Bakewell v R 16 January 2008

The applicant was, in 1989, convicted of the offences of murder and rape and sentenced to mandatory life imprisonment without parole for murder and was sentenced to imprisonment for 10 years for the rape, the sentences to be served concurrently. By virtue of s.18 of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (the Act) which came into operation on 11 February 2004 the applicant’s sentence of imprisonment for the crime of murder was taken to include a non-parole period of 20 years. Section 19 of the Act empowered the Director of Public Prosecutions to apply to the Supreme Court for an order fixing a longer nonparole period. Section 19(3) of the Act relevantly provided that the Supreme Court “must fix a non-parole period of 25 years if … 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.”

The Director applied to the Supreme Court for an order revoking the automatic 20 year non-parole and for an order that a 25 year non-parole period be fixed. The judge hearing the application (Southwood J) found beyond reasonable doubt that the act or
omission that caused the victim’s death was part of a course of conduct by the respondent that included conduct before the victim's death that would have constituted a sexual offence against the victim. Southwood J further found that but for s.19(3) of the Act which required him to fix a non-parole period of 25 years, he would have determined that the relative seriousness of the crime of murder committed by the respondent was not such as to require a longer non-parole period than 20 years. Southwood J revoked the 20 year non-parole period and fixed a 25 year non-parole period. See DPP v Bakewell [2007] NTSC 51.

The applicant applied for an extension of time within which to appeal against the order revoking the minimum statutory non-parole period of 20 years and the order imposing a non-parole period of 25 years.

The grounds of the application were that:

1. The learned sentencing judge erred in law in his construction of subsection 19(3) of the Act when read in its proper context.

2. The learned sentencing judge erred in law which error went to his jurisdiction by refusing or constructively refusing to exercise a jurisdiction he had to dismiss the application before him brought by the respondent, the Director of Public Prosecutions.

3. The learned sentencing judge erred in law in holding that subsection 19(3) of the Act operated in a manner that excluded the existence of a discretion in the Court to dismiss the application brought by the respondent, the Director of Public Prosecutions.

The Crown did not oppose the application for an extension of time in which to appeal on any of the three grounds.

The appeal was heard by the court on 28 February 2008 and judgement was delivered on 7 March 2008. See under Decisions for a further note of the case.