DPP v Bakewell - [2007] NTSC 51

Director of Public Prosecutions v Bakewell [2007] NTSC 51
PARTIES:DIRECTOR OF PUBLIC PROSECUTIONS
v

BAKEWELL, Jonathan Peter

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:8815904
DELIVERED:  16 October 2007
HEARING DATES:  11 October 2007
JUDGMENT OF:  SOUTHWOOD J
CATCHWORDS:

CRIMINAL LAW – Sentencing – Sentencing (Crime of Murder) Parole Reform Act 2003 (NT) - application by Director of Public Prosecutions pursuant to s 19(3) – provision for Supreme Court to revoke non-parole period and fix longer period or refuse to fix any period – application allowed - non-parole period revoked – fix longer non-parole period.
Sentencing (Crime of Murder) Parole Reform Act 2003 (NT)
Prisoners (Interstate Transfer) Act 1983 (NT)

REPRESENTATION:
Counsel:
Applicant:M Grant QC, S Brownhill
Respondent:  M Hunter
Solicitors:
Applicant:Office of the Director of Public Prosecutions
Respondent:  Robert Welfare
Judgment category classification:    B
Judgment ID Number:  Sou0752
Number of pages:  15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Director of Public Prosecutions v Bakewell [2007] NTSC 51

No. 8815904
BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

AND:

BAKEWELL, Jonathan Peter

Respondent

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 16 October 2007)
Introduction

This is an application under s 19 of the Sentencing (Crime of Murder) and Parole Reform Act (NT) (the Act). The application is made in the following circumstances.
On 10 May 1989 Jonathan Peter Bakewell pleaded guilty to the crime of unlawfully assaulting Ms Anne Marie Culleton with intent to have carnal knowledge of her and thereby had carnal knowledge of her. On 17 May 1989 a jury unanimously convicted Mr Bakewell of the murder of Ms Anne Maree Culleton.
On 26 May 1989 Kearney J sentenced Mr Bakewell to imprisonment for life for the crime of murder, to imprisonment for ten years for the crime of rape, to imprisonment for four years for the crime of unlawfully entering a dwelling house and to imprisonment for one year for the crime of stealing. The court ordered that the sentences of imprisonment be served concurrently. Kearney J did not fix a non-parole period for the sentence of imprisonment for life for the crime of murder. He did not have power to do so.
On 11 February 2004 the Act commenced. Under s 18(a) of the Act the sentences of imprisonment for life of all prisoners serving sentences for a single conviction for the crime of murder were taken to include a non-parole period of 20 years imprisonment. The non-parole period of 20 years was subject to the Director of Public Prosecutions making an application to the court under s 19 of the Act for orders that the non-parole period of 20 years be revoked and either a longer non-parole period be fixed or the court refuse to fix a non-parole period.
As a result of the enactment of s 18 of the Act as at 11 February 2004 Mr Bakewell’s sentence of imprisonment for life for the crime of…

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 DPP v Bakewell

Details

AGLC: Director of Public Prosecutions v Bakewell [2007] NTSC 51
Case: [2007] NTSC 51
Decision Date: 16 October 2007

CaseChat Overview and Summary

In the case of DPP v Bakewell, the applicant, the Director of Public Prosecutions, sought to increase the non-parole period for the defendant, Mr Bakewell, who was serving a life sentence for murder. The case was heard by the Supreme Court of the Northern Territory, which has the authority to alter non-parole periods under the Parole Reform Act 2003 (NT). The central issue before the court was whether the original non-parole period of 20 years was appropriate, considering the nature of the crime and Mr Bakewell's conduct during his imprisonment.

The court had to determine whether the original non-parole period was sufficient given the severity of Mr Bakewell’s crime and his subsequent behaviour in prison. Mr Bakewell had committed a brutal and premeditated murder, breaking into the victim's home with the intent to have non-consensual sexual intercourse. Despite his violent actions, the court noted that Mr Bakewell did not intend to kill or cause grievous bodily harm. His remorse and efforts towards rehabilitation, including participation in a sexual behaviour clinic, were also considered. The court found that while the crime was heinous, Mr Bakewell’s efforts at rehabilitation and his lack of intent to kill warranted a reassessment of the non-parole period.

The court concluded that the original 20-year non-parole period was inadequate in light of the crime’s severity and Mr Bakewell's partial reformation. The court revoked the existing non-parole period and set a new non-parole period of 25 years, backdated to the date of the offence. This decision reflects a balance between the need for punishment and the potential for rehabilitation.

Mr Bakewell's non-parole period of 20 years was revoked and replaced with a new non-parole period of 25 years, backdated to 27 February 1988.

Orders

Orders of the court

1. The parole period of 20 years which under s 18(a) of the Act is deemed to be part of Mr Bakewell’s sentence of imprisonment for life for the crime of murder is revoked;

2. I fix a non-parole period of 25 years as part Mr Bakewell’s sentence of imprisonment for life for the crime of murder. The non-parole period is backdated to 27 February 1988.

Background

Background to the litigation

Mr Bakewell had a criminal record before he committed the crime of murder. When he was 18 years of age he was charged with robbery in Adelaide. He ran away, finally returning many years later when he surrendered himself to that charge. The facts The facts of Mr Bakewell’s offending were as follows. Anne Marie Culleton was an attractive young woman. She met her death at Mr Bakewell’s hands in the very early hours of Tuesday 23 February 1988. At the time of her death she was 20 years of age. She had been living alone at flat number 1 at 123 Playford Street, Fannie Bay, for five and a half weeks. Mr Bakewell had been living with two others in flat 2 at 123 Playford Street, Fannie Bay, for a period of time. At 9.00 am on 22 February 1988 he vacated unit 2 because he could not afford to pay the rent. He returned alone to the flat late at night on the same day because he could find nowhere else to sleep on a bed. When Mr Bakewell returned to the flat Ms Culleton was asleep in the adjoining flat. Mr Bakewell was aware that she lived in that flat. He decided to have sexual intercourse with her and he broke into her flat by putting his shoulder to the locked back door until the door burst open. He broke into the flat intending to assault Ms Culleton and to forcibly have sexual intercourse with her. After Mr Bakewell broke into Ms Culleton’s flat he went straight to the main bedroom. He found that Ms Culleton was awake and he attacked her. Ms Culleton got up from her bed and she screamed when he attacked her. Mr Bakewell struggled with Ms Culleton and he put his hand over her mouth to stifle her screams. He then dragged her to the second bedroom where he put her down on one of the single beds. Mr Bakewell then pulled her underpants off and he dropped off his own trousers. To stop Ms Culleton screaming Mr Bakewell had his hand over her mouth. However, she continued to scream and to resist Mr Bakewell by wriggling and slipping out from under him. As a result Mr Bakewell moved his hand to her throat and he squeezed her windpipe. At the same time he told her to shut up. Mr Bakewell let go of Ms Culleton’s windpipe but she started to scream again. He reapplied the pressure to her windpipe with his hand until she was gasping for air. This went on three or four times as she continued to scream when he released the pressure on her windpipe. At the same time he was attempting to have sexual intercourse with her. He found that his penis was in her bottom. He then withdrew it. Ms Culleton continued to wriggle and scream. Mr Bakewell then tore off the corner of the sheet he was lying on and he tied it around her throat with a double knot. His intention in doing that was not to kill her or to do grievous harm. It was to stop her screaming so that he could safely continue with the act of unlawful sexual intercourse. The ligature applied to Ms Culleton’s neck stopped her screaming. It also effectively stopped her resistance to Mr Bakewell because she could no longer breathe very well. She had to take long slow breaths. Her energies were directed to trying to breathe instead of resisting Mr Bakewell. Mr Bakewell observed Ms Culleton breathing in this fashion. He had sexual intercourse with her as she lay on the bed in that condition.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In a report dated 8 September 2007 Ms Nisyrios, a Senior Social Worker with the Department of Correctional Services in South Australia and Mr Michael Burvill, Manager of Rehabilitation Programs with the Department of Correctional Services in South Australia, stated as follows:On 7 September 2007 Mr Bakewell successfully completed the last required component of the [Sexual Behaviour Clinic prison based] program; however he has continued attending the SBC program on a voluntary basis while remaining in the Yatala Labour Prison. When Mr Bakewell attends the SBC Group he is an active participant. He has engaged in all modules, required, these being – the Risk Factors component; the Autobiography exercise; Cognitive Distortions and Emotion Management Strategies; Victim Empathy; Intimacy Relationships and Social Functioning; and, Healthy Sexual Functioning. Mr Bakewell continues to participate in group discussions in a respectful manner, and support other group members with their learning and development. He also effectively apples the program material to his own life, and has been successful in completing homework tasks efficiently and in a detailed manner, despite indicating at ties that his potential medical condition of multiple sclerosis has negatively impacted on his ability to focus on written work. To his further credit, Mr Bakewell has demonstrated his capacity to reflect on past offending behaviour, and identify current risk factors, which he appears to continue top monitor effectively.Conclusion Mr Bakewell’s offending was extremely serious. What he did was abhorrent. He broke into a young woman’s flat at night while she was present in the dwelling with intention of having unlawful sexual intercourse with her without her consent and he forcibly had sexual intercourse with her in a manner that resulted in her death. Prior to her death Ms Culleton had to endure a cruel and terrifying ordeal. I find beyond reasonable doubt that the act or omission that caused Ms Culleton’s death was part of a course of conduct by the prisoner that included conduct before the victim's death that would have constituted a sexual offence against the victim. The objective seriousness of Mr Bakewell’s offending is qualified by the facts that he did not intend to kill Ms Culleton and he tried to revive her. Nor did Mr Bakewell intend to cause grievous harm. The objective seriousness of the offending is also qualified by the facts that apart from the piece of sheet no weapons were involved in the attack on Ms Culleton and the prisoner did not mutilate her body. On the subjective side the information before the court shows that Mr Bakewell has worked hard at attempting to reform himself while he has been in prison. He has been allowed into the community on conditional licence for extended periods and he has demonstrated that the prospects of him being successfully re-integrated into the community are good. Mr Bakewell admits that he is responsible for the crimes that he committed and he is remorseful for his crimes. He is cognitively and effectively able to express empathy towards his victim and the risk of his re-offending has been significantly reduced.

Ratio Decidendi

Legal Principle Established

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