R v FYFFE

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SENTENCE 1 HIS HONOUR: The offender, Stanley James Fyffe, was found guilty by the jury of the murder on 19 March 2000 at Silverwater of Stephen Anthony Moore. At the time of the death of the deceased he, the offender, his co-offender Anthony John Hore and a man I shall call X were prisoners serving their sentences at the Silverwater correctional facility. All were housed in B wing. 2 B wing is one of a number of free-standing brick buildings arranged more or less on a north-south axis. It is the most southerly building and its main entrance is on its north side, facing other blocks. To the south of its southern side is a small yard, bounded to the south by a wire mesh fence behind which are tennis courts and the southern perimeter wall of the complex. The southern side of the wing comprises two walls of equal length which join in the centre in a concave right angle. The wings formed by the walls make the yard a secluded place. Another feature which makes for its seclusion is a flat awning supported on posts and attached to the walls. It is triangular and fits into the corner where the walls meet. It covers only part of the yard. Although the windows of some cells overlook the yard they do not for the most part afford any view of events happening under the awning. 3 In March 2000 inmates used to use the yard for sporting exercises of various kinds. Balls would be thrown and bounced. There was a punching bag hanging on a hook secured to the underside of the awning. Access from the northern side of B wing to the yard at the southern side could be gained by walking round the wing on the eastern or on the western side. 4 The wing lies in a minimum security part of the complex and for the most part inmates housed in it, as well as those housed elsewhere in the complex, had the free run of the wing. They could visit each other's cells. 5 The deceased shared cell 75 with William Bond. The offender shared cell 70 with William Charlton. Hore occupied cell 72 alone. X shared cell 71 with another inmate. 6 At 1.30 pm or a little later on the day the deceased was murdered two inmates took a block of sandstone slightly larger than a football and weighing more than six kilograms from the front to the back of the wing. I am satisfied that they left it near to or in the place where the deceased was killed in preparation for the attack on him. As they transported the block they threw it back and forth between themselves as though it were a football. I am satisfied that they did so in order to divert suspicion from themselves by appearing to be involved in innocent play. 7 The witness who gave evidence about this event identified one of the men as X and said that another man, who had the rock, said to him - Come on, let's pass this like a football. 8 They began to pass it between themselves and as they did so they disappeared from sight round the back of B wing. The witness told the Court that he could not remember who the other man was. He was shown a copy of a statement he signed on 3 April 2000 in which he identified the other man as the offender. He said, however, that that had just been a guess. He was reminded of evidence he gave on oath before the magistrate identifying the man as the offender but responded by saying he had been assuming that it was he. 9 I have set out the details of his evidence because it was submitted on sentence that I should not conclude that the offender was one of those who took the sandstone block to the back of the wing. I reject the submission. I am satisfied that the witness correctly identified him and told the truth to the police and to the magistrate. His evidence before the jury, in which he affected to be unsure who the man was, was false. 10 Shortly before the deceased was murdered another inmate saw three men walking together towards B wing from the direction of C wing. When they arrived at B wing they separated. Two of them walked around the eastern side of the wing and went towards the back, out of sight. The other went into the wing and emerged some two minutes later with the deceased. They were walking very closely together and talking in a friendly manner. They walked around the western side of B wing towards the back. 11 Later on the same three men, but not the deceased, re-emerged from the back of the wing, walking along, talking, laughing and patting each other. They continued on towards C wing. Shortly afterwards the deceased was found and the alarm was raised. 12 The witness recognised the men but could not name them. He described them in a way that fitted the descriptions of the offender, Hore and X. 13 A further inmate occupied cell 57, which was on the first floor overlooking the yard at the rear of the wing. He was half-seated, half-lying on his bed with his back to the wall in which the window was mounted. His attention was drawn to three or four thudding noises coming from the yard. Each thud was followed by a sound he described as "weird". The noises were unlike those that normally came from the yard. He raised himself on his bed, looked out of the window and saw two men walking away from the direction of the awning. He recognised them as inmates he had seen in the wing. He identified the offender by the cell he occupied and by naming his cellmate. He gave a description consistent with the offender's appearance. He identified Hore. His evidence was impressive. The jury accepted it. 14 I am satisfied that one of the boots that Hore was then wearing was spattered with the deceased's blood. 15 The deceased's body was found lying in the yard under the awning. Near it were found the sandstone block and a half-brick, each bearing his blood. Hair adhered to the half-brick. Dr Hulewicz examined the body. There was no substantial injury to any part of the body other than the head. The hands, wrists and forearms bore abrasions that must have been sustained as the deceased tried to defend himself. There were minor abrasions and bruises to other parts of the body. Eighteen lacerations, abrasions and bruises were seen on the head. A triangular laceration to the forehead, three and a half centimetres by two and a half centimetres in size, was consistent with having been caused by a corner of the half-brick. The other injuries were consistent with having been caused by the sandstone block. 16 The injuries to the skull were of a kind ordinarily seen only when deceased persons have been injured by lateral skull impact in motor vehicle accidents or in falls from height. There was what Dr Hulewicz called a hinge fracture which passed horizontally from side to side across the base of the skull, from temporal bone to temporal bone, enabling the skull to be opened and closed. Several fracture lines radiated from that fracture into the front and the right of the skull. Two fracture lines extended from the great foramen into the right and left sides of the back of the skull. There was subdural haemorrhage over the base of the brain. The right lower jaw and the cheekbone were fractured. The left cheekbone was fractured. There was a comminuted fracture of the right side of the hard palate. 17 Dr Hulewicz thought that the injuries were caused either when the sandstone block was held and used to strike the deceased's head once or more than once or when it was dropped one or more times onto his head. 18 Photographs tendered in evidence show splashes of blood on the walls adjacent to the place where the deceased was killed. They show that at least one blow was delivered with great force after the deceased began bleeding. The splashes are low on the walls and show that the blood source was near ground level. This evidence and the evidence of what the inmate heard from cell 57 satisfies me that the sandstone block was dropped three or four times onto the head of the deceased as he lay on the concrete surface of the yard. I think that the thud that he heard was the sound of the block striking the skull of the deceased. The block would have rolled onto the concrete surface of the yard after hitting the skull, and the sound of its doing so may have been the sound the inmate could only describe as "weird". It is possible that before the block was dropped onto the deceased's head he was felled by a blow with the half-brick. 19 The offender entered into the compact to kill the deceased at the latest by the time he and X took the sandstone block to the back of the wing. 20 There is no evidence of who used the half-brick or of who dropped the sandstone block onto the deceased's head. All that can be said about the offender is that he was present with the intention that the deceased should be killed and participated by either doing the act which caused death or by assisting in its commission or by encouraging another or others to do so. 21 Shortly before he murdered the deceased the offender told his cellmate that he did not want the deceased in their cell because he was a dog. A dog in prison parlance is an inmate who informs on another prisoner by providing a statement to the police, giving evidence in court and the like. Such informers are held in low esteem by other inmates and are likely on that account to find themselves in personal danger. However, the evidence raises no more than a suspicion that the offender killed the deceased because he was an informer. There is no satisfactory evidence that explains why he acted as he did. 22 S 19A Crimes Act provides that a person who commits the crime of murder is liable to imprisonment for life and that a person sentenced to imprisonment for life for the crime of murder is to serve that sentence for the term of the person's natural life. The section also preserves the Court's discretion to impose a sentence of imprisonment for a specified term. 23 Subs 61(1) Crimes (Sentencing Procedure) Act provides that a court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the Court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. By subs (3) nothing in subs (1) affects the discretion of the Court that arises under subs 21(1) to impose instead a sentence of imprisonment for a specified term. It is now settled that notwithstanding the terms of subs 61(1) the Court retains a discretion in any case whether to impose a sentence of imprisonment for life or for a specified term: R v Harris [2000] NSWCCA 469. 24 The offender was born on 30 September 1966. He was thirty-three years old at the time of the murder and is now thirty-five years old. He was first before a children's court at thirteen years of age for car stealing. Since then he has committed many such offences and has served a number of prison terms. He has a bad record of traffic offences, many of them involving alcohol. He has only one conviction for assault. In 1993 he was sentenced to serve a period of imprisonment for interfering with a witness. At the time of the murder he was serving a number of sentences which were due to expire on 15 June 2001. He was later sentenced to serve a further term which expired on 11 April 2002. 25 The offender did not give evidence on sentence. A report of Anna Robilliard, psychologist, was tendered. One purpose was to inform the Court of things that only the offender could say. I regard it as partially reliable in that respect. His mother left the home shortly after his birth and he never really knew her. He was brought up by his father and a step-mother. His father was a drunkard who flogged him. He ran away from home at twelve years of age and began to commit the offences for which he was brought before the Children's Court. He spent time in boys' homes. He told Ms Robilliard that when he was sixteen years old his parents falsely charged him with theft because he would not assist them move to Queensland. He was sent to gaol for six months. 26 He also told Ms Robilliard that he had generally worked as a scaffolder and rigger and was always able to get jobs when he wanted them. He said that in 1998 he suffered a serious accident at work, injuring his back. He had had surgery in 1999 and had not been able to return to work. I regard his claim to be unable to work as surprising in view of the way he handled the sandstone block. 27 He has had a number of relationships with women and has a daughter and a son. He wishes to maintain a relationship he formed with the mother of his son. 28 He says that he has given up the heavy drinking that so affected his life until 1998. He has smoked some cannabis and has become addicted to heroin. He says that he took these drugs in order to seek relief from back pain. 29 Ms Robilliard administered psychological tests. She concluded that he was soundly intelligent and that his school performance and subsequent work history did not reflect his true level of cognitive ability. She thought him capable of improving his education at technical or TAFE level. She thought that the personality test results demonstrated markedly paranoid personality attributes and a depressive and self-focus predisposition. At a reactive level he was highly anxious, hypervigilant, suspicious and wary. 30 The deprivation and cruelty which attended the offender's childhood and teenage years were likely to lead to criminal behaviour and to the use of and perhaps addiction to alcohol and other drugs. They make much of the offender's criminal history understandable. They were also likely to reduce his sensitivity to violence and it is surprising that the offences he committed before the present murder, though many, have not been characterised by violent acts. According to his record he has been convicted and imprisoned once for assault, according to Ms Robilliard twice. 31 However, none of the events of his life explains why he might have committed this offence. No alcohol or other drug was involved. There was no confrontation, no flaring of temper, no spontaneity. 32 The offender continues to deny the offence and is without remorse. 33 A serious feature of the murder is that it was carried out in a prison. It was a minimum security prison and the offender abused the freedom that his classification in that environment afforded him. It is particularly important that courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best they may are entitled to as much protection as the courts can afford them. 34 The murder of the deceased was an execution of the coolest kind. It was carefully planned. The deceased, a man of small build, was lured under some pretext to the place of execution. He was there swiftly and efficiently put down by three strong men. His injuries were horrific. The murder was an act of great depravity. The fact that it is not possible to say precisely what part the offender played does not remove his crime from the worst category of offences of murder. 35 There are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can be met only through the imposition of the maximum penalty. In such cases it is necessary to disregard what might otherwise be persuasive subjective circumstances, so that they play no part in the decision of the Court. In my opinion this is such a case because the wickedness of the offender's crime was so great. 36 In my opinion the offender's level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only through the imposition of a sentence of imprisonment for life. 37 Stanley James Fyffe, you are sentenced to imprisonment for life. Your sentence will be taken to have commenced on 12 April 2002. **********

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