeal and submitted that the Appellant did not need to demonstrate a specific error in her Honour’s approach to succeed on the application. The basis for that submission appears to have been that if the Appellant could demonstrate a miscarriage of justice specific error would not be necessary.

6. [60]

   However, in coming to a view about whether there has been a miscarriage of justice by the guilty plea this Court must do so on the basis of factual findings made by the primary judge. In R v O’Donoghue (1988) 34 A Crim R 397 Hunt J said (at 401):

7. [61]

   In that regard her Honour accepted Mr Trevallion and Mr Wright as honest witnesses with a clear memory of relevant events. Her Honour held that their evidence contradicted the Appellant’s evidence in some material respects and that those differences cast doubt on the Appellant’s reliability. In any event, her Honour did not accept the Appellant as a reliable witness or “necessarily an honest one”.

8. [62]

   Her Honour did not accept that the Appellant was subjected to any pressure by his lawyers, improper or otherwise. Despite the attacks on Dr Nielssen’s reliability in cross-examination it is apparent that her Honour accepted his evidence contained in his report. She held that that evidence was corroborative of what the lawyers said that the Appellant told them about the circumstances of the offending.

9. [63]

   As the Crown submitted, it is necessary for the Appellant to satisfy both of the matters referred to in Rotner. The Appellant’s submissions tended to concentrate only on the circumstances said to raise doubt about his own perceptions at the time of entering into the plea, that is to say, that the plea was not attributable to a genuine consciousness of guilt. Any attention to the matter of whether there was an issue about the Appellant’s guilt seemed to require a re-consideration of all of the evidence without regard to the primary judge’s factual findings.

10. [64]

    However, an examination of the evidence which was accepted by the primary judge shows that the Appellant fails to demonstrate either of the matters that Rotner requires to be demonstrated.

11. [65]

    The concerns identified about Mr Trevallion’s evidence were directed to the Appellant’s understanding of the plea. The emphasis on the lack of agreement to a set of facts seems to me to be misplaced. The evidence in Mr Trevallion’s possession from an early time prima facie demonstrated a joint criminal enterprise involving the Appellant to rob the deceased. The statements of Ms Button and Ms Roe provided that evidence. The Appellant’s DNA was found under the deceased’s fingernail. The Appellant accepted that he was present during some of the time the robbery was occurring and the deceased was being assaulted. Subsequently Mr Trevallion received the evidence relating to the bloody shoeprint and became aware that Steven Smith would be called by the Crown to give evidence of what occurred.

12. [66]

    That was the basis on which Mr Trevallion explained to the Appellant the legal concepts of joint criminal enterprise and felony-murder. There was quite sufficient in that evidence, even before the final preparation of any set of facts, upon which a plea could properly be advised and made. The fact that the Appellant always maintained that he did not assault the deceased did not weaken the legal basis for his liability for the offence charged. Mr Trevallion’s evidence made clear that the basis of the plea was that the Appellant had become involved in the robbery before or at the time of its occurrence.

13. [67]

    Mr Trevallion’s evidence must be seen also in the light of Mr Wright’s evidence that on 13 February 2013 the Appellant gave Mr Wright a version of events that had him as a participant and not a spectator. After the further evidence of the bloody shoeprint was served Mr Wright said that in October 2013 the Appellant admitted to ransacking the house while the deceased was being assaulted. It was in that context that the Appellant told Mr Wright the version of the footprint being planted on the cupboard when he was trying to retrieve something from the top of the cupboard.

14. [68]

    If it were necessary for this Court to consider the reliability of Mr Trevallion’s evidence, what the Appellant said to Dr Neilssen as reported by him, and what Mr Wright said would assist in reaching a conclusion that it could confidently rely on Mr Trevallion’s evidence. There is no error of law in the findings made by the primary judge because there is evidence to support the findings.

15. [69]

    Although the Appellant had difficulty grasping the concepts of felony-murder and joint criminal enterprise, Mr Trevallion’s evidence was that the Appellant was receptive to his advice in respect of his prospects of success. Mr Trevallion’s evidence was that the Appellant’s brother was involved in discussions with the Appellant and that his brother seemed to have a reasonably good understanding of the Crown case and the Appellant’s prospects of success. The advice on prospects of success was also in the context of the Appellant’s concern about the likely length of the custodial sentence if he pleaded guilty. Nothing has been shown to cast doubt on that aspect of Mr Trevallion’s evidence. He said that the Appellant appeared to understand the plea and the basis of it, being his involvement in the robbery which resulted in the deceased’s death.

16. [70]

    Although the Appellant wanted to suggest that he had been pressured by the lawyers, not only was his evidence regarded as unreliable by the primary judge but Mr Trevallion’s unchallenged evidence was that the process was set in train by a phone call made by the Appellant to Mr Trevallion saying that he wished to plead guilty. That led to Mr Trevallion going out to the prison with another person to obtain the written instructions from him. The matter of pressure by the lawyers on the Appellant scarcely made an appearance at the appeal.

17. [71]

    Acceptance of Mr Trevallion’s evidence entirely justifies the conclusion of the primary judge that the plea of guilty arose from a consciousness of guilt on the part of the Appellant and also from his concern to obtain the best discount on a custodial sentence because of an early plea. As Dawson J said in R v Meissner (1995) 184 CLR 132 at 157 a person may plead guilty on grounds which extend beyond the person’s belief in his guilt and the person may do so for all manner of reasons. One of those reasons is the hope of obtaining a more lenient sentence than if he contested the matter. Justice Dawson said that the entry of a plea of guilty for that reason constitutes an admission of all of the elements of the offence and it will not be set aside unless a miscarriage of justice is demonstrated.

18. [72]

    The Appellant submitted that there was a real risk of a miscarriage of justice. He submitted that he had demonstrated a strong triable issue. He said that he had consistently disputed involvement in the murder and denied knowledge of the robbery and had not participated in the assault of the deceased.

19. [73]

    No miscarriage of justice is demonstrated. The plea was made and confirmed with full knowledge of essential factual matters after explanation of the legal concepts. It was voluntary and attributable to a genuine consciousness of guilt and by reason of the benefit of a discount on the sentence for an early plea in the circumstances of the strength of the Crown case.

20. [74]

    There would only be a strong triable issue if it were true that he had always disputed his involvement in the robbery and if there were no other evidence pointing to that involvement. The evidence discussed above shows that he has not always disputed his involvement in the robbery. There is other evidence of his intended involvement in the robbery and of his participation in it.

21. [75]

    It may be accepted that the Appellant was not responsible for participating in the assault on the deceased nor killing him in any direct sense. It is not the case, however, that he has consistently disputed knowledge of the robbery for the reasons already given. His involvement in the joint criminal enterprise to rob the deceased produces the result that he is liable to be found guilty for the murder of the deceased although it was actually carried out by one of the co-offenders. The evidence pointed to application of extended common purpose by the Appellant’s continued involvement in the robbery at a time when grievous bodily harm had been and was being inflicted on the deceased by one or more of the co-offenders: McAuliffe v The Queen (1995) 183 CLR 108. Simply because he may not have fully understood the law concerning joint criminal enterprise and felony murder cannot provide a basis for impugning the integrity of the plea.

22. [76]

    The appeal against the refusal to permit the withdrawal of the plea should be rejected.

Sentence

1. [77]

   These grounds are dealt with together in the Appellant’s submissions. They concern findings that the Appellant knew that a robbery at the deceased’s house was intended.

2. [78]

   In her Remarks on Sentence the primary judge said this:

3. [79]

   The Appellant submitted that the evidence relied upon by her Honour from Ms Button and Ms Roe was unreliable and could not form the basis of a factual finding beyond reasonable doubt. The Appellant pointed to the evidence given by Ms Button that her statement to the police was made at a time when she was drug affected and that some parts of it were not true.

4. [80]

   The Appellant drew attention to the fact that Ms Roe failed to attend Court during the sentence proceedings despite the issue of a subpoena for her attendance, and to the fact that her statement was admitted over objection on the basis that she was a witness unavailable under s 65 of the Evidence Act 1995 (NSW). It was not submitted that the primary judge erred in having determined that Ms Roe was an unavailable witness.

5. [81]

   The Appellant submitted that there was no independent forensic evidence suggesting that he had prior knowledge of a robbery or a plan to “do a safe”. The Appellant submitted that there was no independent forensic evidence of the disputed conversations with Ms Roe and accordingly her evidence should not have been accepted.

6. [82]

   In her statement of 17 December 2010 Ms Button said this:

7. [83]

   In her statement of 17 December 2010 Kirsty Roe said this:

8. [84]

   Ms Button gave evidence and was cross-examined by both the Crown and counsel for the Appellant on her statement. In answer to the Crown, who took her through the statement page by page, she said that everything was true except paragraphs 25 and 26. She did say, however, that she was under the influence of drugs at the time she signed the statement but, except for those two paragraphs, it was all true. When cross-examined by counsel for the Appellant she claimed not to remember what paragraph 11 recorded as having been said to her by the Appellant. She said the same thing about paragraph 20.

9. [85]

   Detective Senior Constable Dean Rutledge gave evidence that he was the officer responsible for taking the statements from Ms Button and Ms Roe. He knew both of them and he knew that they were users of heroin and, in Ms Roe’s case, cannabis also. He said that neither of them appeared to be under the influence of any drugs when they made their statements. He said that he would have gone through the statements with each of them before they signed them. He said that no pressure was put on them and he did not suggest the information to them which is contained in their statements.

10. [86]

    The primary judge had regard to all of these matters and concluded:

11. [87]

    Whether or not this evidence ought to have been accepted and what weight should be given to it was a matter for the primary judge. The Appellant does not demonstrate that her Honour made any error in the assessment of Ms Button’s evidence or the receipt of Ms Roe’s evidence. No appeal was brought against the admission of Ms Roe’s evidence, only a complaint that it should not have been relied on. That was a matter for the primary judge: O’Donoghue at 401 (see [60] above).

12. [88]

    It is not at all surprising that her Honour made the factual findings that she did. She had before her the report from Dr Nielssen which recorded the Appellant telling Dr Nielssen that there was a plan to commit a robbery. Further, counsel for the Appellant at the hearing of the appeal made reference to the evidence of Mr Wright and Mr Trevallion to point to the fact that there was a history by the Appellant of disputing what was claimed by Ms Button and Ms Roe. If regard is to be had to Mr Trevallion’s and Mr Wright’s evidence, that evidence tends to provide further support for Ms Button’s statement that the Appellant knew that a robbery was planned. The relevant evidence was discussed at [36] and [66] above when dealing with the appeal against the refusal to allow the plea to be withdrawn.

13. [89]

    We would reject these grounds of appeal.

14. [90]

    Her Honour found that the Appellant applied force to the deceased as follows:

15. [91]

    The Appellant submits that there was no evidence that could have justified such findings. The only evidence suggesting physical contact between the Appellant and the deceased was DNA of the Appellant recovered from underneath a fingernail of the deceased. The Appellant had always denied striking the deceased and there was no other evidence, including in the statements of Ms Button and Ms Roe, to the contrary. The only possible source for those findings was in the listening device evidence concerning Steven Smith.

16. [92]

    The Crown submitted that it was a matter for her Honour to determine the weight to be placed on the Appellant’s denials of having touched the deceased other than to move him to a more comfortable position. The Crown submitted that it is clear that her Honour did not rely on the listening device evidence. The Crown submitted that her Honour was entitled to infer that the Appellant had used force towards the deceased by the evidence concerning the disposal of shoes and clothes, referred to in the statements of Ms Button and Ms Roe.

17. [93]

    In our opinion, there was no evidence which could support the findings made by the primary judge that the Appellant applied force to the deceased. Whatever doubt there may be about other matters concerning the Appellant’s involvement, the Appellant has consistently maintained that he never struck or assaulted the deceased. The disposal of shoes and clothing is consistent with an attempt to distance himself from the events without saying anything about the extent of his involvement including the application of physical violence. The DNA found under the deceased’s fingernail is entirely equivocal on the issue of whether the Appellant applied force towards the deceased. Whilst the Appellant may not have assisted matters by giving a different account of how his DNA came to be found under the deceased’s fingernail to Mr Trevallion on the one hand and to Mr Wright on the other, that inconsistency and his other denials do not lead to a conclusion that he did apply force to the deceased. That is the more so when the finding is required to be made beyond reasonable doubt.

18. [94]

    We would uphold this ground of appeal.

19. [95]

    In the light of error having been found in relation to ground 3 it is not strictly necessary for the Court to consider this ground of appeal. However, because the Court must engage in a fresh sentencing exercise it is necessary to consider whether any lesser sentence is warranted: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601.

20. [96]

    The Appellant submitted that he had a powerful subjective case because he came from a deprived and dysfunctional family background. At an early age he had been exposed to adults around him using illicit drugs. He experienced the trauma of family members being killed in a house fire and the family needing to move constantly. He was schooled in a haphazard manner and is illiterate. He has low intellectual and cognitive functioning.

21. [97]

    The Appellant submitted further that he has a justifiable sense of grievance about the sentence he received in comparison to sentences handed down to Richard Smith and Steven Smith. We note in that regard that there was no appeal ground concerning parity, but the sentences imposed on the co-offenders must be considered in the re-sentencing exercise.

22. [98]

    Richard Smith was sentenced by Schmidt J on 23 August 2013. He received a discount of 18 per cent for his plea. The starting point for the sentence was 28 years imprisonment. With the discount her Honour sentenced him to a term of 22 years and 11 months imprisonment with a non-parole period of 17 years and two months.

23. [99]

    Steven Smith was sentenced on 14 November 2013 by Barr AJ and for two offences of armed robbery unrelated to the killing of the deceased. He was sentenced on the basis that he did not assault the deceased. He received a discount for a late plea of ten per cent. He was sentenced to a term of imprisonment of 20 years with a non-parole period of 14 years for the murder of the deceased. The sentence was made partly concurrent with the sentences imposed for the robberies. The starting point for the murder sentence was 22 years and three months imprisonment.

24. [100]

    The Crown submitted that even if error was found in relation to ground 3 no lesser sentence was warranted. The Appellant submitted that if the finding that he struck the deceased was incorrect his moral culpability in relation to the offending was less. That would reflect itself in the instinctive synthesis involved in the sentence.

25. [101]

    The primary judge’s factual findings in relation to the Appellant’s subjective circumstances (paragraphs [110]-[133]) should be accepted. The background and deprivations of the Appellant did not substantially differ from those of the co-offenders. The Appellant was seven to eight years younger than the co-offenders and was aged 18 and a half at the time of the offending.

26. [102]

    The objective seriousness of the offence was above the mid-range for the reasons given by the primary judge. However, the Appellant’s culpability should be regarded as lower than the co-offender who assaulted the deceased because his liability depends on the doctrine of extended common purpose: Lowe v The Queen (1984) 154 CLR 606 at 609; R v Penisini; R v Lagi; R v Taufahema [2003] NSWSC 892 at [124]-[127].

27. [103]

    The plea was a late one and it left a significant factual dispute that needed to be resolved at the sentence proceedings. In the circumstances a discount of five per cent should be allowed.

28. [104]

    Except for two matters we would have considered that no lesser sentence was warranted for the Appellant. He was a party to an enterprise involving the invasion of the deceased’s home with a view to robbery to purchase drugs and then a party to a prolonged and vicious assault on the deceased resulting in his death some days later. The first matter is that the primary judge’s notional starting point was 22 years in circumstances where she considered that the Appellant had applied force to the deceased. The second matter is that Barr AJ’s notional starting point for the sentence imposed on Steven Smith was 22 years and 3 months where Barr AJ sentenced him on the basis that he did not physically assault the deceased.

29. [105]

    In those circumstances, with a notional starting point of 21 years we would sentence the Appellant to a non-parole period of 15 years with an additional term of 5 years. The length of the time on parole pursuant to the statutory ratio does not justify the finding of special circumstances.

Conclusion

1. [106]

   We propose the following orders:

   1. (1)

      Appeal against conviction dismissed.

   2. (2)

      Leave to withdraw plea of guilty refused.

   3. (3)

      Grant leave to appeal against sentence.

   4. (4)

      Quash the sentence imposed by Wilson J on 27 March 2015.

   5. (5)

      In lieu, sentence the Appellant to a non-parole period of 15 years imprisonment commencing 2 July 2012 and expiring 1 July 2027 with a balance of term of 5 years expiring 1 July 2032.