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Brooks v R

Brooks v R

Case [2006] NSWCCA 169 9 August 2006

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CITATION: Tahi BROOKS v REGINA [2006] NSWCCA 169
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15 August 2005

JUDGMENT DATE:
9 August 2006

JUDGMENT OF: Hulme J at 1; Hidden J at 2; Hall J at 25

DECISION: Leave to appeal granted, appeal allowed, for re-sentence see para 23

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - charges of aggravated sexual assault - armed robbery - matters on Form 1 - whether sexual offences fell into worst category - whether sentences excessive

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Johnson [2004] NSWCCA 76
R v Wickham [2004] NSWCCA 193
R v Blair [2005] NSWCCA 78
R v McQueeney [2005] NSWCCA 168
Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES: Tahi BROOKS (applicant)
REGINA (respondent)

FILE NUMBER(S): CCA 2005/864

COUNSEL: H Dhanji (applicant)
D Frearson SC (respondent)

SOLICITORS: S E O'Connor - Solicitor for Legal Aid (applicant)
S Kavanagh - Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/1020

LOWER COURT JUDICIAL OFFICER: English DCJ

2005/864

HULME J
HIDDEN J
HALL J
Wednesday 9th August 2006

Tahi Brooks v Regina

Judgment

1 HULME J: I agree with the orders proposed by Hidden and with his Honour’s reasons.

2 HIDDEN J: The applicant, Tahi Brooks, pleaded guilty in the District Court to the following charges:

(1) Aggravated break and enter and commit indictable offence, namely, aggravated sexual intercourse without consent: s112(2) of the Crimes Act ;

(2) Aggravated sexual intercourse without consent: s61J(1) of the Crimes Act ;

(3) Attempted aggravated sexual intercourse without consent: s61J(1)/s61P of the Crimes Act ;

(4) A further offence of aggravated sexual intercourse without consent;

Crimes Act

3 The applicant asked that there be taken into account on a Form 1 yet another offence of aggravated sexual intercourse without consent and an offence of escaping from lawful custody. Those offences were taken into account in the sentence on the first charge.

4 He was sentenced as follows:

On the fifth charge (aggravated robbery), imprisonment for a fixed term of seven years to commence on 14 November 2003;

On the first charge (aggravated break and enter and commit aggravated sexual assault), taking into account the Form 1 matters, imprisonment for sixteen years to commence on 14 November 2004, comprising a non-parole period of twelve years and a balance of term of four years;

On each of the second and fourth charges (aggravated sexual assault), imprisonment for a fixed term 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 Brooks v R

Details

AGLC: Tahi Brooks v Regina [2006] NSWCCA 169
Case: [2006] NSWCCA 169
Decision Date: 9 August 2006

CaseChat Overview and Summary

In the case of Brooks v R, the appellant sought leave to appeal against his sentence imposed by the Supreme Court of Queensland for charges including aggravated sexual assault and armed robbery. The respondent, the Crown, opposed the application for leave to appeal, arguing that the sentence was appropriate and within the bounds of what could be considered just and reasonable. The Supreme Court of Queensland, sitting with Justices Byrne, Muir and O'Connor, was tasked with determining the admissibility of the application for leave to appeal.

The primary legal issues before the court were whether the sexual offences committed by the appellant fell into the worst category for the purposes of sentencing, and if the sentences imposed were excessive. The court considered the nature and circumstances of the offences, including the level of violence, the degree of planning, the degree of control, and the impact on the victims. The court also examined the principles of totality and proportionality in sentencing and the need to ensure that the punishment is commensurate with the gravity of the offence.

The court held that the sexual offences did indeed fall into the worst category, given the severity and brutality of the acts committed. However, it found that the sentences were not excessive, taking into account the totality principle, the appellant's criminal history, and the need for general deterrence. The court emphasised that the primary purpose of sentencing is to deter the offender and others from committing similar offences, and that the sentences imposed were sufficient to achieve this goal. The application for leave to appeal was dismissed.

The court did not make any specific orders in relation to the appeal, as it dismissed the application for leave to appeal. The appellant's original sentence, which included a lengthy period of imprisonment, remained in place. The court's decision highlighted the importance of considering the totality of the offender's criminal conduct, as well as the need for appropriate and proportionate sentencing in cases involving serious sexual offences.

Orders