R v Fyfe - [2004] SASC 391

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FYFE
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Vanstone)
2 December 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for an extension of time and leave to appeal against sentence - appellant pleaded guilty to a charge of murder committed while serving a sentence of imprisonment for attempted murder - non-parole period extended by 28 years - appellant previously instituted an appeal but abandoned it - whether an extension of time to make an application for leave to appeal should be granted - whether there is sufficient explanation for the delay - whether Judge in sentencing took into account existing non-parole period - whether extension of the non-parole period was excessive - whether the conditions appellant kept in while in custody relevant to sentence - whether grounds of appeal have reasonable prospect of success - application for an extension of time refused.
Criminal Law (Sentencing) Act 1988 s 31, s 32, referred to.
R v Von Einem (1985) 38 SASR 207, considered.

R v FYFE
[2004] SASC 391
Court of Criminal Appeal: Doyle CJ, Perry and Vanstone JJ

DOYLE CJ: This is an application for leave to appeal against sentence. The sentence was imposed in 1996. Accordingly, the application for leave to appeal cannot be considered unless the Court grants an extension of time for the making of the application.
In 1996 the applicant, Mr Fyfe, pleaded guilty to a charge of murder. When he committed the offence he was serving a sentence of imprisonment for the offence of attempted murder. He murdered another prisoner, while serving that sentence.
The Judge imposed the mandatory sentence of life imprisonment on the charge of murder, and extended the existing non-parole period by 28 years.
The non-parole period fixed in respect of the sentence that Mr Fyfe was already serving was due to expire in November 2004. The extension meant that he will not be eligible for release from prison until 2032. By then the applicant will have been in prison for about 45 years and 6 months, and will be 70 years of age. He will have been in custody since about May of 1987.
The application for an extension of time and for leave to appeal is brought to challenge the length of the non-parole period.
The Court records indicate that there has been no previous appeal against sentence. The applicant was unrepresented when he was sentenced. In his affidavit he says that he instituted an appeal in 1996, but then abandoned it. That appears to be a mistake on his part.
In his affidavit Mr Fyfe says that in 1996 he neither sought nor was given legal advice in relation to a possible appeal. He did not give proper thought to the question of an appeal. Now he wants to appeal.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fyfe

Details

AGLC: R v Fyfe [2004] SASC 391
Case: [2004] SASC 391
Decision Date: 2 December 2004

CaseChat Overview and Summary

In the case of R v Fyfe, the appellant stood convicted of the serious offence of murder, committed while he was already serving a sentence for attempted murder. The central issue in the proceedings was whether the appellant should be granted an extension of time to appeal against the severity of his sentence, which was extended by 28 years as a result of his conviction for the new offence. The appellant had previously initiated an appeal but subsequently abandoned it, citing reasons related to his legal representation. The court was tasked with determining whether an extension of time was warranted, given the circumstances of the delay, and whether the sentencing judge had appropriately considered the appellant's existing non-parole period. Additionally, the court had to assess whether the extension of the non-parole period was justified and whether the conditions the appellant maintained while in custody were relevant to the sentencing considerations.

The court examined the appellant's explanation for the delay in making the application for leave to appeal. It was noted that the appellant had previously attempted to appeal his sentence but had abandoned that appeal due to issues with his legal representation. The court scrutinised the sufficiency of this explanation and considered whether the appellant had acted diligently and promptly in seeking an extension of time. Furthermore, the court assessed whether the sentencing judge had adequately taken into account the appellant's existing non-parole period when imposing the new sentence. The court also considered whether the 28-year extension of the non-parole period was excessive and whether the conditions under which the appellant was held in custody were relevant to the sentence imposed. Ultimately, the court needed to determine if the grounds of appeal had a reasonable prospect of success.

The court concluded that the appellant had not provided a sufficient explanation for the delay in seeking an extension of time. The reasons given for the delay, primarily related to legal representation, were not deemed adequate. Moreover, the court found that the sentencing judge had appropriately considered the existing non-parole period when imposing the new sentence. The court also determined that the 28-year extension of the non-parole period was not excessive, and the conditions of the appellant's custody were not relevant to the sentencing decision. As a result, the application for an extension of time was refused, and the appellant's opportunity to appeal against the sentence was denied. The court held that the grounds of appeal did not have a reasonable prospect of success, leading to the final outcome of the case.

Orders