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 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
The appellant’s 20 year non-parole period fixed in 2004 through the operation of s 18 expired in February 2008. By application dated 25 June 2007, the Director applied for an order revoking that 20 year non-parole period and fixing a non-parole period of 25 years. The application was based upon s 19(3)(b) because the appellant’s act that caused the victim’s death was part of a course of conduct that constituted a sexual offence against the victim.
The Judge hearing the application was of the view that he was required by s 19(3) to fix a non-parole period of not less than 25 years. His Honour reached that view because s 19(3) directs that if any of the circumstances specified in s 19(3) existed at the time of the murder, the Court “must” fix a non-parole period of 25 years. The appellant contended that the discretion conferred by s 19(1)(b) to dismiss the application is not constrained by the mandatory direction contained in s 19(3). The direction found in s 19(3) only has effect if the Court first determines, in its unfettered discretion, not to dismiss the application and to revoke the period fixed by s 18.
New Sentencing Regime
The operation of the transitional provisions must be considered in the context of the new sentencing regime introduced by the Act in 2004. The principal feature of the amendments introduced to the Sentencing Act is the entirely new scheme providing 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.
Section 53A of the Sentencing Act requires that for a single crime of murder, not accompanied by circumstances specified in s 53A(1)(b), the Court must fix “a standard non-parole period of 20 years”. The Court is empowered to fix a shorter non-parole period in “exceptional circumstances” and to fix a longer non-parole period or refuse to fix a non-parole period if prescribed conditions are fulfilled.
Section 53A(1)(b) of the Sentencing Act directs the Court to fix a non-parole period of at least 25 years in specified circumstances. Power exists either to fix a period longer than 25 years or to refuse to fix a non-parole period, but if a specified circumstance exists there is no power to fix a period less than 25 years.
The circumstances specified in s 53A(1)(b) of the Sentencing Act are identical to those contained in s 19(3) of the Act. They include the circumstance that the “act or omission that caused the victim’s death was part of a course of conduct by the offender that included conduct, either before or after the victim’s death, that would have constituted a sexual offence against the victim.” If the appellant had been sentenced for the crime of murder after the commencement of the Act, because his act that caused death was accompanied by conduct amounting to a sexual offence against the victim, the Court would have been obliged to fix a non-parole period of at least 25 years.
This brief review of the new provisions of the Sentencing Act and the transitional provisions contained in the Act demonstrates that while prisoners sentenced before the commencement of the Act are not in entirely the same position as those sentenced after the Act commenced, the net effect of the transitional provisions is to “create a degree of equality between those who were serving sentences before the commencement of the Act and those who are sentenced after that commencement”: R v Leach (2004) 14 NTLR 44 at [26]. The principal features that lead to this conclusion are as follows:
· The periods of 20 and 25 years fixed by s 18 correspond with the periods that the Court is required to fix under s 53A of the Sentencing Act.
· If the Court revokes the period of 20 years fixed by s 18, the circumstances set out in s 19(3) which require that the Court fix a non-parole period of 25 years are identical to the circumstances now found in s 53A(3) of the Sentencing Act which, if they exist, require the Court to fix a non-parole period of 25 years in respect of sentences imposed after the commencement of the Act.
· The criteria by which a court determines under s 19 whether to fix a non-parole period longer than 20 or 25 years or to decline to fix a non-parole period are identical to the criteria to be applied in making those same decisions in respect of a prisoner sentenced after the commencement of the Act.
There is one point of significant difference. A prisoner sentenced after the commencement of the Act has the opportunity of persuading the Court to fix a non-parole period shorter than 20 years by satisfying the Court that exceptional circumstances exist: Sentencing Act s 53A(6) and (7). A prisoner in the position of the appellant is unable to make any application in respect of the period of 20 or 25 years fixed by s 18 of the Act and, on application by the Director of Public Prosecutions, the Court does not possess the power to reduce the period fixed by s 18.
Construction of Section 19
The appellant advanced the following propositions in support of a construction that did not place constraints on the discretion of the Court to dismiss an application by the Director under the transitional provisions:
· Section 19(1) is the leading provision in s 19 and s 19(1)(b) confers upon the Court an unfettered discretion to dismiss the application by the Director.
· The direction in s 19(3) that the Court “must” fix a non-parole period of 25 years if circumstances set out in subs(3) are found to exist only has effect if the Court, in the exercise of the unconstrained discretion, determines not to dismiss the application and grants the application to revoke the period fixed by s 18.
· This construction is supported by the observations of Gleeson CJ in Leach v The Queen (2007) 81 ALJR 598 at [14] and [15]:
“[14] Section 19 confers upon the Supreme Court a power to make an order which substitutes a discretionary judicial decision for the otherwise mandatory effect of s 18. The discretion, like the discretion conferred by certain provisions of s 53A, is not at large. It is confined by statutory prescriptions which, in a number of respects, modify the principles according to which a judge would otherwise fix a non-parole period. Subsection (3) of s 19, for example, requires that, if the victim of a murder was a police officer, and the death occurred while the officer was carrying out his or her duties, the Court must fix a non-parole period of 25 years, subject to subss (4) and (5). Subsection (4) empowers the Court, in such a case, to fix a non-parole period of more than 25 years. Subsection (5) empowers the Court to refuse to fix any non-parole period. Subsection (3), as qualified by subss (4) and (5), only comes into operation if the Court, on the application of the Director of Public Prosecutions, decides to revoke the non-parole period fixed by s 18. Sections 18 and 19 present a patchwork of legislative prescription and judicial discretion. The exercise of judicial discretion is constrained by legislative direction.
…
[15] The Director of Public Prosecutions will make an application under s 19 where it is considered that there may be a case for lengthening the non-parole period fixed by s 18. The Court may dismiss the application, in which event s 18 will continue to apply. If the application succeeds, and the Court revokes the non-parole period fixed by s 18, it does so for the purpose either of fixing a longer non-parole period or of refusing to fix any non-parole period” (my emphasis).
· The following passage in the joint judgment of Gummow, Hayne, Heydon and Crennan JJ also supports such a construction:
[“35] The relevant aspects of the provisions made by the 2003 Act may be described as follows. First, if no application was made by the Director of Public Prosecutions, the sentence of a person, who at the commencement of the 2003 Act was serving a sentence of imprisonment for life for murder, was taken to include a non-parole period of either 20 years or 25 years. Second, if the Director of Public Prosecutions made an application under s 19, there could be one of three outcomes: the Court could revoke the non-parole period fixed by s 18 and fix a longer period; the Court could revoke the non-parole period fixed by s 18 and refuse to fix any non-parole period; or the Court could dismiss the Director’s application. Dismissing the Director’s application would leave the statutorily determined non-parole period (in this case the period of 25 years) unaffected. The statutory non-parole period could be revoked, and a longer non-parole period fixed, only if the conditions described in s 19(4) were met. The Court could revoke the statutory non-parole period and refuse to fix a non-parole period, with the consequence that the prisoner would be imprisoned for life, only if the conditions described in s 19(5) were met.”
The respondent submitted that the legislative scheme and structure of the transitional provisions leaves no room for the view that the discretion to dismiss an application to revoke a non-parole period fixed by s 18 is unfettered by the mandatory direction in s 19(3). Just as the word “may” in s 19(4) and (5) is used to confer a power which the Court is obliged to exercise upon being satisfied of the criteria described in subss (4) and (5), so the word “may” is used in the same way in s 19(1): Leach v The Queen (2007) 81 ALRJ 598 at [38]; Lugg v Wright [1941] SASR 106. Counsel also relied upon the decisions of this Court in Leach v R (2005) 16 NTLR 117 and Director of Public Prosecutions v Ahwan (2005) 17 NTLR 1, together with the following observation of Gleeson CJ in Leach [17]:
“[17] Leaving to one side cases within section 19(3), a decision not to dismiss an application under section 19 will be made if the court is at least satisfied, in terms of subs (4), that a longer non-parole period than fixed by section 18 is warranted.”
As was pointed out during submissions, the interrelationship between s 19(1) and s 19(3) was not the subject of the consideration in the authorities to which I have referred. Those decisions, including the particular passages in the judgments relied upon by the parties, are of limited assistance. In particular, para [38] of the joint judgment in Leach is a passage concerned with the construction of s 19(5). That power is enlivened after the Court revokes the period fixed by s 18 and if the Court is satisfied of the criteria specified in subs (5). It was in that context that the joint judgment observed that the word “may” in s 19(5) is used, “not to give a discretion, but to confer a power which is to be exercised upon the Court being satisfied of the matters described in the provision”. Those remarks were not addressed to the interaction between the discretion conferred by s 19(1) and the direction contained in s 19(3).
Similarly, the terms of the legislation under consideration in Lugg v Wright [1941] SASR 106 were quite different from s 19(1). The particular provision directed that if the Court was satisfied of specified matters the Court “may” make an order. Section 19(1)(b) does not state that, if satisfied of matters set out in s 19 or some other provision, the Court “may” dismiss the application.
The respondent drew attention to the Second Reading Speech of the Attorney-General when introducing the Act. After referring to the effect of the transitional provisions automatically applying 20 and 25 years non-parole periods, the Attorney-General said:
“However, once again, we recognise not all cases may be the same. Consequently, the Director of Public Prosecutions will be empowered to make application to the Court for cases which deserve a greater non-parole period or, indeed, should have a non-parole period refused and, therefore, a natural life sentence confirmed. In considering these cases, the Bill requires the Court to fix a non-parole period of 25 years in cases involving circumstances of aggravation, which I have already outlined, in respect of new cases brought before the courts.”
The reference by the Attorney-General to circumstances of aggravation was a reference to those circumstances now found in s53A(3) of the Sentencing Act and s 19(3) of the Act.

Section 62B of the Interpretation Act provides that material extrinsic to the Act may be considered if it is capable of assisting in ascertaining the meaning of the provision under consideration, but only when the meaning is ambiguous or obscure or the ordinary meaning, assessed in its context in the Act and the purpose of the Act, “leads to a result that is manifestly absurd or is unreasonable”. In my view the provision is not ambiguous or obscure and the ordinary meaning does not lead to a manifestly absurd or unreasonable result. However, even having regard to the Second Reading Speech, it is necessary to bear in mind the observations of Mason CJ and Wilson and Dawson JJ in their joint judgment in Re Bolton ex parte Beane (1987) 162 CLR 514 at 518:
“That Speech quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law” (my emphasis).
Significantly, the discretion to dismiss an application conferred by s 19(1)(b) is not expressed to be subject to any other provision in the Act. If the Legislature had intended that the discretion be constrained by subs (3), it could have followed the form of direction now found in s 53A of the Sentencing Act by prefacing s 19(1) with the words “subject to this section”. No precondition to the exercise of the power to dismiss the Director’s application is specified and, unlike the powers conferred in subss (4) and (5) of s 19, the power conferred by s 19(1)(b) is not a power that “may” be exercised upon satisfaction that particular criteria have been established.
There is a further factor of significance. The legislative scheme created by the transitional provisions is not an entirely mandatory scheme. In particular, the scheme does not contain a mandatory direction that if satisfied of the existence of any matter specified in s 19(3), the Director must make an application to revoke the non-parole period fixed by s 18. Whatever policy or protocol the Director may adopt, the Legislature has chosen to confer an unfettered discretion upon the Director to determine whether a serving prisoner will be required to meet an application for an order revoking the period fixed by s 18 and fixing a longer period or refusing to fix a non-parole period. If the respondent is correct, where the circumstances specified in s 19(3) exist, ultimately the discretion whether to revoke the period fixed by s 18 rests with a statutory office holder. On the respondent’s construction, once the application is made and the criteria are found to exist, the Court has no discretion to refuse to revoke the non-parole period fixed by s 18 by dismissing the application. It is unlikely that the Legislature intended such a consequence.
The court is concerned with transitional provisions in a penal statute that have application only after a prisoner has served at least 20 years imprisonment. In that context, it would not be surprising if the Legislature intended to confer upon the court an unfettered discretion to determine whether the period fixed by s 18 should be revoked or the application dismissed. It is not difficult to envisage that over a period of 20 years incarceration circumstances might come into existence dictating that the interests of the community will best be served by declining to revoke the 20 year period fixed by s 18.
For these reasons, in my opinion the discretion to dismiss an application by the Director conferred in s 19(1)(b) is unfettered and not constrained by s 19(3). Similarly, it is not constrained by proof of the matters found in s 19(4) or (5). Of course, the discretion must be exercised judicially and the existence of circumstances specified in s 19(3), (4) or (5) will be significant matters to be considered in the exercise of the discretion conferred by s 19(1).
The sentencing Judge examined carefully and in detail the circumstances of the appellant’s offending and his progress towards rehabilitation during his 20 year period of incarceration. The appellant’s efforts in that regard have been quite remarkable. As I have said, his Honour determined that but for the operation of s 19(3) he would not have revoked the period of 20 years. Having considered the matter afresh, I agree with the conclusion reached by his Honour. The interests of the community are best served by permitting the 20 year non-parole period to stand thereby opening the way for consideration by the Parole Board of the appellant’s case for parole. The Crown did not suggest otherwise.
The appeal should be allowed and the order of the Judge set aside. In substitution for that order this Court should dismiss the Director’s application.
Thomas J:
I have read the reasons for judgment prepared by the Chief Justice. I agree with his reasons. I would allow the appeal and dismiss the Director’s application.
Riley J:
I agree with the Chief Justice.

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