Citation: Layt v R [2020] NSWCCA 231
Court: Court of Criminal Appeal, NSW
Date: 18 September 2020
Judges: Payne JA, Walton J, Fullerton J
Background
The applicant pleaded guilty on the first day of trial in August 2017 to three counts of aggravated break, enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that he knew a person was present in the dwelling. The offences involved repeated break-ins to the home of a woman with whom he had previously been in a relationship, culminating in an assault that required her hospitalisation. The proceedings also included a Form 1 offence and a s 166 certificate covering six further offences, all directed at the same victim.
The applicant was sentenced in October 2018 on the basis of an agreed statement of facts that he had signed. The sentencing judge imposed an aggregate sentence of seven years with a non-parole period of five years, commencing 19 August 2017.
The applicant sought leave to appeal on three grounds: that the sentencing judge wrongly assessed the objective seriousness of the offences, that the sentence commenced on the wrong date, and that he should be permitted to withdraw his guilty plea and substitute a not-guilty plea.
Legal Issues
- Whether the applicant should be permitted to withdraw his guilty plea on the basis that he had anticipated a shorter sentence
- Whether the sentencing judge erred in the assessment of objective seriousness by relying on the agreed statement of facts
- Whether the sentencing judge erred in fixing 19 August 2017 as the commencement date for the sentence, given the applicant had already been serving the balance of a parole period
Decision
On the conviction appeal (Ground 3), the Court found that the applicant's reason for seeking to withdraw his plea was not a proper basis for doing so. His stated reason was that he had expected a shorter sentence and would not have pleaded guilty had he known the sentence he would receive. The relevant inquiry in such applications is into the integrity of the plea itself, not whether the applicant was disappointed by the outcome. Affidavit evidence from the applicant's former lawyers, which the applicant accepted, confirmed that the agreed facts had been discussed with him and that he understood he would be sentenced on their basis. Far from undermining the plea, the additional evidence the applicant put before the Court on appeal only further confirmed his guilt.
On objective seriousness (Ground 1), the Court rejected the attempt to resile from the agreed facts on appeal. The applicant had signed those facts, and the sentencing judge was required to take them into account. The Court of Criminal Appeal confirmed that an application for leave to appeal against sentence is not an occasion to revise or reformulate the case presented below. A finding of objective seriousness falls within the classic discretionary domain of the sentencing judge, and the applicant had not demonstrated the finding was not reasonably open.
On the commencement date (Ground 2), the Court found no error. The applicant had been serving the balance of a parole period at the time of the new offending. The sentencing judge commenced the new sentence after that parole balance had been served. The Court applied the reasoning from Kerr v R and Ith v R that backdating the sentence to overlap with the parole balance would have offended the principle of totality and would not have provided adequate punishment and denunciation of the current offences. Committing serious offences while on conditional liberty is itself an aggravating factor.
Orders Made
- Leave to appeal refused on all three grounds.
Key Takeaways
- The integrity of a guilty plea, not disappointment with the resulting sentence, is the proper focus of any application to withdraw that plea. An applicant who pleaded guilty because they anticipated a lesser sentence does not, on that basis alone, have grounds to withdraw the plea.
- Where an applicant has signed an agreed statement of facts, the sentencing court is required to take those facts into account, and an appeal against sentence is not the occasion to depart from or reformulate the case that was run below.
- Findings of objective seriousness are classically within the discretion of the sentencing judge. The Court of Criminal Appeal will not disturb such a finding unless the applicant demonstrates it was not reasonably open.
- Commencing a new sentence after the expiry of a parole balance, rather than backdating it to overlap, does not constitute error. In Ith v R, the Court of Criminal Appeal confirmed that backdating in such circumstances would offend the principle of totality and fail to provide adequate punishment and denunciation.
- Additional evidence adduced by an applicant on a conviction appeal may in some circumstances serve only to confirm guilt, as it did here, and will weigh against granting leave to withdraw a plea.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Cases:
- Ali v R [2010] NSWCCA 35
- DL v R [2017] NSWCCA 57
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Ith v R [2013] NSWCCA 280
- Kerr v R [2016] NSWCCA 218
- Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
- Mulato v R [2006] NSWCCA 282
- R v Boag (1994) 73 A Crim R 35
- R v Chiron [1980] 1 NSWLR 218
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Toro-Martinez [2000] NSWCCA 216
- Sabapathy v R [2008] NSWCCA 82
- Thafer v R [2019] NSWCCA 143
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460