R v Fyfe - [2004] SASC 321

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v FYFE
Reasons for Decision of The Honourable Justice Anderson
5 October 2004
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
LEAVE TO APPEAL
Applicant sought extension of time for leave to appeal - application eight years out of time - application on grounds that: sentence manifestly excessive and that sentencing remarks lacked any reference to the principle of totality - applicant alleging miscarriage of justice - applicant seeking to adduce fresh evidence - principles relevant to extension of time discussed - Von Einem principle discussed - held: principle of totality adequately dealt with when non-parole period fixed - application dismissed.
Criminal Law Consolidation Act 1935 (SA) 357(2), referred to.
R v Bartle (1991) 57 A Crim R 51; R v Gray [2004] SASC 218; Jackamarra v Krakouer (1998) 195 CLR 516, applied.
Fyfe v Bordoni and Ors (1998) 199 LSJS 401; Fyfe v South Australia [2000] SASC 84; R v Von Einem (1985) 38 SASR 207, discussed.
R v Foster (1996) 187 LSJS 135; Gikas v Police (1999) 202 LSJS 301; Inge v R (1999) 73 ALJR 1563, considered.

R v FYFE
[2004] SASC 321

ANDERSON J The applicant was convicted of murder and Matheson J fixed a 28-year non-parole period on 28 May 1996. He seeks an extension of time for leave to appeal over eight years later against that non-parole period which he alleges is manifestly excessive. The leave is sought pursuant to s357(2) of the Criminal Law Consolidation Act (“CLCA”) 1935 (SA).
The 28-year period was added to existing non-parole periods fixed in relation to other offences so that the total non-parole period exceeds 42 years.
The murder in question occurred in the kitchen at Yatala Labour Prison when the victim was working in the kitchen. The applicant came up from behind the victim and stabbed him in the back with a knife. The sentencing judge found that the crime was clearly premeditated and put it into the most serious category of murder. His Honour said:
“You show no remorse or contrition. Your plea of guilty was so belated and made in such circumstances that I only make a deduction of two years for it from the period I would otherwise fix.”
At the time of fixing the non-parole period, the applicant was 34 years of age. He had a particularly bad record of violent crimes at the time he committed this murder. I will quote from Matheson J in relation to the past record of the applicant:
“Your record of offences of violence is one of the worst I have ever seen. In 1982 you had two separate convictions for assault. In 1985 you were convicted of assaulting the police, on another occasion of an assault occasioning actual bodily harm and on another occasion of causing death by dangerous driving. In 1987 you were convicted of attempted murder for which offence you used a knife, and on another occasion of assaulting the police. In 1993 you were convicted of causing grievous bodily harm. That offence was committed in the Port Lincoln Prison and the weapon used was a cricket bat. In 1994 you were convicted of attempted murder. That offence was committed in the Yatala Labour Prison and the weapons used were a pick and a hammer. In 1995 you were convicted of assaults on a Correctional Services officer and the then prosecutor respectively at an earlier hearing in the Supreme Court. You are obviously a very violent man indeed.”
In this matter, counsel for the applicant seeks leave to appeal out of time on the basis that the non-parole period set by Matheson J is manifestly excessive. He also points to what he says is a lack of reference in the sentencing submissions to the principle of totality. As part of the argument in relation to the non-parole period being manifestly excessive, he seeks the leave of the court to adduce fresh evidence. That relates to the fact that the applicant has already spent about nine years in G-Division at Yatala Labour Prison.
The applicant has been before two former judges of this court in relation to his attempts to be taken out of G Division.
Olsson J dealt with an application for judicial review in Fyfe v Bordoni and Ors (1998) 199 LSJS 401. That application was not finally determined because the judge was not certain whether judicial intervention was justified at that stage.
His Honour gave a detailed description of the conditions which prevail in G Division. The daily regime was described graphically in a detailed analysis. It is clear, to use the words of Olsson J (at 4), that G Division is:
“…very Spartan and restrictive. It is an extremely claustrophobic, restrictive and oppressive environment.”
Later, Martin J dealt with another application for judicial review by Mr Fyfe. This is reported in Fyfe v South Australia [2000] SASC 84. His Honour pointed to the duty of the prison management to look after the welfare of the applicant but also the welfare of the other prisoners. Martin J was not convinced that the decision to keep Mr Fyfe in G Division at that time was unreasonable.
In the view I take as to the length of delay in making this application for leave to appeal, the matters put forward explaining the delay, the adverse effect upon the administration of justice, the respondent’s right to retain judgment, and the likelihood or otherwise of any success if an application were allowed out of time, it is not necessary to go into the question of whether fresh evidence should be allowed in considering whether the non-parole period imposed by Matheson J was manifestly excessive.
If the Court of Criminal Appeal did give leave to appeal out of time, it would then consider whether it was appropriate to admit fresh evidence. It is not relevant however in the view which I take.
I start with the application for an extension of time. The principles are set out in the decision of R v Bartle (1991) 57 A Crim R 51 at 53. The relevant considerations are as follows:
1the length of the delay;
2the reasons for the delay;
3any adverse effect upon the administration of justice that the delay would cause;
4the respondent’s right to retain judgment after the time for appeal has elapsed; and
5merits of the proposed grounds of appeal and whether there is any likelihood of success (when an) application is allowed out of time.
The applicant gives reason for the delay in an affidavit filed by him in these proceedings. The reasons given are, in my view, totally unsatisfactory. They merely point to the fact that the applicant had been preoccupied with other things on his mind since he was sentenced in May 1996.
Mr Fyfe says in his affidavit that when he made his submission on non-parole before Matheson J, he was concentrating on what he perceived to be the negligence of the Department for Correctional Services in relation to his placement in the prison. He says that he didn’t put to the learned sentencing judge matters that should have been put concerning his personal history and his situation within the prison system. I do not regard these as valid reasons to enable me to grant leave to appeal so long out of time when all of the other factors mentioned in R v Bartle are taken into account.
In R v Gray [2004] SASC 218 Nyland J dealt with the question of the merits of the proposed grounds of appeal, amongst other things, in considering whether to grant leave to appeal out of time. Her Honour said that something more than a reasonably arguable point is required when the application is out of time.
Her Honour has summarised the extension of time principles for such an application in her reasons at [11-20]. Her Honour there deals with the cases and principles emerging pursuant to s357(2) of the CLCA.
In particular Nyland J did not follow what Lander J had said in R v Foster (1996) 187 LSJS 135 at 139 and Gikas v Police (1999) 202 LSJS 301 at 306. These passages from the reasons of Lander J are set out by her Honour in her reasons.
Having summarised the cases, her Honour said, at [19]:
“Having considered these authorities I consider that the submission put by Mr Hinton is correct, that is, that when an appeal is instituted pursuant to s352(1)(a)(ii) CLCA out of time, the reasonably arguable test no longer applies. The right of appeal having been lost, the question whether or not leave to appeal should be granted is subsumed in the principles to be applied in determining whether or not an extension of time in which to seek leave to appeal should be granted.”
Her Honour went on to say, at [20]:
“In my opinion, therefore, the proper approach with respect to an application for an extension of time in which to appeal, absent exceptional circumstances, is for the court to consider the grounds and determine whether they disclose reason for apprehending that a miscarriage of justice has occurred, substantial grounds on the merits, or a question that justifies serious consideration, irrespective of the length of the delay.”
In the High Court in Jackamarra v Krakouer (1998) 195 CLR 516 (at 521), Brennan CJ and McHugh J said:
“Cases such as Palata (Palata Investments Limited v Burt and Sinfield Limited [1985] 1 WLR 942 at 946) are therefore concerned with applications that seek to put at risk the substantive rights of the respondent. It is understandable that, where the applicant’s right of appeal has gone, court should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success.”
I agree with the approach of Nyland J, with respect, and her statements set out above.
I have read the whole of the sentencing remarks of Matheson J. I have included some of those remarks in relation to the applicant’s background. This clearly influenced the sentencing judge. The judge also took into account a psychiatric report from Dr Raeside and made a decision that the applicant’s prospect for rehabilitation was virtually non-existent. He regarded the applicant as a very bad candidate for parole.
The sentencing judge referred in his remarks to three decisions including R v Von Einem (1985) 38 SASR 207 at 218-221.
Mr Mead, for Mr Fyfe, argued that the reference to Vom Einem must be looked at in light of the subsequent decision in the High Court in Inge v R (1999) 73 ALJR 1563. His point is that the Court of Criminal Appeal was required to reconsider some earlier sentences where persons had been sentenced according to the principle enunciated in Von Einem. Mr Mead submitted that the learned judge in sentencing, by referring to Von Einem, was relying on what he called the ‘Von Einem principle’, and because that error has now been corrected by the High Court, the extension of time should be granted to allow this appeal out of time so the sentence could be looked at to see whether it may have been influenced by that error.
Ms Chapman for the DPP argued that the reference to Von Einem’s case is merely in the context of a discussion of non-parole periods in the case of categorising the crime as being of the most serious category. King CJ in Von Einem at 218-221 considered various matters relevant to the fixing of a non-parole period. Within these pages there is a reference at the bottom of page 220 specifically to that part of the reasoning of King CJ which was later overturned by the High Court in Inge v R.
I believe that it is a very long bow indeed to use the general reference of the Von Einem decision to suggest that this should mean that leave to appeal should be granted. I agree with the submission made by Ms Chapman that there is nothing to suggest that the “Von Einem factor” was applied. As I have already indicated, the applicant here was 34 years of age at the time of sentence and therefore, in my view, the offender could not be regarded as a youthful offender.
This was a very serious offence. The sentencing judge said it was premeditated, there was no remorse or contrition and there was virtually a non-existent prospect of rehabilitation. In those circumstances the need to protect the community, and in this case in particular the prison community, from the applicant must have been paramount as was put by Ms Chapman.
Having regard to his background already set out by me, the sentencing judge was faced with someone with a background of extreme violence which required consideration of the need for personal deterrence as well as the need for general protection of the prison community in particular. The account set out by Matheson J at [4] of these reasons shows a wanton disregard for the safety and wellbeing of other prisoners and those in authority.
It seems to me that the learned sentencing judge has dealt with the principle of totality without having mentioned that word specifically. His Honour was clearly aware of the existing non-parole period and the date of its expiry, and had this in mind when fixing the new non-parole period.
In summary therefore, I find on the tests set out in R v Bartle:
1the length of the delay in seeking leave to appeal is such that it requires a persuasive explanation;
2no persuasive application has been offered;
3there would be an adverse effect upon the administration of justice;
4the respondent has a right to retain its judgment; and finally,
5there are no grounds upon which the appeal could succeed, and it is not a case where there is even some prospects of success. Therefore, in my view, there is no possibility of any miscarriage of justice.
For the reasons given, leave to appeal is refused on all grounds.