Kennedy v R

Court of Criminal Appeal (NSW)|2016-03-24|Before: Hoeben CJ, Harrison J, Davies J, Wilson J, Barr AJ

Solicitors: Michael Croke & Co (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2012/206026 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law - Criminal Citation: R v Raymond Kennedy [2014] NSWSC 1921 R v Kennedy [2015] NSWSC 327 Date of Decision: 27 March 2015 Before: Wilson J File Number(s): 2012/206026

Judgment OF THE COURT:

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

The facts

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. 1. Stanley "Bruce" Davies, (the deceased) was a 75 year old, living alone in his house at 2 Dangar Street, Kempsey. Within the house the deceased had a safe, in which he kept amongst other things a collection of coins. Within the house were other safes or secure storage devices, including a gun safe. 2. The offender, Raymond Kennedy (DOB: 20/04/1992) was an associate of Steven Smith and Richard Smith who are cousins. Richard Smith is known by the nick name "Poochy". The offender, Richard Smith and Steven Smith were all residents of Kempsey or its environs as at November 2010. 3. At 6pm on the evening of Friday 19 November 2010 a friend attended the residence of the deceased and spoke with him. The deceased was uninjured at the time. 4. In the early hours of that evening the offender Raymond Kennedy left his home indicating he was going to see Richard Smith and have a drink. He was wearing a pair of Nike TN joggers. The offender said that Richard Smith had a house he intended to rob and that there was a safe and valuable coins in the house. 5. At about Midnight neighbours of the deceased heard banging sounds, consistent with something being hit coming from the home of the deceased. It sounded like a door slamming. After a short time more banging was heard, which Zalie Davison, who lived opposite the deceased, described as dull like it was made on timber not metal. 6. At about that time the offender, Richard Smith and Steven Smith attended the home of the deceased. They entered the house intending to steal property there from. As he entered the house Richard Smith sustained an injury to his head, which commenced to bleed. Once inside the house the deceased was confronted. Thereafter he was subjected to severe violence. This included the deceased being struck, with fists and weapons, and in such a manner that inter alia he was occasioned a compression injury to the neck. During this time the opening of, or combination to his safe was being demanded, apparently without success. The deceased was also moved about the house, as indicated by a blood trail. After sometime the offender and his companions left the house, leaving the deceased injured on the floor of the premises. 7. Whilst in the premises the offender and his co offenders ransacked the premises searching for property, including forcing open and attempting to force open safes and other security containers within the house. 8. In the early hours of the morning of Saturday 20 November the offender returned home and went to bed. 9. The following day the offender told two women who were living at the same house that he and Richard Smith and Steven Smith had broken into a house in Dangar Street Kempsey. He said that Richard Smith had hit an old man over the head with a hammer and had jumped on the man's head. The offender said he had been in the car when he heard noises. He went into the house and saw Richard Smith hitting the old man over the head with a hammer and jumping on his head. He told the women that he had taken the hammer from Richard Smith and pulled him away and told him to stop. Richard Smith threw the hammer away and the offender threw the shoes he had been wearing away. The offender stated that they got away with nothing because the old man would not disclose the code to the safe and that is why Richard Smith jumped on his head. 10. At 5.30 pm Saturday 20 November the sister of the deceased, Mary Tarr, attended his residence to share dinner with the deceased. She noticed the morning paper still at the front of the house. Ms Tarr entered the house and found the lounge room ransacked. She called to the deceased and got no response. She left and attended the home of her younger brother, from where the emergency services were contacted. She and her brother met the police outside the premises. 11. The police entered the premises and found the deceased lying on the floor of a spare bedroom. He was unconscious, covered in blood with severe swelling to his head. The offender was conveyed by ambulance to the Kempsey Hospital, from where he was evacuated by air to the intensive care unit of the John Hunter Hospital in Newcastle. Despite the endeavours of the medical staff the deceased failed to respond to treatment. On 26 November 2010 his life support was withdrawn and the deceased passed away that evening. 12. The police established a crime scene at the home of the deceased. 13. Detective Senior Constable Gane, from Coffs Harbour Crime Scene Section attended the premises at 9.10 pm on 20 November. Over the next three days he inspected the exterior and interior of 2 Dangar Street. 14. There were a number of small blood droplets in the hallway, lounge room and kitchen. These blood droplets formed an obvious blood trail. In the kitchen on the floor at the doorway to the hall, the blood spot at Marker 8, was identified as matching the DNA profile of Richard Smith. The other spots all matched the victim. 15. In bedroom two, which appeared to be spare room, there was a blue plastic sheet covering the bed. In the wardrobe there was a home made safe which had been prized open. The metal box/safe was empty but for a lady's watch and other items of no monetary value. On the floor in front of the wardrobe were two empty wallets and documents. 16. In the third bedroom, which appeared to be another spare room, the victim had been found lying sandwiched between the double bed and a reinforced double cupboard, a gun locker and two safes housed in shelving. The wardrobe sized maroon cupboard had been badly damaged, with damage to the locks. In an attempt to gain entry to the cupboards, a hardened steel tool had been snapped off inside the timber of the cupboards. Next to these cupboards was the gun safe, which showed attempts to break it open. On the other side of the bed there was a set of drawers and a two drawer filing cabinet both were open with the files and contents disturbed. 17. The area, in which the victim was located, was covered in blood and there was impact blood spatter on the side of the cupboard which had been smeared and there were visible part shoes (sic) prints amidst the smearing. The blood was identified as belonging to the victim. The shoe prints were identified as coming from Nike TN air max shoes. 18. There was no evidence of forced entry to the premises however due to some shoe impressions on the floor it was determined that the most likely point of entry and or exit was the rear door of the premises from the kitchen/dining room. 19. A Post Mortem examination of the victim's body was carried out on 30 November 2010. Doctor Allan Cala determined the cause of death as being craniofacial trauma with both bleeding to the face and within the brain. Each zygoma was fractured. The hyoid bone was fractured suggestive of some form of neck compression or blunt trauma to the upper neck. The victim had lacerations behind his right ear. The overall characteristics of the injuries to the face and head, including the brain, were consistent with a severe, violent and sustained attack to the face, head and neck. The examination of the torso and upper limbs showed injuries consistent with an assault. There were 'patterned' injuries to the back consistent with having being caused by tyre lever, shaft of a golf club or similar,' also bruising to his upper arms and bruising and abrasions to his fingers. 20. Overall Dr Cala concluded that the injuries to the face and head were consistent with a severe, violent and sustained assault to the face head and neck. The deceased was 75 years old, 177 centimetres in height, weighed 94 kilograms and of medium build. 21. Following the identification of the presence of the DNA profile of Richard Smith within the blood trail, found within the house of the deceased, the police executed a search warrant on premises at 13 Pipers Creek Road Dondingalong on 8 December 2012. Richard Smith was found hiding in a wardrobe in a bedroom. Four other men were at the house including the offenders Steven Smith and Raymond Kennedy. Richard Smith was arrested in relation to the murder of the deceased. 22. A partial DNA profile recovered from under the fingernail of the deceased matches the DNA profile of Raymond Kennedy. During the examination of the crime scene Nike TN air Max shoe prints were identified in the back doorway to the kitchen and in blood smears on the cabinet adjacent to where the deceased lay. There is evidence that Raymond Kennedy left to go and meet with the offender and Richard Smith on the night of the offence wearing a pair of Nike shoes. 23. On 26 February 2011 police installed a listening device into premises 16A Neville Emerson Street. On 5 March 2011 Steven Smith visited the premises and had a conversation which was captured by the listening device. Steven Smith spoke of what happened to the deceased. Amongst other things he said: He wouldn't give nothing up like he just kicked up. I don't know, we said kick you in the head or something. He just wouldn't buckle we were going to do the safe. There was money in the safe The boys had done it before but they just couldn't get it, like, the safe was fort knox. It wouldn't move. We had fucken anything tried to bust it open just wouldn't bust open you know It was like all little safety deposit boxes and everything It was probably about from edge to edge about five or six acrcoss there Brand new straight out of the bank, you know, all twenties Five cent pieces like a tin of notes, 10c, 20c Yeah Poochy was just going on with him . The boys were off their cunts I was only smoking.. that day Fucken I went to the back door old fella sitting down. Old blokes just like fucken, like the door was locked first and we made a bit of noise and the old bloke come out and we go open the door up hassling bang just ripping into it smashing it just open up. Plus I think he cut himself I think old mate stabbed him or some thing (referring to Poochy) Yeah. Just picked him up then come up up here , so we took him up to the room . Open it up Open up we need money mate . He would'nt do anything, he goes whack him on the thing, you know Poochy goes That wouldn't work so he held a knife under there They were just slapping him you know slapping him Yeah slapping him first and he wouldn't listen. said open that here wouldn't listen Ray Ray Ray then fucken Pooch, yeah Fucken I don't know cunt wouldn't listen kept going and going and going The old cunt he was a stubborn cunt Done it all for nothing. I kept trying kept going outside have a look mate sure no cunts was there . the other boys are in there they 've got him ones there ones there whack whack him again Whacking him in the head Pooch ended up off the ground rah rah rah whack. Few more strikes to the head. After that breathing air Just like choking Blood and froth and spew and that I got him down tried to clear his airways and that you know. Yeah I tried to clear his airway, just I don't know. (spelling and punctuation in original) 24. Raymond Kennedy was arrested on 2 July 2012. He did not participate in an interview.
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.
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.
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.
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.
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.
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.
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: We got away with nothing, because the bloke wouldn't give us the code to the safe. That was when Pooch was jumping on him, because he wouldn't give the code up.
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: On all of the evidence, however, I have concluded beyond reasonable doubt that the offender applied force to Mr. Davies during this shameful attack, leading to the deposit of DNA.
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.
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.
Her Honour concluded at [84]: Whether or not the offender acted as lookout for part of the time, I am satisfied that he entered the house with his two co-offenders, and was a party to the ransacking of Mr. Davies' house in the hunt for items of value, including by forcefully and repeatedly kicking a locked cupboard in an attempt to gain entry. I am satisfied that he applied force to Mr. Davies, and was present whilst his co-offenders did the same. He, like his co-offenders, did nothing to get aid for Mr. Davies.

Evidence before the primary judge

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.
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.
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.
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.
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.
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.
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: Your, Honour, myself and my instructing solicitor had a conference with the offender yesterday. I can indicate to the Court that he maintains his plea of guilty. He indicated to us that he agrees, generally agrees with the agreed facts. Specifically there is one point that he does dispute and I have had some discussions with the Crown this morning about this and that is - … He disputes that he was aware of the purpose of going to the house on the evening, which is in paragraph 4 - makes up part of the agreed facts in paragraph 4, just that last sentence. … HIS HONOUR: You are satisfied that the accused will continue to plead guilty Mr Trevallion? TREVALLION: Yes, those are my instructions your Honour.
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.
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.
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.
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.
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.
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.
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.
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 …is not great. I had been drinking and when I lay down to think about what happened I do get flashes of bits of it. I do not think I had any idea of hurting anyone. My cousins are not good mates and we never used to hang around much. They just said to come to - I don't know really. I do think about what happened to the guy and do feel bad about that. That's it.
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.
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.
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.
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: From the very outset of this matter I instructed my legal representative that I was not responsible for the victim's death though I do admit that I was at the scene of the crime. I only attended the victim's premises because I thought we were going to get some drugs there.
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.
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.
What thereafter happened is summarised by the primary judge in R v Raymond Kennedy [2014] NSWSC 1921 in these terms: [19] Having been able to give this evidence, which was generally consistent with his assertions of innocence, the applicant in cross-examination manifested a complete inability to continue with his testimony. He repeatedly said that he was nervous, didn't feel right, and would prefer to return at a later date to complete his evidence. He specifically rejected (until later) the proposition that he was ill (T58:31), but maintained that he was nervous and didn't want to talk about the matter. [20] He was not able to give any explanation for the difference between his apparent engagement with the hearing when listening to evidence from the dock, and his inability to recall and discuss relevant events when in the witness box (T64:32). [21] Although directed to answer the questions put to him, the applicant continued to give his evidence in an entirely unresponsive way, saying little more than that he didn't feel right, and couldn't think properly. The witness was given a short adjournment to compose himself and - with the Crown's consent - to speak to his lawyers but, on resuming his evidence he generally continued in his refusal to answer in any meaningful way the questions put to him. [22] After an extended period of endeavouring to have the applicant answer the questions put to him, and in light of his continuing refusal to answer with anything other than assertions of not feeling right, the applicant was told to leave the witness box. I refused an application for an adjournment made by the applicant's Counsel at that point, because there was simply no reason to suppose that the applicant would endure the evidentiary process any better on another occasion. All indications were that he would not. It was evident that his refusal to answer questions was not due to any temporary illness from which he would recover or an inability to understand questions phrased in a straightforward way; it was due to a reluctance to answer those questions. Whether that was due to nervousness or as a result of a considered choice, I cannot determine.

Submissions

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.
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.
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.
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.
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.
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.
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.
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

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): [48] What is necessary to be shown before an appeal might be successful from a conviction entered up as a consequence of a plea of guilty, has been variously expressed. See Regina v. Boag (1994) 73 A. Crim. R. 35; Regina v. Meissner (1995) 184 CLR 132; Regina v. Maxwell (1995) 184 CLR 501; Regina v. Ross (NSWCCA, unreported 20 February 1994); Regina Liberti (1991) 55 A. Crim. R. 120 and the cases referred to by Spigelman, CJ. in Regina v. Houra [2001] NSWCCA 61 at paras.32-33. The principles have been conveniently summarised in the applicant's submissions taken from Houra (supra) as follows:- "• Where the appellant 'did not appreciate the nature of the charge to which the plea was entered' ( Regina v. Ferrer-Esis (1991) 55 A. Crim. R. 231 at 233). • Where the plea was not 'a free and voluntary confession' ( Regina v. Chiron (1980) 1 NSWLR 218 at 220 D-E). • The 'plea was not really attributable to a genuine consciousness of guilt' ( Regina v. Murphy [1965] VR 187 at 191). • Where there was 'mistake or other circumstances affecting the integrity of the plea as an admission of guilt' ( Regina v. Sagiv (1986) 22 A. Crim. R. 73 at 80). • Where the 'plea was induced by threats or other impropriety when the appellant would not otherwise have pleaded guilty … some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt' ( Regina v. Concotta (NSWCCA, 1 November 1995, unreported)). • The 'plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt' ( Maxwell v. The Queen (supra) at 511). • If 'the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt' ( Regina v. Davies (NSWCCA, 16 December 1993, unreported)). See also Regina v. Ganderton (NSWCCA, 17 September 1998, unreported) and Regina v. Favero [1999] NSWCCA 320." [49] To the cases cited should be added reference to Regina v. Iral [1999] NSWCCA 368 in which the failure of the appellant to appreciate the nature of the charge and difficulties with an interpreter lead (sic) to the appeal being upheld; Regina v. Wilkes [2001] NSWCCA 97 where the advice of trial counsel to enter the plea was held to be imprudent and inappropriate thus occasioning a miscarriage of justice; Regina v. McLean [2001] NSWCCA 58 in which senior counsel's inappropriate advice on the applicant's ability to challenge a relevant matter of fact occasioned a miscarriage of injustice; Regina v. KCH [2001] NSWCCA 273 involving improper pressure by counsel and Regina v. Becheru (CCA, unreported 6 April 2001) and Regina v. Toro-Martinez (2000) 114 A. Crim. R. 533. [50] In Liberti (supra) at 122, Kirby, P. referred to the court's approach to a proposed change of plea or to an asserted want of understanding of what was involved in a plea of guilty as with "caution bordering on circumspection", since such a plea in law is an admission of all the legal ingredients of the offence and is the most cogent admission of guilt that can be made: see Lee, J. in Sagiv (supra). In Meissner (supra) Brennan, Toohey and McHugh, JJ. at 141 said:- "A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if the court does act on such a plea, even if the person entering it is not indeed guilty of the offence."
In Ming Yuk (Raymond) Wong v The Director of Public Prosecutions [2005] NSWSC 129; (2005) 155 A Crim R 37 Howie J said: [33] A court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant's own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea "is not in truth guilty of the offence": Meissner [R v Meissner (1995) 184 CLR 132] at 141. Justice Dawson stated the following at 157 (footnotes omitted): It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud. … [36] If, on the other hand, the advice was concerned with whether he should plead guilty despite his denial of the offence in order, for example, to obtain some advantage for himself then the focus of the proceedings might be different. Simply because a defendant is induced to plead guilty because of legal advice given to him, it does not follow that he should be allowed to withdraw the plea of guilty even if others might disagree with the advice. This is because there will be no miscarriage of justice arising. The issue in such a case might focus on whether the plea of guilty was entered in the exercise of a free choice in the defendant's own interests. Of course the fact that a person is induced into taking a course of action does not mean the person in acting on that inducement is not acting from a free choice. It is not every threat, inducement or pressure applied to a defendant that either requires or justifies a court in permitting the defendant to withdraw a plea of guilty: Sewell above at [34]. [37] But if the plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice. As Dawson J stated in Meissner in the passage quoted above, a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it.
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]: What emerges from those statements of principle is that any miscarriage of justice is to be found in the circumstances in which the applicant came to enter his plea. Ordinarily, this task is not an investigation of the applicant's guilt or innocence, rather it is an examination of the integrity of the plea of guilty itself (R v Stephen J Ray (No 2) [2005] NSWCCA 380 at [20]; Sabapathy v R [2008] NSWCCA 82). The onus lies upon the applicant to demonstrate that leave should be granted.
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]: There are, in fact, two components to the test so stated - first, some circumstance that permits a conclusion that the plea of guilty was not really attributable to a genuine consciousness of guilt, and, second, an "issuable" question about the guilt of the applicant. Neither, alone, is sufficient. As I understand the test, it is necessary for the applicant to point to circumstances that created a doubt about his guilt, as well as circumstances that raise a doubt about his own perception, at the time he entered the plea, of his guilt.
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.
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): It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing is no more than the right to have a superior court interpose to redress the error of the court below: AG v Sillem (1864) 10 HLC 704 at 724 [11 ER 1200 at 1209]; Vic Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this Court has no power to substitute its own findings for those of the trial judge. The members of this Court may individually disagree with the findings which were made, but the Court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this Court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice.
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".
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The appeal against the refusal to permit the withdrawal of the plea should be rejected.

Grounds 1 and 2 - the Appellant's knowledge of an intended robbery

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.
In her Remarks on Sentence the primary judge said this: [56] During the late afternoon or early evening of 19 November 2011 the offender told family members and others present, including Glenda Button, that he was going out. Referring to Richard Smith, the offender told those present that "Poochie" had a "house lined up. There is a safe in it and he wants to do it over". The offender said that someone had told Richard Smith, or "Poochie" as he was known, that there were valuable coins kept in a safe at the house. The offender left his home intending to meet Richard Smith and Steven Smith.
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.
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.
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.
In her statement of 17 December 2010 Ms Button said this: 11. … I also remember Raymond saying, "Poochie's got a house lined up. There is a safe it, and he wants to do it over." He also said words to the effect of, "A mate told Poochie that there was valuable coins in the safe". Everyone was there when he said this. … 20. At this time [when the Appellant returned home the following night] Raymond said, "Me, Pooch and Steven done a break and enter on the bloke up there. Pooch was hitting him in the head. He was jumping off the bed onto his head and stomach. I was in the car, and heard all the smashing. I went into the house to see what was going on. I grabbed him to stop him. I took the hammer off him. Steven was still in the lounge room looking for money and coins. Then we left. I threw my shoes away in the grass. Pooch got rid of the hammer. That's when I come home." Richard said, "Well you and me are going to see Pooch tomorrow, to make sure Pooch takes the rap." Raymond said, "When we were doing break ins, Pooch said that he would take the rap if he ever got caught."
In her statement of 17 December 2010 Kirsty Roe said this: 10. I remember that early in the night, Raymond left the house and his car, … he told us that he was going to go out to Lully's place as he was going to meet up with Poochie and Steven, to have a drink with them. I remember, "Poochie's got a house lined up. He wants to do it over." He also said, "A mate told Poochie that there was valuable coins there." Kack, Chock, Lizzie, Mark, and Richard were all there when he said it. … 17. Then Raymond said, "Me, Pooch and Steven done that house over. I heard Poochie inside smashing it around. Steven and I walked in. We've seen Poochie jumping on his head and stomach. Poochie was smashing him in the head with the hammer. I grabbed the hammer off him and made him stop. I pulled him away. I told him to stop." Chock and Kack said, "Your first priority is the baby and Lizzie. Give it up." Raymond said, "Pooch tripped and cut himself. The coppers will get him on DNA. We got away with nothing, because the bloke wouldn't give us the code to the safe."
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.
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.
The primary judge had regard to all of these matters and concluded: [33] Whilst Ms. Button presented as a reluctant witness who was unwilling to say anything that might be adverse to the offender, I am satisfied that, when she gave her statement, she gave a truthful account of matters within her knowledge. I have had regard to the evidence of Detective Rutledge in drawing that conclusion, but also to the fact that Ms. Button could only have known about some of those matters that she referred to in her statement from her own observations or from what the offender told her. That conclusion is strengthened to a degree by the correspondence between those matters connected with the home invasion that she referred to, and other independent evidence (such as medical and forensic evidence) of those same things. The fact that Kirsty Roe gave a consistent account in her statement, albeit untested, also provides some further reason to accept as truthful those things Ms. Button said in her statement, and affirmed in most regards in her evidence. [34] Although Ms. Roe's statement of 17 December 2010 was unsworn, and not subject to testing, I have had regard to its contents insofar as those contents are supported by evidence independent of Ms. Roe (and of Ms. Button). I do so on the basis that Ms. Roe made her statement willingly and at such a time when she was not drug affected, and she acknowledged within it the obligation on her to tell the truth. Where her statement is consistent with forensic evidence, it may be accepted beyond reasonable doubt.
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).
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.
We would reject these grounds of appeal.

Ground 3: Whether the Appellant applied force to the deceased

Her Honour found that the Appellant applied force to the deceased as follows: [81] Biological material removed from under one of Mr. Davies' fingernails matches the DNA profile of the offender. It is clear there was physical contact between the two. That the DNA was recovered from underneath the fingernail suggests that Mr. Davies may have scratched the offender, perhaps defensively. That I cannot determine. On all of the evidence, however, I have concluded beyond reasonable doubt that the offender applied force to Mr. Davies during this shameful attack, leading to the deposit of DNA. … [84] Whether or not the offender acted as lookout for part of the time, I am satisfied that he entered the house with his two co-offenders, and was a party to the ransacking of Mr. Davies' house in the hunt for items of value, including by forcefully and repeatedly kicking a locked cupboard in an attempt to gain entry. I am satisfied that he applied force to Mr. Davies, and was present whilst his co-offenders did the same. He, like his co-offenders, did nothing to get aid for Mr. Davies.
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.
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.
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.
We would uphold this ground of appeal.

Ground 4: Sentence manifestly excessive

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.
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.
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.
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.
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.
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.
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.
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].
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.
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.
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

We propose the following orders: 1. Appeal against conviction dismissed. 2. Leave to withdraw plea of guilty refused. 3. Grant leave to appeal against sentence. 4. Quash the sentence imposed by Wilson J on 27 March 2015. 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.

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