Bakewell v The Queen - [2008] NTCCA 3

Bakewell v The Queen [2008] NTCCA 3
PARTIES:BAKEWELL, Jonathan Peter

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 17 of 2007 (8815904)
DELIVERED:  7 March 2008
HEARING DATES:  28 February 2008
JUDGMENT OF:  MARTIN (BR) CJ, THOMAS AND RILEY JJ
APPEAL FROM:  SOUTHWOOD J
CATCHWORDS:

CRIMINAL LAW – APPEAL
Appeal against sentence – life imprisonment – transitional provisions fixing non-parole period – application to revoke non-parole period and fix longer period – discretion – appeal allowed.
Sentencing Act 1995 (NT), s 53A, s 53A(1)(b), s 53A(3), s 53A(6) and s 53A(7); Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), s 18, s 19(1), s 19(1)(b), s 19(2), s 19(3), s 19(3)(b), s 19(4), and s 19(5); Interpretation Act 1978 (NT), s 62B.
R v Leach (2004) 14 NTLR 44, applied.
Lugg v Wright [1941] SASR 106; Director of Public Prosecutions v Ahwan (2005) 17 NTLR 1, distinguished.
Leach v The Queen (2007) 81 ALJR 598; Leach v R (2005) 16 NTLR 117; Re Bolton ex parte Beane (1987) 162 CLR 514, followed.
REPRESENTATION:
Counsel:
Appellant:C McDonald QC and I Read SC
Respondent:  M Grant QC
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:      A
Judgment ID Number:  Mar0803
Number of pages:  16

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Bakewell v The Queen [2008] NTCCA 3

No. CA 17 of 2007 (8815904)
BETWEEN:

JONATHAN PETER BAKEWELL

Appellant

AND:

THE QUEEN

Respondent

CORAM: MARTIN (BR) CJ, THOMAS AND RILEY JJ
REASONS FOR JUDGMENT
(Delivered 7 March 2008)
Martin (BR) CJ:
Introduction

The appellant appeals against the decision of a Judge revoking a non-parole period of 20 years and substituting a period of 25 years. In issue is the operation of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (“the Act”) which came into operation in 2004.
For the reasons that follow, in my view the learned Judge erred in concluding that he had no choice but to revoke the period of 20 years and fix a non-parole period of 25 years. As his Honour determined that but for s 19(3) of the Act he would not have revoked the period of 20 years, this Court should allow the appeal, set aside the period of 25 years and make orders with the effect that the period of 20 years stands.
Background Facts
On 26 May 1989 the appellant was sentenced to a number of terms of imprisonment commencing 27 February 1988 for the following crimes:
·     Murder – life imprisonment.
·     Unlawfully assaulting the deceased with intent to have carnal knowledge of her and thereby having carnal knowledge of her – 10 years.
·     Unlawfully entering a dwelling house – 4 years.
·     Stealing – one year.
The Court ordered that the sentences of imprisonment be served concurrently. In…

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 Bakewell v The Queen

Details

AGLC: Bakewell v The Queen [2008] NTCCA 3
Case: [2008] NTCCA 3
Decision Date: 7 March 2008

CaseChat Overview and Summary

The appeal concerned the appellant, Bakewell, who was sentenced in 1989 to life imprisonment for murder, along with other concurrent sentences. At that time, the court lacked the power to fix a non-parole period for life sentences, with release being contingent on executive clemency. The dispute arose following the commencement of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) in 2004, which introduced provisions for fixing non-parole periods for life sentences. The Director of Public Prosecutions applied to revoke the automatically fixed non-parole period and impose a longer one. The appeal was heard by the Supreme Court of the Northern Territory, comprising Martin (BR) CJ, Thomas and Riley JJ.

The central legal issue before the Court was the proper interpretation and application of the transitional provisions within the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), specifically sections 18 and 19. The Court had to determine whether the learned Judge erred in concluding that section 19(3) of the Act mandated the revocation of the automatically fixed 20-year non-parole period and the imposition of a 25-year period, or if the Judge retained discretion in this regard. This involved considering the interplay between the automatic fixing of a non-parole period under section 18 and the circumstances under which the Director of Public Prosecutions could apply for a longer period under section 19.

The Court reasoned that the learned Judge had misconstrued the effect of section 19(3). While section 19(3) outlines circumstances in which the Supreme Court *must* fix a 25-year non-parole period, it does not operate to automatically revoke a period fixed under section 18. Instead, it provides grounds for the Director's application to succeed. The Court held that the Judge's finding that he had no choice but to revoke the 20-year period was an error, as section 19(3) did not compel this outcome in the absence of the Director's successful application. The Court applied the principle that statutory interpretation should favour a construction that preserves judicial discretion where not expressly removed.

Consequently, the appeal was allowed. The Court set aside the order fixing a 25-year non-parole period and made orders to reinstate the original 20-year non-parole period that had been automatically fixed by section 18 of the Act.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, in my view the learned Judge erred in concluding that he had no choice but to revoke the period of 20 years and fix a non-parole period of 25 years. As his Honour determined that but for s 19(3) of the Act he would not have revoked the period of 20 years, this Court should allow the appeal, set aside the period of 25 years and make orders with the effect that the period of 20 years stands.Background Facts On 26 May 1989 the appellant was sentenced to a number of terms of imprisonment commencing 27 February 1988 for the following crimes:· Murder – life imprisonment.· Unlawfully assaulting the deceased with intent to have carnal knowledge of her and thereby having carnal knowledge of her – 10 years.· Unlawfully entering a dwelling house – 4 years.· Stealing – one year. The Court ordered that the sentences of imprisonment be served concurrently. In 1989 the Court did not have power to fix a non-parole period in respect of the sentence of life imprisonment. Until 2004, the only prospect of release for a person in the position of the appellant was the exercise of executive clemency. Transitional Provisions The Act came into operation on 11 February 2004 and amended the Sentencing Act to provide for the fixing of non-parole periods in respect of sentences of life imprisonment imposed for crimes of murder after the commencement of the Act. The Act contains transitional provisions which deal with prisoners in the position of the appellant who, at the time the Act commenced operation in 2004, were serving sentences of life imprisonment without non-parole periods First, s 18 of the Act directs that subject to other provisions, a life sentence for a single crime of murder is taken to include a non-parole period of 20 years. If the prisoner is serving life sentences for two or more crimes of murder, each of the sentences is taken to include a non-parole period of 25 years. Such non-parole periods are deemed to have commenced on the date on which the sentence of life imprisonment commenced. Pursuant to s 18, when the Act commenced operation the appellant’s life sentence was taken to include a non-parole period of 20 years commencing 27 February 1988. Secondly, provision is made for revoking the periods automatically fixed by s 18. While a prisoner in respect of whose life sentence a non-parole period has automatically been fixed under s 18 is not able to apply for the fixing of a different period, the Director of Public Prosecutions may apply to the Court for an order revoking the period fixed by s 18. Section 19(2) requires the Director to make the application not earlier than 12 months before the first 20 years of the prisoner’s sentence is due to expire. On an application by the Director, the Court is empowered by s 19 to dismiss the application or to revoke the period fixed by s 18 and either fix a longer period or refuse to fix a non-parole period. The interaction between s 19(1) and s 19(3) is at the heart of issues raised in this appeal. Section 19 is as follows:“19 DPP may apply for longer or no non-parole period (1) The Supreme Court may, on the application of the Director of Public Prosecutions – (a)revoke the non-parole period fixed by section 18 in respect of the prisoner and do one of the following: (i)fix a longer non-parole period in accordance with subsection (3) or (4); (ii)refuse to fix a non-parole period in accordance with subsection (5); or(b) dismiss the application.(2) The Director of Public Prosecutions must make the application – (a)not earlier than 12 months before the first 20 years of the prisoner's sentence is due to expire; or (b)if, at the commencement of this Act, that period has expired – within 6 months after that commencement.(3) Subject to subsections (4) and (5), the Supreme Court must fix a non-parole period of 25 years if any of the following circumstances apply in relation to the crime of murder for which the prisoner is imprisoned: (a)the victim's occupation was police officer, emergency services worker, correctional services officer, judicial officer, health professional, teacher, community worker or other occupation involving the performance of a public function or the provision of a community service and the act or omission that caused the victim's death occurred while the victim was carrying out the duties of his or her occupation or for a reason otherwise connected with his or her occupation; (b)the act or omission that caused the victim's death was part of a course of conduct by the prisoner that included conduct, either before or after the victim's death, that would have constituted a sexual offence against the victim; (c)the victim was under 18 years of age at the time of the act or omission that caused the victim's death; (d)at the time the prisoner was convicted of the offence, the prisoner had one or more previous convictions for the crime of murder or manslaughter.(4) The Supreme Court may fix a non-parole period that is longer than a non-parole period referred to in section 18 or subsection (3) if satisfied that, because of any objective or subjective factors affecting the relative seriousness of the offence, a longer non-parole period is warranted. (5) The Supreme Court may refuse to fix a non-parole period if satisfied the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole.” Director’s Application

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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