Brooks v The King

Case [2025] SASCA 88

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

BROOKS v THE KING

[2025] SASCA 88

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice David)

14 August 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS

This is an application for permission to appeal against conviction and sentence.

The appellant pleaded guilty to serious offending concerning offences of violence, and a charge of attempting to dissuade another person from giving evidence, committed against the complainant while they were or had been in a domestic relationship.

The appellant was sentenced to a head sentence of eight years and six months’ imprisonment, with a non-parole period of five years.

The appellant contended that there was a specific, material error when the sentencing judge found that the aggravated assault causing harm committed on 5 December 2019 breached an intervention order. The appellant also contended that the sentence was manifestly excessive.

After the respondent filed an affidavit outlining the dates intervention orders were made, the appellant sought leave to appeal his convictions on counts 6 and 15 because, contrary to the assumptions made by parties and the court at the time of sentence, these assaults did not involve the breach of an intervention order, and a charged circumstance of aggravation was not made out.  The respondent sought leave to amend those counts.

Held (the Court), granting leave to amend the Information and dismissing the application for permission to appeal against conviction; granting permission to appeal against sentence but dismissing the appeal against sentence:

1.The Court granted the respondent leave to amend counts 6 and 15 to remove the pleaded allegations of aggravation concerning breach of an intervention order. Permission to appeal against conviction on counts 6 and 15 was refused.

2.There have been specific errors, material to the exercise of sentencing discretion because the effect of the errors was to erroneously treat certain assaults as aggravated (whether pleaded or otherwise) by the fact they were committed in breach of intervention orders when they were not.

3.In those circumstances, it was not strictly necessary to consider whether the sentence is manifestly excessive.

4.In the independent exercise of its sentencing discretion, the Court did not think that a sentence less than that imposed by the sentencing judge should be imposed. The appeal against sentence should be dismissed.

Bail Act 1985 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) ss 5AA, 20(4), 29(1), 20(3), 244(3)(b); Criminal Procedure Act 1921 (SA) s 158(8); Firearms Act (2015) (SA) ss 31(1), 31(12), referred to.
Ayles v The Queen (2008) 232 CLR 410; Bugmy v The Queen (2013) 249 CLR 571; Elliott v Harris (No 2) (1976) 13 SASR 516; Ireland v Police [2005] SASC 202; Kentwell v The Queen (2014) 252 CLR 601; Lee v Western Australia (2022) 303 A Crim R 340; McGarry…

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Brooks v The King [2025] SASCA 88
Case
[2025] SASCA 88
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CaseChat Overview and Summary

In Brooks v The King, the appellant appealed against a sentence imposed by a sentencing judge for aggravated assault causing harm. The appeal concerned two grounds: an alleged error in the factual basis upon which the appellant was sentenced, and that the head sentence and non-parole period were manifestly excessive.

The primary legal issue before the court was whether the sentencing judge made a material error by considering that the aggravated assault committed on 5 December 2019 breached an intervention order, when in fact the relevant interim intervention order was only imposed after that date. This alleged error was argued to be significant as it potentially led to the sentencing judge assuming an un-pleaded circumstance of aggravation.

The court acknowledged that the sentencing judge had stated that an intervention order had been imposed less than three days before the aggravated assault, and that this order did nothing to prevent further offences. The appellant contended that this was factually incorrect and constituted a material error. The respondent did not contest that this specific error concerning the timing of the intervention order was material to the sentencing discretion. The court noted that while it was not sentencing for breach of the intervention order itself, the existence of such an order was a relevant factor in determining the appropriate sentence for the aggravated assault.

The court granted permission to appeal but dismissed the appeal against sentence, finding that in the independent exercise of their sentencing discretion, a sentence less than that imposed by the sentencing judge should not be imposed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As will become clear, in the independent exercise of our sentencing discretion we do not think that a sentence less than that imposed by the sentencing judge should be imposed. Accordingly, and consistently with Kentwell v The Queen,[9] permission to appeal should be granted but the appeal against sentence dismissed. [9] Kentwell v The Queen (2014) 252 CLR 601, [35] (French CJ, Hayne, Bell and Keane JJ). The appellant’s proposed appeals – further evidence The appellant sought permission to appeal on the following amended grounds filed on 25 July 2025:1.The Learned Sentencing Judge erred by sentencing the appellant on an erroneous factual basis (SR6[11]) and (SR7[2]).2.The Learned Sentencing Judge erred by imposing a head sentence and non‑parole period which were manifestly excessive. As for the first appeal ground, it would have been better if the asserted factual error had been identified. The bracketed references to the pages and paragraph numbers in the sentencing remarks make sense only if the asserted error is articulated. At the callover on 4 August 2025, counsel for the appellant was asked about this ground. He contended that insofar as the sentencing judge said that the aggravated assault causing harm committed on 5 December 2019 breached an intervention order, that was incorrect because the relevant interim intervention order was only imposed after that assault. Because the effect of this error was to assume an un-pleaded circumstance of aggravation, it was a material error. The appellant contended that this emerged from the passage containing the error:[10]At the time of the aggravated assault causing harm you committed on 5 December 2019 an intervention order had been imposed to protect AB [the complainant] less than three days before. That order did nothing to stop you committing offences of violence against AB on further occasions. She should have felt protected and should have been protected by that intervention order. Instead to her it was not worth the paper it was written on.In R v Saunders (2017) SASCFC 86 at 44 Hinton J said this: It is important to the maintenance of the confidence of the protection that intervention orders are intended to provide that the courts treat any breaches as very serious and impose sentences which reflect the contemptuous nature of a breach of a court-imposed intervention order and most importantly denounce, protect and deter.I am not sentencing you for offences of breaching a court-imposed intervention order or a police-imposed intervention order. However, each of counts 6, 15 and 18 are aggravated because you committed those offences in breach of an intervention order.Further, the fact that there was an intervention order in place, which you ignored when you committed those offences, is a relevant factor in determining the appropriate sentence.[10] Sentencing Remarks dated 14 March 2025, pp 6-7. The respondent did not contest that this specific error concerning count 4 was material to the exercise of the sentencing discretion.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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