R v Bakewell - [2022] SASC 39

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v BAKEWELL
[2022] SASC 39
Judgment of the Honourable Chief Justice Kourakis
21 April 2022
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - LIFE SENTENCE - REDETERMINATION OR SETTING OF MINIMUM TERM OR NON-PAROLE PERIOD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD
This is an application seeking an order to fix a non-parole period in respect of a sentence of life imprisonment. The Applicant was convicted in the Northern Territory Supreme Court of the offences of murder, aggravated sexual assault and unlawful entry of the dwelling house. The Applicant was sentenced for the offence of murder to life imprisonment on 26 May 1989. At the time, the Northern Territory Court had no power to fix a non-parole period.
In 2005 the Applicant was transferred to South Australia pursuant to the Prisoners (Interstate Transfer) Act 1982. Following amendments to the Correctional Services Act 1982 (SA) which conferred on the Parole Board the power to release on parole a prisoner serving a life sentence subject to a statutory review by a Commissioner, the Applicant was released on parole following a Parole Board resolution on 7 June 2016.
In October 2021 the Applicant returned to custody on a warrant issued by the Parole Board after having tested positive for cannabis and the Parole Board subsequently cancelled the Applicant’s release on parole.
Held, per Kourakis CJ: A non-parole period of six months to be fixed, to commence on 22 October 2021.
Prisoners (Interstate Transfer) Act 1982 ss 15, 27, 28; Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) (NT) ss 19, 19(3); Sentencing Act 2017 (SA) ss 47, 47(3); Correctional Services Act 1982 (SA) ss 67(6), 67(7), referred to.
Director of Public Prosecutions v Bakewell [2007] NTSC 51; R v Brady [2015] SASC 115; R v Fricker [2017] SASC 107, considered.

R v BAKEWELL
[2022] SASC 39
Criminal: Application

KOURAKIS CJ: This is an application by Jonathon Peter Bakewell made on 13 January 2022 pursuant to s 47(3) of the Sentencing Act 2017 (SA) (the Sentencing Act) for an order fixing a non-parole period in respect of a sentence of life imprisonment. The sentence of life imprisonment was imposed in the Supreme Court of the Northern Territory on 26 May 1989 on Mr Bakewell’s conviction of the offence of murder. A non-parole period of 20 years was fixed in 2004 by operation of s 19 of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) (the NT Act).
On 15 April 2005, Mr Bakewell was transferred to South Australia pursuant to s 15 of the Prisoners (Interstate Transfer) Act 1982 (the Prisoners Transfer Act). On his transfer by operation of ss 27 and 28 of the Prisoner Transfer Act, his life sentence and…

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 R v Bakewell

Details

AGLC: R v Bakewell [2022] SASC 39
Case: [2022] SASC 39
Decision Date: 21 April 2022

CaseChat Overview and Summary

In the case of R v Bakewell, the defendant was convicted of murder and subsequently breached parole conditions by using cannabis. The South Australian Court of Appeal was tasked with determining an appropriate non-parole period for the defendant. The primary legal issue revolved around the balance between deterrence and the defendant's prospects for rehabilitation. The court needed to weigh the seriousness of the original offences, the gravity of the parole breach, and the defendant's potential for rehabilitation against each other.

The Court of Appeal took into account the defendant's explanations for his parole breach, the lack of associated offending, and the likelihood of his continued rehabilitation. The Court acknowledged the importance of deterring the defendant and others from breaching parole, but it emphasised the greater importance of promoting rehabilitation. The Court also considered the defendant's expressed remorse and his belief that he could avoid future offending by abstaining from alcohol and drugs. The Court concluded that a non-parole period of six months would appropriately balance the need for deterrence and the defendant's rehabilitation prospects.

In light of the considerations outlined above, the Court of Appeal fixed a non-parole period of six months, commencing on 22 October 2021. The Court emphasised the importance of promoting the defendant's continued rehabilitation and the limited deterrence value of imposing a longer non-parole period in this case. The Court's decision reflects a balanced approach that takes into account both the seriousness of the original offences and the defendant's potential for rehabilitation.

Orders

Orders of the court

Held, per Kourakis CJ: A non-parole period of six months to be fixed, to commence on 22 October 2021.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am conscious of the need to deter others from breaching parole conditions but because of Mr Bakewell’s explanations, in the absence of any associated offending, little can be achieved in that respect of his case. Of greater relative importance is promoting Mr Bakewell’s continued rehabilitation by returning him to the accommodation which has been kept available for him.Conclusion I fix a non-parole period of six months commencing on 22 October 2021.

Ratio Decidendi

Legal Principle Established

The relevant considerations are:[4]· The prospects of rehabilitation on parole.· The gravity of the offences on which the offender was imprisoned and then paroled.· The gravity of the breaching offences on which the offender was imprisoned or the breach of the designated condition.· The need to deter the offender and others from commission of offences of the type with respect to which he was on parole and offences of the type that breached that parole, or the need to deter the offender and others from breaching a designated condition.· The need to deter the offender and others from breaching parole.[4] R v Fricker [2017] SASC 107, at [20].Consideration The failure of Mr Bakewell to comply with the condition of his parole which prohibits him from using cannabis is plainly enough concerning. I accept that Mr Bakewell has medical conditions and symptoms which are alleviated by his cannabis use. I accept, therefore, that he uses cannabis no more than several times a week for recreational and self-medication purposes. It is significant that notwithstanding the frequency of his use, Mr Bakewell has not relapsed into offending. The submissions made before Kearney J and the sentencing remarks of Kearney J give no indication that his use of cannabis before the offending, played any material part in it. However, I have been referred to the remarks of Southwood J in Director of Public Prosecutions v Bakewell:[5][26]A report from Mr Ré Acacio is in evidence. Mr Bakewell told Mr Ré Acacio that he believes that he was responsible for the crimes that he committed.Mr Bakewell said that he could have avoided the crimes if only he had stopped taking drugs and alcohol. He could keep himself from committing crimes by complete abstinence from alcohol and other drugs and by staying in his present relationship and starting a business. He told the psychologist that he is absolutely regretful for his offending because he not only ended the life of the victim of his crimes but he also stuffed up the lives of many other people. Mr Bakewell said that it was not in his nature to make anyone a victim. He said that he continues to have a hard time living with what he did. He said that although he has had no contact with those related to his victim he feels strongly that what he has done must have made their worlds fall apart and devastated them. It was not a good thing for him to live with the memory of the harm that he has caused.(underlining added)[5] Director of Public Prosecutions v Bakewell [2007] NTSC 51, at [26]. I do not read the underlined sentence to mean that Mr Bakewell expressed the view that the alcohol and drug intoxication in themselves made him violent and aggressive. In context, I take him to be referring to the lifestyle into which he had lapsed. The immediate following sentence is consistent with that understanding. In any event, Mr Bakewell referred to both alcohol and other drug use and it is the experience of the criminal courts of this State that alcohol is much more likely to disinhibit aggressive tendencies than cannabis.