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. In his affidavit he says that since he was sentenced he has been confined under a strict regime, and in harsh circumstances. He wants the Court to take that into account, and also says that there are other matters about his personal circumstances that were not put to the Court when he was sentenced. He does not give any indication of the nature of those matters.
A Judge of this Court refused to extend time. The Judge took the view that there was no adequate explanation for the substantial delay. He also took the view that the proposed appeal had no reasonable prospects of success.
Mr Fyfe has requested that his application be considered and determined by the Full Court. The Court has directed that the application be heard in open court. The applicant was represented by Mr Mead, who put submissions on his behalf.
In considering whether to extend time the Court has to consider the length of the delay, the reasons for the delay, and whether the grounds for appeal disclose matters that suggest that an extension of time should be granted. In other words, the Court has to give some consideration to the merits of the proposed appeal.
The delay is a lengthy one. It is more than eight years. The time limit within which an appeal must be instituted is not fixed simply for reasons of administrative convenience. There is a significant public interest in the fixing of a time beyond which a decision by a court, including a decision on sentence, will not be able to be disturbed unless there are good grounds for extending the period. The greater the period of time that has elapsed, the more persuasive should be the reasons for extending the time. In the case of an appeal against sentence, there are often difficulties in considering an appeal adequately, when the passage of time means that the sentencing regime has altered, and that the circumstances as they were at the time of sentence have also substantially changed. There may well be circumstances that have arisen that could not have been foreseen in 1996, but that is not a reason to lean towards re-opening the sentence.
With those points in mind, I turn to the question of an extension of time.
The reasons put forward by Mr Fyfe for the failure to apply sooner are not at all persuasive. In substance, what he says is that he did not give much thought in 1996 to the question of whether he should appeal, and now has changed his mind. That is not a sufficient explanation for the delay. Apart from that, through his counsel, he says that there are matters that the sentencing Judge did not take into account adequately, and that there are some possible errors in the sentence. Accordingly, it is appropriate to consider these points.
The first submission is that the Judge did not allow for the fact that he was extending by 28 years an existing non-parole period of nine years. The point is made that the Judge did not refer to the total length of time that the applicant would serve in custody.
I consider that that point has no prospect of success at all. The Judge was clearly aware of the existing sentence, and could not possibly have overlooked the effect of the extension that he was proposing to make.
The next submission is that the Judge failed to consider whether the total period to be served was a fair and reasonable total sentence. In one sense it can be said that the Judge should not have done that in any event. The Judge’s task was to impose an appropriate sentence for the crime of murder, not a sentence that was appropriate for the crime of murder and the earlier crime of attempted murder.
That is not to say that the Judge was not entitled to have regard to the fact that he was extending an existing non-parole period. Indeed, it was appropriate for the Judge to have regard to that fact. But his task was to fix an appropriate sentence for the crime of murder. For example, it was relevant to consider the age of the applicant when the proposed extended non-parole period expired, and that of course would depend upon the length of the new non-parole period.
There is no reason to think, once again, that the Judge overlooked this aspect of the matter.
Nor do I accept the submission that the extension of the non-parole period is shown to be excessive by comparing the length of the extended period with sentences imposed on other offenders for the offences. In other words, it is not relevant to point to the fact that other persons convicted for murder were ordered to serve non-parole periods that are not as long as the combined non-parole period to be served by the applicant. The fact that the applicant was serving a sentence for an earlier serious crime, and his very bad record, make his circumstances fundamentally different from the circumstances of the offenders with whom the comparison is sought to be made.
I consider that in this respect the argument has no prospect of success.
Nor is there any prospect of success for the argument that the Judge impermissibly fixed the non-parole period by reference to the anticipated life expectancy of Mr Fyfe. There is simply nothing in the case to suggest that he did that.
The Judge referred in passing to the remarks of King CJ in R v Von Einem (1985) 38 SASR 207 at 218-221. However, a reference to the transcript of the submissions to the Judge discloses that counsel referred the Judge to the decision for two points only. First, for the need for the Judge to consider the minimum time required to satisfy the punitive, deterrent and preventive purposes of punishment, having regard to the age of the offender. Second, for the need for the Judge to consider the prospects of the offender responding to parole. The emphasis of the submission was on the need for deterrence and prevention, on the poor prospects of rehabilitation, and on the question of when it would be safe to release Mr Fyfe back into the community. Passing reference was made to Mr Fyfe’s age and to his life expectancy. But I can find no suggestion that the non-parole period should be longer because of Mr Fyfe’s age or life expectancy. In fact, he was 34 years of age at the time, and, as was noted in submissions, would be 42 years of age when the extension to the non-parole period began to operate. The point being made to the Judge was that the non-parole period should allow the release of Mr Fyfe at some stage, and not deny him a prospect of release. However, there was an emphasis on the need to consider the interests of the community.
There is no hint in any of this of the non-parole period having been arrived at by reference to Mr Fyfe’s life expectancy. I can find no indication at all of any error in this respect. Nor do the Judge’s reasons hint at any such error.
The proposed application for leave to adduce fresh evidence, to establish the circumstances in which Mr Fyfe has been kept in custody since 1996, also has no prospect of success. When he was sentenced there was every reason to think that he would be kept under strict conditions. He had a shocking record of violent offending, and was a dangerous man. The sentencing Judge had no way of determining how long the applicant would be kept in such conditions, and it is not possible to say whether the applicant has been kept in his present conditions for longer than the Judge could have anticipated. Nor can it be said that what has happened could not have been foreseen at the time. In my opinion it could have been foreseen that Mr Fyfe would be kept in harsh conditions up until the present time. The proposed material does not amount to fresh evidence.
Accordingly, the proposed grounds of appeal, in my opinion, have no reasonable prospect of success.
It is appropriate to stand back and look at the matter more broadly. I am conscious of the fact that Mr Fyfe had his non-parole period extended for a very substantial period of time, 28 years. That being so, despite the great delay the Court is slow to say that he should not have the chance to have an appeal against sentence heard.
But the only reason for extending the time is, in effect, to accommodate a change of attitude on the part of Mr Fyfe. If the matters that he wishes to raise appeared to have a prospect of success, there might still be reason to extend the time for the making of the application, bearing in mind the length of the sentence. But, as I have indicated, I am satisfied that the matters that Mr Fyfe wishes to raise have no reasonable prospect of success.
For those reasons I would refuse to grant an extension of time within which to seek leave to appeal against sentence.
PERRY J: I have had the benefit of perusing the reasons of Doyle CJ, with which I agree.
I add some comments with respect to one aspect of the matter.
The duty of the court to fix or extend a non-parole period arises by reason of s 32 of the Criminal Law (Sentencing) Act 1988 (“the Act”) which relevantly provides:
“32(1) Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must-
(a)if the person is not subject to an existing non-parole period - fix a non-parole period; or
(b)if the person is subject to an existing non-parole period - review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court);
….”
In a case such as this, as to which s 32(1)(b) applies, given that the applicant was subject to an existing non-parole period, it was necessary to review the existing period and extend it “by such period as the court thinks fit”, provided that the extension did not exceed the period of imprisonment then being imposed. Obviously, the proviso has no practical application where the period of imprisonment is for life.
The extension of an existing non-parole period more commonly arises in cases not involving life imprisonment. In such cases, there will ordinarily be an existing term of imprisonment to which a non-parole period applies, and a further term of imprisonment is imposed. The further term of imprisonment may or may not be directed to be served cumulatively upon the existing sentence: see s 31 of the Act.
In such a case, the review of the non-parole period must take into account the total period of imprisonment to be served. The extension which the court thinks fit to impose in such a case may not necessarily equate with the length of the non-parole period which might have been imposed if the fresh sentence was to stand alone, and there was no existing non-parole period.
The situation is a little different where the court is imposing a mandatory sentence of life imprisonment on a prisoner who is already subject to an existing non-parole period. But even so, I do not think that in the exercise of the discretion as to the extension of the existing non-parole period, the length of the extension should necessarily equate with the non-parole period which might have been imposed if there was no existing non-parole period.
In this case, when considering the length of the extension, it was necessary for the sentencing judge to bear in mind that the extension would not begin to operate until some years later, when the appellant was 42 years of age. In those circumstances, it would have been open to the sentencing judge to take the view that the extension should be shorter than would be the case if it was to operate from the date of sentence.
But even allowing for that consideration, it seems to me that, in the first place, the sentencing judge must have been well aware of the nature of the exercise which he was performing, that is, extending an existing non-parole period of 9 years. Furthermore, the period of 28 years would have been a merciful non-parole period, given the circumstances of the offending, if the applicant had not been serving an existing non-parole period.
Looking at the matter broadly, I am unpersuaded that it is reasonably arguable that the extension in question was manifestly excessive.
It follows that there is no reasonable prospect of an appeal succeeding.
In those circumstances, the application for an extension of time within which to seek leave to appeal against sentence, should be refused.
I would so order
VANSTONE J: I would refuse to grant an extension of time for the reasons given by the Chief Justice.