Layt v R

Judgment

1. PAYNE JA: The applicant, Dean Lyndsay Layt, pleaded guilty on 7 August 2017, the first day of trial, to three counts of aggravated break, enter and commit a serious indictable offence, the circumstance of aggravation being that he knew there was a person within, contrary to s 112(2) of the Crimes Act 1900 (NSW). This was an amended form of an earlier indictment, which had included two additional offences. Of the two additional offences on the original indictment, one was placed on a Form 1 attached to count 1 on the indictment, and no action was taken on the other.
2. The indictment provided as follows: "DEAN LYNDSAY LAYT 1 On 27 May 2016, at Eagle Vale in the State of New South Wales, did break and enter the dwelling house of [the victim] situate at XXXX Place, Eagle Vale and then in the said dwelling house did commit a serious indictable offence, namely, intimidation, in circumstances of aggravation, namely, he knew that there was a person within the said dwelling house. S 112(2) Crimes Act 1900 Law part code 35327 AND the Director of Public Prosecutions FURTHER CHARGES that DEAN LYNDSAY LAYT 2 On 4 June 2016, at Eagle Vale in the State of New South Wales, did break and enter the dwelling house of [the victim] situate at XXXX Place, Eagle Vale and then in the said dwelling house did commit a serious indictable offence, namely, intimidation, in circumstances of aggravation, namely, he knew that there was a person within the said dwelling house. S 112(2) Crimes Act 1900 Law part code 35327 AND the Director of Public Prosecutions FURTHER CHARGES that DEAN LYNDSAY LAYT 3 On 13 June 2016, at Eagle Vale in the State of New South Wales, did break and enter the dwelling house of [the victim] situate at XXXX Place, Eagle Vale and then in the said dwelling house did commit a serious indictable offence, namely, assault occasioning actual bodily harm, in circumstances of aggravation, namely, he knew that there was a person within the said dwelling house. S 112(2) Crimes Act 1900 Law part code 35327"
3. The Form 1 relevantly contained the following: 1. Place where alleged offence committed: Eagle Vale, New South Wales; 2. Date of alleged offence: 29 May 2016.
4. At the proceedings on sentence there was also a s 166 certificate before the sentencing judge, specifying six offences. These were four intimidation offences, one common assault, and a charge of larceny. All six matters on the s 166 certificate dealt with conduct directed towards the victim.
5. On 18 October 2018, the applicant was sentenced on the basis of an agreed statement of facts dated 7 August 2017 which dealt with both the counts on the indictment and the Form 1 matter. There was a further statement of facts in relation to the s 166 matters. The applicant had signed and dated each page of the agreed statement of facts. The s 166 facts are not signed, but were not challenged by the applicant in this Court. The agreed facts were sufficient to establish each element of every offence.
6. The sentencing judge imposed an aggregate sentence of 7 years, to commence on 19 August 2017 and to expire on 18 August 2024, with an aggregate non-parole period of 5 years to commence on 19 August 2017 and expire on 18 August 2022. Indicative sentences were identified as follows: 1. Count 1: a sentence of 3 years imprisonment, with an indicative non-parole period of 2 years 2 months, taking into account the Form 1 offence; 2. Count 2: a sentence of 4 years 6 months imprisonment, with an indicative non-parole period of 3 years 2 months; 3. Count 3: a sentence of 6 years imprisonment, with an indicative non-parole period of 4 years 3 months; 4. in relation to the s 166 certificate offences, with each offence to date from 19 August 2017: 1. Common assault (sequence 6): 3 months imprisonment; 2. Stalk/intimidate (sequence 8): 6 months imprisonment; 3. Stalk intimidate (sequence 11): 8 months imprisonment; 4. Stalk intimidate (sequence 13): 8 months imprisonment; 5. Stalk intimidate (sequence 14): 10 months imprisonment; 6. Larceny (sequence 15): 6 months imprisonment.
7. The applicant seeks leave to appeal on three grounds which I will reproduce verbatim: "(1) The judge erred in assessment of the objective seriousness of counts 1, 2 and 3. (2) The judge erred in starting the sentence on 19 August 2017. (3) Changing plea of guilty to not guilty of all aggravated break and enter charges."

Conviction appeal - ground 3 - application to change the plea

1. I will first deal with ground 3, the only ground challenging the applicant's conviction. The applicant's principal complaint was that he signed the agreed statement of facts and pleaded guilty in the expectation he would receive a shorter sentence than that imposed. Had the applicant known the length of the sentence he would receive, "I would not have signed [the agreed facts] and we would have went to court and pled not guilty".
2. The applicant's written submissions for all grounds of appeal were five paragraphs long. Those which relate to the application to change his plea were: "3. [crossed out by applicant] … the address at [the victim's address] was still my home address because I was on parole to that address. 4. In May 2016 I went to Probation and Parole and told them I needed to change my address. They told me they had to inspect the new address before the change of address could be approved. 5. I have attached a statement setting out how I agreed to the statement of facts and was not aware at the time it was misleading."
3. The applicant's evidence on the appeal comprised two statutory declarations, both dated 14 May 2020, which together became Exhibit 1 on the appeal. The applicant also tendered his parole conditions, which became Exhibit 2.
4. In the first statutory declaration, forming part of Exhibit 1, the applicant said that: "I was released to my partner's home at Loadstone Road Eaglevale in February 2016, my partner [the victim] has 2 children, that also reside at that address. for the first 2 months of my release we were getting along fine, then [the victim] informed me she had court in April for her second drug driving charge, [the victim] lost her license for 6 months, I told her not to worry because I had my license and could take both children to and from school, which was approximately 10 k's away. [the victim's] use of 'ice' increased as I was now do all the driving, we were also having many verbal arguments, so in May 2016 I informed [the victim] that I would ask Parole if I could change my address to my Sisters address, I told [the victim] that I would continue to take both children to School. In the middle of May 2016 I asked Parole about moving to my Sisters house, Parole informed me that they would have to inspect my Sisters house to make sure it was suitable before I would be allowed to move, when I returned home I told [the victim] and she was happy for me to stay till Parole agreed to the change of address. Two weeks later I had my normal Parole appointment were I asked about my change of address, I was told that Parole were understaffed and they would get to it as soon as possible, again I informed [the victim] of what was happening and she continued to allow me to stay at the Eaglevale address. I have always had a key for the Eaglevale address given to me by [the victim] and have always thought of this address as my primary address and also my Parole address."
5. In the second statutory declaration, forming part of Exhibit 1, the applicant said that: "On the day of my Trial my Barrister Mr Doyle informed me that he could not beat the charges and that I should plead guilty, he also told me that he would speak to the DPP and get the facts changed. After he had spoken to the DPP he told me that I would be looking at a maximum of 5 years with a period of no more than 3.5 years in prison, I asked if this included the balance of my Parole, to which I was told it would, as I had full confidence in my Barrister I signed the amended facts without reading them as I did not have my reading glasses with me. I was sentenced later that day to a maximum of 7 years with no back date on my parole, giving me an earliest release date of 18th August 2022. I believe at the time of my Trial Mr Doyle had advised me incorrectly and had failed me by not giving the Judge information about my Parole address and also the courses I had done since being released as well as the additional counselling I was receiving at the Glenquarry Anglican Church and also the job I had obtained at Orbital traffic control which I was due to start on the 1st of July 2016. These are the reason that I now feel that I have grounds for a not guilty plea for the charges of aggravated break and enter."
6. The Crown read two affidavits on the appeal: 1. an affidavit of Mr Peter Doyle, the applicant's barrister at the trial, affirmed on 15 July 2020; and 2. an affidavit of Mrs Gianna Doyle, sworn on 9 August 2020. Mrs Doyle is the principal solicitor at Doyle Legal, which represented the applicant at the trial. Mrs Doyle had personal carriage of the applicant's matter for some of the relevant period, including during and prior to sentencing.
7. The applicant did not object to either affidavit and did not seek to cross-examine either Mr or Mrs Doyle, saying "I do believe everything that they've said is correct on there".
8. The acceptance by the applicant of the content of the two affidavits is dispositive of the conviction appeal. Mr Doyle gave unchallenged evidence that: 1. the applicant had instructed him that the victim had been untruthful when she alleged that Mr Layt had attended her address, broken in and assaulted her, as the applicant had a valid alibi for the most serious offence (where ultimately the indicative sentence was 6 years imprisonment, with an indicative non-parole period of 4 years 3 months); 2. prior to the trial the police served evidence casting grave doubt upon Mr Layt's alleged alibi. The only possible inference available from that evidence was that Mr Layt had taken a phone from the victim's home on the night of the assault. This evidence strongly supported the victim's account and tended to establish that the alibi evidence was false; 3. on Saturday 5 August 2017, Mr Doyle had a conference with Mr Layt at the Metropolitan Remand and Reception Centre at Silverwater. Mr Doyle explained that there were significant problems with the applicant's alibi instructions; 4. on that day, Mr Layt signed written instructions to enter a plea of guilty. Those instructions provided, in part: "I am aware that a lengthy term of imprisonment will be imposed on me if I am convicted of these charges I now direct my lawyers to enter a plea of guilty to the charges and, if possible, negotiate a plea deal with the Crown." 1. on Monday 7 August 2017, Mr Doyle had negotiations with the Crown Prosecutor. Agreed facts were drafted. Mr Doyle took those facts to Mr Layt and read those facts to him. Mr Layt then signed the agreed facts in his presence. Mr Layt was later brought up before Judge Herbert where Mr Layt was re-arraigned and entered pleas of "guilty" to each count; 2. Mr Doyle did not tell the applicant what his sentence would be. Mr Doyle explained that he was not the judge, and that the judge might have a different opinion to him. Mr Doyle says that he told the applicant that his opinion was that a head sentence of about five years would be appropriate and that a non-parole period of around "three to three and a half years" would be appropriate. Mr Doyle explained to the applicant that it would be up to the sentencing judge to decide when the sentence would commence; 3. Mr Doyle understood that the applicant's parole conditions required him to reside at the victim's address, but also understood that the victim had withdrawn her permission for him to reside there; 4. the applicant instructed Mr Doyle that he did not want to give evidence at his sentence hearing.
9. Mrs Doyle gave unchallenged evidence that: 1. the applicant was not told that Mr Doyle "could not beat the charges" on the first day of trial. On the previous weekend the applicant had instructed Mr Doyle in writing to negotiate a plea of guilty; 2. the agreed statement of facts was negotiated throughout the day on 7 August 2017 and annotations were made which were discussed with the applicant.
10. The applicant was cross-examined on the appeal. The applicant accepted: 1. Mr Doyle had visited him in gaol on 5 August 2017, and he had instructed Mr Doyle on that day to enter a plea of guilty; 2. he had signed the agreed statement of facts on 7 August 2017; 3. he had two conferences with his lawyers on 7 August 2017 to negotiate the facts; 4. prior to signing those agreed facts Mr Doyle had read the facts to him; and 5. he understood that he would be sentenced on the agreed facts.
11. The applicant's evidence in Exhibit 1 is flatly inconsistent with the unchallenged evidence of Mr and Mrs Doyle, and the contemporaneous documents, including the annotated version of the statement of agreed facts which was ultimately signed by the applicant. Having seen the applicant give evidence, I would not accept any assertion about a matter of fact made by him unless it was independently corroborated.
12. I reject the assertions of fact contained in the first statutory declaration forming part of Exhibit 1. I find that the applicant signed the statement of agreed facts, fully understanding their content. I reject the applicant's statements that the victim "continued to allow me to stay at the Eaglevale address" during the course of the events the subject of counts on the indictment. That assertion is flatly inconsistent with all of the evidence, including the admissions made by the applicant in the agreed statement of facts. I reject the applicant's assertion that "I have always had a key for the Eaglevale address". Not only do the agreed facts state that the applicant returned the key to the victim prior to the relevant events, those facts refer to events and statements which could only have occurred if the applicant did not have a key to and was not authorised to enter the premises. The applicant's assertions about having permission to reside at the victim's house and having a key to those premises are inconsistent with the detailed evidence about the lock picking device which the applicant agreed he showed the victim as providing the means for him to enter her home in the middle of the night.
13. I do not accept any of the assertions in the second statutory declaration forming part of Exhibit 1. The account contained there of the advice given to the applicant by Mr Doyle is not correct. I reject the applicant's account and accept the unchallenged account given by Mr Doyle. I also reject the applicant's criticisms of the way in which Mr Doyle conducted the sentencing proceedings. I find that Mr Doyle acted in accordance with the applicant's instructions in the conduct of the sentencing proceedings.
14. The applicant's submission that his parole conditions provided permission for him to reside at the victim's house are misconceived. As the agreed facts and the contemporaneous documents made clear, the victim had forbidden the applicant to reside in her home. The applicant's parole conditions provided no permission to break and enter the victim's home.
15. The applicant's real complaint is that: "in good faith I signed [the agreed facts] believing that I would be given three and a half years as a bottom sentence. If I didn't believe that at the time I would not have signed it and we would have went to court and pled not guilty."
16. I accept Mr Doyle's evidence that the applicant had been advised that the sentence to be imposed was a matter for the sentencing judge. Given the applicant's acceptance of Mr Doyle's account, I find that the applicant understood that he could receive a longer sentence than one having a three years and six month non-parole period that Mr Doyle advised was "appropriate".
17. Where an applicant has entered a plea of guilty and subsequently seeks to appeal against conviction, it is not necessary to conduct an examination into the applicant's guilt or innocence. Rather, the relevant inquiry is into the integrity of the plea of guilty: Sabapathy v R [2008] NSWCCA 82 at [14]; Thafer v R [2019] NSWCCA 143 at [287].
18. When a person enters a plea of guilty, that person admits to all of the elements of the offence (at least to the minimum level necessary for a conviction) and the conviction will not be set aside unless it can be shown that a miscarriage of justice has occurred: R v Chiron [1980] 1 NSWLR 218.
19. The rarity with which this Court grants leave to withdraw the plea of guilty at trial is an aspect of the public interest in the finality of proceedings: Reg. v O'Neill [1979] 2 NSWLR 582.
20. While the categories are not closed, some examples of where leave to withdraw a plea of guilty has been granted are: 1. the nature of the charge to which the plea has been entered is not appreciated: R v Ferrer-Esis (1991) 55 A Crim R 231 at 233; 2. the plea is not "a free and voluntary confession": R v Chiron at 220; 3. the "plea [is] not really attributable to a genuine consciousness of guilt": R v Murphy [1965] VR 187 at 191; 4. there has been a "mistake or other circumstances affecting the integrity of the plea as an admission of guilt": Sagiv v R (1986) 22 A Crim R 73 at 80; 5. the plea has been "induced by threats or other impropriety" and the appellant would not otherwise have pleaded guilty: R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep); and 6. the plea is not unequivocal or is made in circumstances suggesting it is not a true admission of guilt (Maxwell v The Queen (1996) 184 CLR 501 at 511; [1996] HCA 46).
21. It is for the person seeking to withdraw the plea of guilty to satisfy the Court that leave to withdraw the plea should be granted: R v Boag (1994) 73 A Crim R 35; R v Ferrer-Esis. It is only where the material before the Court discloses a real question about the guilt of an accused that the Court will grant leave to withdraw the plea: R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533.
22. Leave is required to raise ground 3 for two reasons. First, ground 3 raises matters of fact or questions of mixed law and fact: s 5(1)(b) Criminal Appeal Act 1912 (NSW). I would refuse leave to appeal. The applicant has not demonstrated any feature of the case that calls the integrity of the plea into question. The material before the Court discloses no real question about the guilt of the applicant. If anything, the additional evidence only further underlines the applicant's guilt. Secondly, the application is out of time. The question of leave to extend time "cannot, however, be divorced from an assessment of the strength of the case sought to be advanced in this Court": DL v R [2017] NSWCCA 57 at [14]. There is no basis to conclude that the applicant has any prospect of being granted leave to withdraw his plea.
23. I would refuse leave to appeal on ground 3.

Ground 1: The judge erred in her assessment of the objective seriousness of counts 1, 2 and 3

1. The applicant's submissions relevant to Ground 1 are: "2 The Judge's findings in relation to the seriousness of counts 1, 2 and 3 were wrong because she was misled by the statement of facts and she was not informed of some facts. At the time of the offences I believed xxx, Eagle Vale was my home address. 3 [crossed out by applicant] the address at [the victim's address] was still my home address because I was on parole to that address. 4 In May 2016 I went to Probation and Parole and told them I needed to change my address. They told me they had to inspect the new address before the change of address could be approved."
2. For the reasons earlier given, I reject the applicant's assertion that he had permission to reside at the victim's home at the time of the offending. The applicant's assertion is foreclosed by the agreed facts which included text messages which demonstrate the falsity of the applicant's account.
3. On 27 May 2016, the following text was sent by the applicant to the victim: "You said you would call after you got takeaway so now I guess you're either out with your sister, partying there or asleep. Guess I'm coming over to find out" "I'm at your place" (Emphasis added.)
4. On 4 June 2016, the applicant texted: "… I will stay away and won't hassle you anymore…" (Emphasis added.)
5. The sentencing judge was obliged to take the agreed facts into account. Ground 1 is in effect an attempt to resile from the agreed facts.
6. An application for leave to appeal about sentence is not the occasion for revision or reformulation of the case presented below: Zreika v R [2012] NSWCCA 44 at [81]; (2012) 223 A Crim R 460. The applicant has not shown that his sentencing resulted in any arguable miscarriage of justice.
7. A finding of objective seriousness is a matter classically within the discretion of the sentencing judge that this Court will be slow to set aside: Mulato v R [2006] NSWCCA 282 at [37] (per Spigelman CJ with whom Simpson J agreed); Ali v R [2010] NSWCCA 35 at [33]. To succeed on this ground the applicant would have to satisfy this Court that the sentencing judge's finding of objective seriousness was not reasonably open, applying the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40.
8. The applicant has not established any arguable basis for the sentencing judge's finding of objective seriousness to be disturbed. I would refuse leave to appeal on ground 1.

Ground 2: The judge erred in starting the sentence on 19 August 2017

1. The applicant submitted, in respect of this ground that: "1. The Judge backdated the sentence to start at the end of the balance of parole I was serving and not the date I was arrested for these offences, 13 June 2016. The Judge's finding that the breach of parole was an aggravating factor and failing to back date the sentence to 13 July 2016 is double punishment. These offences were the reason for the breach of parole. The judge gave no consideration to this and failed to take into account these offences were different to the offences I was serving on the balance of parole."
2. The relevant facts are that the applicant was arrested in relation to this offending on 13 June 2016 and was refused bail. At the time, the applicant was on parole for two offences of "Supply Prohibited Drug on an Ongoing Basis", having served the 18 month non-parole period of a 3 year head sentence. On 1 July 2016, the State Parole Authority revoked the applicant's parole with the effect that he was to serve the balance of parole of one year, two months and six days to commence on 13 June 2016 and to expire on 18 August 2017.
3. The sentencing judge referred to the applicant's custodial history as follows : "The offender has been bail refused on these matters since 13 June 2016. He has served the balance of parole from 13 June 2016 until 18 August 2017 in relation to charge H number ending 607. From 7 September 2016 the offender was also bail refused in relation to an unrelated matter which ends 768, which is listed for trial on 11 June 2019. Consequently, the offender has spent no time in custody solely referrable to these offences."
4. Her Honour also referred to the applicant's criminal history when considering the aggravating factors: "… the offender has a criminal history which includes prior convictions for negligent driving, assault occasioning bodily harm in 1987, malicious damage in 1990, assault in 1991, offensive behaviour, multiple driving offences, assault occasioning actual bodily harm in 2006, resisting a police officer, assault occasioning actual bodily harm in 2011, firearm and drug offences in 2012 and further serious drug offences in 2014. The offender was on parole for the drug offences since 18 February 2016 when he committed these offences, thus committing these offences less than three months into his parole period. His parole was treated [as] having been revoked on 13 June 2016 and it expired on 18 August 2017. While the offender's criminal history does not aggravate these offences, it certainly does disentitle him to leniency."
5. Her Honour said that: "The Courts have made it clear that the commission of further offences whilst on conditional liberty is an aggravating factor (Kerr v Regina [2016] NSWCCA 218)."
6. In Kerr v R [2016] NSWCCA 218, Bathurst CJ (with whom Hoeben CJ at CL and Price J agreed) said: "[71] Further, this Court on a number of occasions has stated that the fact that the offence was committed whilst the offender was on conditional liberty constitutes an aggravating circumstance: R v Harrison [2001] NSWCCA 79; (2001) 121 A Crim R 380 at [5]; R v Cicekdag [2004] NSWCCA 357; (2004) 150 A Crim R 299 at [7]; Frigiani v The Queen [2007] NSWCCA 81 at [24]-[25]. In the latter case, Howie J made it clear that the offence in respect of which the offender was on conditional liberty did not have to be similar to the offence the subject of the indictment before it could be considered an aggravating factor, although it would generally be considered more aggravating where the conduct was similar to that for which the offender is being sentenced: at [24]."
7. In Ith v R [2013] NSWCCA 280, the offender committed further offending within months of being released on parole. In that case, the sentencing judge fixed the commencement date for the new offence after the expiration of the balance of parole. Hoeben CJ at CL observed (at [52]) that the commission of a serious offence shortly after the commencement of parole "shows considerable contempt for the justice system" and that "to have further backdated the commencement date of the sentence would have offended the principle of totality and would not have provided adequate punishment and denunciation of the present offence". The Crown submitted that the same reasoning applies here. I agree.
8. In the present case, the sentencing judge gave consideration to the commencement date of the sentence, taking into account that the applicant had served the entirety of the balance of parole for the previous sentence. The sentencing judge did not err in fixing the commencement date for the sentence as being 19 August 2017.
9. I would refuse leave to appeal on ground 2.

Conclusion and order

1. For the foregoing reasons I propose that leave to appeal should be refused.
2. WALTON J: I agree with the orders proposed by Payne JA and his Honour's reasons for judgment. In reaching that conclusion, I formed the view, upon my observations of the applicant, that he was not a witness of credit and, accordingly, I would not accept his evidence unless the subject of corroboration.
3. FULLERTON J: I agree with Payne JA.

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