Brooks v The King
[2025] SASCA 88
•14 August 2025
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 v The Queen (2001) 207 CLR 121; Maguire v Modra (2010) 107 SASR 198; Millwood v The King [2024] SASCA 84; Mlakar v The King [2024] SASCA 76; Perry v Police [2006] SASC 136; Police (SA) v Hill (2022) 140 SASR 482; Robey v SA Police (1993) 18 MVR 121; R v Abdulla (2010) 200 A Crim R 365; R v Ayles (2007) 97 SASR 78; R v B [1999] SASC 403; R v Edigarov (2001) A Crim R 551; R v Jenner (2000) 110 A Crim R 512; R v Lennon (2003) 86 SASR 295; R v McMurtrie (2002) 83 SASR 261; R v Nedza [2013] SASCFC 142; R v Perry [2022] SASCA 127; R v Robinson [2024] SASCA 118; R v Saunders [2017] SASCFC 86; R v Willingham (2012) 112 SASR 278; Schultz v Pettitt (1980) 25 SASR 427; Strong v The Queen (2005) 224 CLR 1; Surman v Police (1996) 65 SASR 421; Walsh v The King [2024] SASCA 146; Warner v The King (2022) 142 SASR 275; Wright v Police [2008] SASC 216, considered.
BROOKS v THE KING
[2025] SASCA 88Court of Appeal – Criminal: Livesey P and David JA
THE COURT (ex tempore):
Introduction
By a notice of appeal dated 11 April 2025, the appellant sought permission to appeal against a sentence imposed in the District Court on 14 March 2025. That notice has twice been amended.
By a new notice filed on 11 August 2025, the appellant also sought permission to appeal his conviction, but the respondent has met that by seeking permission to amend the Information.
The appellant had earlier pleaded guilty to the following offences:
1.Three counts of aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).[1] The maximum penalty for each offence is imprisonment for four years.
2.One count of aggravated endangering life, contrary to s 29(1) of the CLCA,[2] for which the maximum penalty is imprisonment for 18 years.
3.Three counts of aggravated assault, contrary to s 20(3) of the CLCA,[3] for which the maximum penalty for each is imprisonment for three years.
4.One count of attempting to dissuade another person from giving evidence at judicial proceedings, contrary to s 244(3)(b) of the CLCA,[4] for which the maximum penalty is imprisonment for 10 years.
5.One count of breaching a bail agreement, contrary to s 17(1) of the Bail Act 1985 (SA),[5] for which the maximum penalty is a fine of up to $10,000 or imprisonment for two years.
6.One count of acquiring, owning or possessing ammunition without a licence or permit, contrary to ss 31(1) and 31(12) of the Firearms Act (2015) (SA),[6] for which the maximum penalty is a fine of up to $10,000 or imprisonment for two years.
[1] Information dated 9 June 2023, counts 1 (date of offence alleged to be 1 December 2019), 4 (5 December 2019), and 6 (7 February 2020).
[2] Information dated 9 June 2023, count 2 (2 December 2019).
[3] Information dated 9 June 2023, counts 15 (12 February 2020), 18 (22 May 2022), and 22 (23 May 2022).
[4] Information dated 9 June 2023, count 25 (15 August 2022).
[5] Information dated 26 May 2022, count 2 (25 May 2022).
[6] Information dated 26 May 2022, count 1 (25 May 2022).
After outlining the initial sentences for each of the counts, and the reductions made on account of the appellant’s guilty pleas, the sentencing judge applied to the resulting notional sentences the totality principle and imposed a head sentence of imprisonment for eight years and six months. Her Honour then imposed what she described as a “merciful” non-parole period of five years “in the hope that [the appellant] will commit to … rehabilitation during a lengthy parole period and beat … drug addiction whilst committing to counselling to deal with … anger management and proneness to violence”.
The sentencing judge ordered that the head sentence and non-parole period commence from when the appellant was taken into custody on 25 May 2022.
Overview: disposition of the applications and the appeals
Contrary to the assumptions made by the parties and the court at the time of sentence, the offending the subject of counts 4, 6 and 15 was not aggravated because it was committed in breach of intervention orders.
As that circumstance of aggravation charged in connection with counts 6 and 15 could not be made out, the respondent should be granted leave to amend those counts to remove those allegations of aggravation. Permission to appeal against conviction on counts 6 and 15 should be refused.
Given the approach taken to totality by the sentencing judge when exercising a broad sentencing discretion to arrive at a single sentence, it is not possible to isolate the individual sentences which relate to counts 4, 6 and 15 and the whole sentence is liable to be set aside.[7] As there have been specific, material errors which vitiate the exercise of sentencing discretion and require that this Court consider re-sentence, it is not strictly necessary to consider whether the sentence is manifestly excessive.
[7] McGarry v The Queen (2001) 207 CLR 121, [8]-[9] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), “the decision to make an order for indefinite imprisonment, and the decision fixing the nominal sentence, form part of a single sentencing decision”; Strong v The Queen (2005) 224 CLR 1, [25] (McHugh J), “[t]here can be few, if any, cases where an appellate court, having concluded that an integer of a sentence has miscarried, can refuse to determine afresh the other integers of the sentence”.
The appellant’s assaults were aggravated because they were committed knowing that the victim was a person with whom the offender was, or was formerly, in a domestic relationship, as the CLCA requires.[8] In the case of counts 18 and 22, the assaults were aggravated because they were committed in breach of an interim intervention order served on 30 April 2020, although count 22 was not charged on that basis. In addition, in the case of count 4, the offending was also aggravated by the uncharged fact that it was committed after the appellant had been released on bail following arrest in connection with the offending the subject of counts 1 and 2.
[8] See CLCA, s 5AA(1)(g) and the definition of “in a relationship” in s 5AA(4a), which includes marriage and a domestic partnership.
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.
Last week, the prosecution provided an affidavit from Brevet Sergeant Ellis. That affidavit disclosed that errors were earlier made by the prosecution regarding the charged allegations of aggravation concerning counts 6 and 15 which occurred in February 2020. Those allegations are incorrect in so far as they suggest those assaults were aggravated because they occurred in breach of intervention orders.
The affidavit shows that an interim police intervention order was served on 6 December 2019 but revoked on 6 January 2020. There was no order in place between 6 January and 1 April 2020, when another interim police intervention order was served. That order was revoked on 30 April 2020 due to a change in court date. An interim police intervention order was served on 30 April 2020 and confirmed on 16 June 2020. A variation preventing the appellant from contacting the complainant was granted on 25 August 2022. The present order was confirmed on 14 March 2025.
The effect of this evidence is that three of the six aggravated assaults were not aggravated, whether in fact (count 4) or as pleaded (counts 6 and 15) because they did not occur after and in breach of intervention orders served on the appellant.
Whilst not all of these specific errors were picked up at sentencing or initially in this appeal, the appellant has now filed a notice of appeal against conviction and a second amended notice of appeal against sentence. By the notice of appeal against sentence filed on 11 August 2025 the appellant now pleads:
1.The Learned Trial Judge erred by sentencing the appellant on an erroneous factual basis in that
(SR6[11] and SR7[2]):1.1 The intervention order generated by the police on 5 December 2019 was not in force at the time count 4 was committed because it had not been served on the applicant (Cf: SR6[11]);
1.2 There was no intervention order in place at the time count 6 was committed and thus the second aggravating feature alleged was without foundation (Cf: SR7[3]-[4]).
1.3 There was no intervention order in place at the time count 15 was committed and thus the second aggravating feature alleged was without foundation (Cf: SR7[3]-[4])
2.The Learned Trial Judge erred in imposing a head sentence and non-parole period which were manifestly excessive.
These are an improvement on the earlier grounds. Quite apart from addressing the additional errors, they adequately particularise the errors and where they can be found in the sentencing remarks.
The application to amend the Information
Though the appellant sought leave to appeal his convictions on counts 6 and 15, the respondent applied to amend those counts so as to remove the second aggravating circumstance charged on each count, namely, that each was committed in breach of an interim intervention order.
The respondent’s application was made pursuant to s 181 of the Criminal Procedure Act 1921 (SA), which provides:
181—Charges
(1)An information is not invalid because of a defect of substance or of form.
(2)A court may—
(a)amend an information to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b)dismiss an information if the defect cannot appropriately be cured by amendment.
This provision confers a broad discretionary power which may be exercised by the Court of Appeal, including after a guilty plea.[11]
A number of authorities demonstrate that, notwithstanding the criminal context, a broad interpretation has been given to this provision. Amendments have been permitted after a trial. For example, in R v Ayles, the trial judge amended a charge on an Information in her reasons for verdict so as to plead a different section of the Criminal Law Consolidation Act 1935 (SA), as well as a longer period during which the offending occurred. Doyle CJ held that the trial judge had the power to amend.[12] Doyle CJ recognised that the “new and substituted charge” did not raise “the determination of any new issue” because the “substance of the case” had not changed. Importantly, the findings required by the prosecution to secure a conviction had not changed and, in the circumstances of that case, there was no basis for any submission that there was any resulting injustice.[13]
Earlier authorities had recognised what may be described as a “pith and substance” test in connection with amendments.[14]
Section 181 does not refer to the “trial”. Nonetheless, we do not find that is of any particular moment. On the face of it, and as with s 128, it is capable of applying at any stage of criminal proceedings, subject of course to there being no substantial prejudice caused. That is consistent with authorities such as Wright v Police, where the Court recognised that s 181 could be employed to permit an amendment during the course of an appeal in circumstances where there was no prejudice to the appellant.[15]
[11] Ilich v The Queen [2021] SASCA 45, [69]-[71] (Kelly P, Lovell and Livesey JJA).
[12] R v Ayles (2007) 97 SASR 78, [62]-[64] (Doyle CJ, with whom Gray and David JJ agreed), affirmed in Ayles v The Queen (2008) 232 CLR 410. Kiefel J (as she was) observed that the amendments made by the trial judge do not breach the demarcation between prosecution and trial judge.
[13] R v Ayles (2007) 97 SASR 78, [63] (Doyle CJ, with whom Gray and David JJ agreed). See, similarly, R v B [1999] SASC 403, [119]‑[123] (Lander J, with whom Millhouse and Duggan JJ agreed); R v Abdulla (2010) 200 A Crim R 365 and R v Willingham (2012) 112 SASR 278, [36] (Doyle CJ) (albeit that Doyle CJ considered that the trial judge made no error by refusing to allow an amendment in the circumstances of that particular case).
[14] Elliott v Harris (No 2) (1976) 13 SASR 516, 522 (Bray CJ); Maguire v Modra (2010) 107 SASR 198, [19] (Vanstone J). Alternatively, where the “pith and substance” of an offence was materially altered, see Surman v Police (1996) 65 SASR 421, 424, 427 (Bollen J).
[15] Wright v Police [2008] SASC 216, [29] (Anderson J), citing Robey v SA Police (1993) 18 MVR 121, 123 and Ireland v Police [2005] SASC 202, [13], [23] (Gray J).
Whilst these are defects of substance, the question is whether the appellant has been substantially prejudiced by them. If so, no amendment may be made.
It is not suggested that the appellant has been substantially prejudiced by these defects. There is no basis upon which to conclude that, but for the defects, the appellant may have challenged these charges or otherwise conducted his case differently.[16] The underlying conduct was not put into issue. And, regardless of the defects, these assaults were aggravated because they were committed against a domestic partner.
[16] See Perry v Police [2006] SASC 136, [29] (Doyle CJ).
This is not a case where removing one aggravating circumstance demonstrates that the convictions cannot stand.[17] Allowing these amendments does not alter the “pith and substance of the offences”.[18] The amendments do not affect the validity of the appellant’s pleas or prejudice the appellant, especially where it is conceded that this Court’s discretion to re-sentence has been enlivened and, on appeal, the appellant’s sentence cannot be increased.[19]
[17] Police (SA) v Hill (2022) 140 SASR 482, [141]-[143] (Lovell, Livesey JJA and Blue AJA, with whom Kourakis CJ and Doyle JA agreed).
[18] Schultz v Pettitt (1980) 25 SASR 427, 433 (Cox J).
[19] Criminal Procedure Act 1921 (SA), s 158(8).
Accordingly, we propose to allow the amendments, the effect of which is that the appellant remains guilty on count 6 of the offence of aggravated assault causing harm and, on count 15, of aggravated assault.
In those circumstances it is not necessary to address the appeal against conviction, and we would dismiss the application for permission to appeal against conviction.
The circumstances of the offending
The appellant and his former domestic partner, the complainant AB, were in a relationship for nearly a decade. They have three children, all of whom were under 10 years at the time of the offending. The relationship between the appellant and the complainant was volatile and marred by mutual drug abuse.
Whilst they were in a domestic relationship, on seven occasions during a period of two and a half years between 1 December 2019 and 23 May 2022, the appellant committed offences involving violence against AB.
The assaults were aggravated because of the existence of the relationship between the appellant and AB. Some of the offences were also aggravated because they followed service of an intervention order and comprised a breach of that order.
On 1 December 2019, the appellant and AB had an argument because she believed the appellant had been unfaithful. Whilst AB was sitting in a car at their home, the appellant opened the driver’s door and punched AB in the mouth and her ribs and stomach. This was in front of two of their children, who were also sitting in the car. The appellant told AB that if she got out of the car, he would kill her. This conduct comprised the charge of aggravated assault causing harm, count 1.
The following day, on 2 December 2019, AB was driving on a roadway when she saw the appellant driving towards her. She was fearful and put her car into reverse. As she was doing so, the appellant drove into the front of her car and caused it to spin. When she tried to drive away, the appellant drove past her at speed and manoeuvred his car so that it faced her. He then drove at AB, hitting the front of her car, causing it almost to flip. This conduct comprised the charge of aggravated endangering life, count 2.
AB tried to lock the car doors, but the appellant smashed the back passenger window with a hammer and grabbed the keys. When AB got out of the car and started to run, the appellant drove away. AB made her way to a police station with the assistance of a witness who had seen what had happened. The appellant rang AB and told her that he preferred that she did not report him. When she agreed, the appellant went home with AB, laughing.
Police later came to their home and arrested the appellant. AB went to the police station after the appellant was granted bail and, together, they caught a taxi home.
Three days later, on 5 December 2019, AB was in bed asleep. She awoke to the appellant punching her ribs. He accused her of being unfaithful. This assault caused pain and difficulty breathing. This conduct comprised the charge of aggravated assault causing harm, count 4.
Later that day AB went to the police station and gave an affidavit to police, setting out the events.
On 7 February 2020, the appellant accused AB of taking money out of his bank account. When AB denied the allegation, she was called a liar. The appellant grabbed her by the hair and smashed her head into the driver’s side door panel of a car. This was done in front of their children. AB was left with a bruise and a large lump on her head. She was in severe pain. This conduct comprised the charge of aggravated assault causing harm, count 6.
Nearly a week later, on 12 February 2020, the appellant grabbed AB by the throat and pushed his thumb inside her throat. AB could not breathe. The appellant held her by the neck for a few seconds. AB was gasping for air. She was able to push the appellant away by using her leg. This assault left a scratch on AB’s neck. This conduct comprised the charge of aggravated assault, count 15.
Just over two years later, on 22 May 2022, following an altercation, AB sat crunched over in her car with her hands placed over her head. She was crying. The appellant punched her twice, once to the right forearm and then to the right eye area. This conduct comprised the charge of aggravated assault, count 18.
The following day, on 23 May 2022, AB had their daughter sitting on her left hip. The appellant grabbed AB by the throat with his right hand. This caused AB and their daughter to fall to the ground. AB lost consciousness. When she awoke, her nose was bleeding. She asked the appellant how that happened. The appellant said that he had bitten her. The incident left her with a hand mark bruise on her neck. This conduct comprised the charge of aggravated assault, count 22.
Following the appellant’s arrest and remand in custody, on 15 August 2022, he phoned AB from prison. He said the following to AB:[20]
Yeah well I’m not going to be out for a while like unless you drop the charges.
Well let me out of here fuck all you got to do is fucking not go to court like its fucking if you’re not going to court I’m going to have to re fucking, I got to hire Alex again and it’s going to fucking cost me $18,000
Well, I can’t…I’m here to November anyway even if you don’t push the charges from all them other charges but if you drop the charges, I’ll be out in November. I don’t want you to go to court.
Just give me one like, let me out that’s all I ask like, and like I’ll prove to you that I can be a good father for the kids, like please.
…
Yeah well just fucking umm think about what I said because they’ll probably come see you this week about those charges and shit alright.
[20] Sentencing Remarks dated 14 March 2025, pp 3-4.
This conduct constitutes the offence of attempting to dissuade another person from giving evidence, count 25.
Earlier, police had come to the appellant’s house and located ammunition. This was at a time when the appellant was subject to a bail agreement dated 24 November 2021 which prohibited the possession of any firearms or ammunition. This comprised the charges of possessing ammunition without a licence and breaching bail.
AB read a victim impact statement to the sentencing court. She told the sentencing judge that she found it hard to write the statement because it reminded her of all of the traumatic, painful and horrible things the appellant had done. She said that she lived in constant fear and hated herself. She said the appellant was always putting her down and telling her she was no good. She felt worthless and she felt that it was her fault that the appellant hurt and abused her.
The only happiness AB found was when she took drugs. These numbed her pain. They led to her addiction. AB said that she tried to leave the appellant many times but that he found a way to drag her back. She was so ashamed that her children had witnessed the appellant’s abuse of her. Eventually she decided that she wanted to live and not die. She has found it hard to stay sober, and she has struggled each day with memories of what the appellant did. She is terrified that the appellant will return to hurt her, and she is scared that he will destroy her all over again.
AB does not think that she could feel safe unless the appellant was in gaol.
The circumstances of the offender
The appellant is now 36 years. His offending history commenced in 2004 when, as a youth, he committed a number of behavioural and traffic offences. As an adult, the appellant has convictions for theft, traffic offences, breach of bail, ill‑treating an animal, illegal use, aggravated assault and assaulting a police officer. He has breached various of the bonds imposed.
The appellant was born in the country. His mother was a drug user and suffered from mental health issues. She was often absent in gaol during the appellant’s childhood. The appellant’s father was an alcoholic who was physically abusive towards the appellant’s mother, and towards the appellant and his siblings.
The appellant was expelled from school in year 8 and stopped going to school in year 9. When the appellant was 12 his mother was killed in a motor accident. The appellant struggled dealing with his grief. This led to drug use. By the time the appellant was 18, he was using cannabis and methylamphetamine regularly.
The appellant and AB commenced a relationship in 2013, when he was around 28 years. They have two boys and a girl. Before the offending, the appellant made significant attempts to improve his behaviour and support his family. He obtained employment and stayed off methylamphetamine for around a year. The appellant’s drug relapse coincided with AB’s drug use. Their mutual drug abuse continued throughout the period of the appellant’s offending. They were heavily addicted to drugs at a time when they were caring for their children.
The sentencing judge was told that the appellant’s time in custody following his arrest in 2022 had caused him to reflect on his behaviour and the impact of his drug addiction. The appellant took steps to engage in counselling whilst in custody. These considerations were reinforced before us today.
Whilst it was conceded before the sentencing judge that the appellant’s offending required the imposition of an immediate gaol sentence, the sentencing judge was urged to impose a sentence that provided the appellant with a long period on parole to assist with re-integration into society and rehabilitation.
The prosecution submitted that the appellant had blatantly breached an intervention order and that the offending of endangering life by driving a car at AB was a particularly serious offence.
The sentencing judge was told that the various court orders and arrests had not dissuaded the appellant. She was referred to a number of authorities which addressed the increasing prevalence of domestic violence and the serious nature of its effect on the community.[21]
[21] R v McMurtrie (2002) 83 SASR 261 (Gray J); R v Lennon (2003) 86 SASR 295 (Doyle CJ).
The approach of the sentencing judge
The sentencing judge made the following remarks:[22]
Reporting allegations to police are difficult enough without pressure being placed upon victims to discontinue them. Victims of domestic violence must have confidence to report offending and understand that the courts will impose heavy sentences for offenders who try to dissuade their victims from testifying or reporting offending to police.
…
Your relationship with AB was clearly volatile and dysfunctional. Some of your offending was committed in the presence of your young children, which is going to inevitably affect their social, emotional and psychological development. Your offending was prolonged and it was persistent. You exerted a significant degree of control and influence over AB and you were not deterred by intervention orders or being arrested by police.
Your offending was cowardly and it was brutal. It is no mark of a man to be violent to a woman.
Your offending comes against a poor history of complying with court orders and bail agreements.
The paramount consideration for me in sentencing is the protection of the safety of the community.
[22] Sentencing Remarks dated 14 March 2025, p 6.
The sentencing judge referred to the decision of R v Saunders and its reliance on R v Edigarov, where Woods CJ at CL had explained:[23]
[V]iolent attacks in domestic settings must be treated with real seriousness. Regrettably that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically or otherwise to enforce their silence and their acceptance of such conduct. In truth, such conduct is brutal, cowardly and inexcusable and the courts have a duty to ensure to that it is adequately punished and that sentences are handed out which have a strong element of personal and general deterrence.
[23] R v Saunders [2017] SASCFC 86 (Hinton J); R v Edigarov (2001) A Crim R 551, [41] (Woods CJ at CL, with whom Studdert and Bell JJ agreed).
Whilst the sentencing judge accepted that the appellant’s time in custody had made him reflect on his behaviour, and that he had ceased drug use, she found it difficult to forecast his prospects of rehabilitation given the persistence of his offending and his offender history. She thought that the appellant would need a lot of help when released on parole.
When sentencing, the judge indicated the notional sentences for each count and the reductions made on account of the appellant’s guilty pleas,[24] before arriving at a cumulative head sentence of 11 years, five months and 14 days. The sentencing judge concluded that this sentence was “crushing” before reducing it on account of the “totality principle” to eight years and six months.
[24] Count 1, 18 months reduced by five percent to one year, five months and three days; Count 2, five years, reduced by five percent to four years and nine months; Count 4, eight months, reduced by five percent to seven months and 18 days; Count 6, 20 months, reduced by five percent to one year and seven months; Count 15, six months, reduced by five percent to five months and 21 days; Count 18, seven months, reduced by five percent to six months and 19 days; Count 22, nine months, reduced by five percent to eight months and 16 days; Count 25, two years, reduced by 35 percent to one year, three months and 18 days and, for the possession of ammunition without a licence and breaching bail, s 26 of the Sentencing Act 2017 (SA) was used to impose one sentence of three weeks reduced by 30 percent to 14 days.
As indicated, the sentencing judge imposed a “merciful” non-parole period of five years and ordered the forfeiture of the ammunition and imposed an intervention order.
When the sentencing judge asked counsel whether there were any errors of fact or law, neither counsel suggested that there were.
The determination of the appeal against sentence
We accept that the appellant’s entrenched disadvantage must be given full weight. That does not mean that it is only to be considered as a circumstance of mitigation. Whilst the appellant’s disadvantage and early exposure to violence and illicit drugs help to explain his impulsive recourse to violence, and thereby reduce his moral culpability, these same matters also serve to reinforce the importance of imposing a sentence which has the effect of protecting the community.[25]
[25] See Bugmy v The Queen (2013) 249 CLR 571, [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); Lee v Western Australia (2022) 303 A Crim R 340, [61]-[65] (Buss P, Mitchell JA and Livesey AJA); R v Perry [2022] SASCA 127, [138]-[142] (Livesey P and David JA).
In our view, the appellant’s offending was particularly serious. The seriousness of the appellant’s offending is in part shown by the fact that, even after the appellant was arrested and released on bail, he was not deterred. It is a serious matter to brazenly continue to offend after arrest and release on bail.[26] The appellant’s disregard for the complainant and the processes of the law is also underscored by the offending which followed the service of an intervention order in June 2020 which prevented the appellant from assaulting, threatening, harassing or intimidating the complainant.
[26] Cf Walsh v The King [2024] SASCA 146, [43] (Livesey P, Bleby and David JJA).
Not only was the appellant’s violent offending toward the complainant sustained it was, as the sentencing judge found, both cowardly and brutal. It was at times inflicted by a husband on a wife in front of their children. On one occasion it involved the use of a motor vehicle. The appellant’s offending occurred against the background of a poor criminal record. Last year, in Mlakar v The King, this Court said:[27]
Domestic violence is unfortunately prevalent in society. General and personal deterrence must play a significant role in assessing an appropriate penalty. As observed by Nicholson J in R v Nedza, the courts must make it plain that they “will not tolerate domestic violence, particularly where, as is typical, it is meted out to physically weaker or defenceless women or children”.[28]
[27] Mlakar v The King [2024] SASCA 76, [21] (Lovell, Doyle and Bleby JJA).
[28] R v Nedza [2013] SASCFC 142, [87] (Nicholson J).
Later that month, in Millwood v The King, this Court said the following:[29]
Family and domestic violence has been described as violence that occurs within an intimate partner or family relationship. Family and domestic violence is rightly deprecated in the community. It is increasingly being recognised as a major national health and welfare issue in contemporary Australian society. It can have lifelong physical and mental impacts for victims, impacting their economic and social wellbeing. It occurs across all ages and backgrounds, but mainly affects women and children. It may be no less destructive for those who witness it and must live with its consequences.
On 15 March 2023, the Australian Bureau of Statistics released the “Personal Safety Survey (2021-2022)”. The survey revealed that an estimated 4.2 million people (2.7 million women and 1.5 million men) aged 18 years and over have experienced violence, emotional abuse, or economic abuse by a cohabiting partner in Australia. It has been suggested that “violence” in this context may take the form of threats, assaults, abuse, neglect or harassment, and that it is often used to intimidate, harm or control. In consequence, it is recognised that not all forms of violence are physical. Whilst the degree of physical injury sustained is relevant to sentencing, the gravity of family and domestic violence is not to be measured solely by the physical consequences of it. The offending ought not be divorced from the context in which it has occurred, particularly where there is evidence of degradation, control, threats, or the creation of an environment of fear and dread.
In late 2023 the South Australian Government announced that a Royal Commission, chaired by Ms Natasha Stott Despoja AO, would examine prevention and early intervention, as well as “recovery and healing”, concerning family, domestic and sexual violence. The inquiry is scheduled to begin on 1 July 2024.
Against this growing awareness, the courts have responded with sentences that appropriately recognise the need for denunciation, punishment, and deterrence. The courts have recognised that the protection of the safety of the community is particularly important, as the victims of this kind of offending are usually vulnerable. In consequence, offenders in cases of family or domestic violence are likely to find that their sentences are appreciably harsher than when compared with similar offending in other contexts which do not involve vulnerable victims. Having said that, orthodox sentencing principles, whether arising under the Sentencing Act or at common law, must be observed and applied just as in all other cases of criminal wrongdoing in order to arrive at a just sentence, reasonably proportionate to the circumstances of the offending and the offender.
(Citations omitted.)
[29] Millwood v The King [2024] SASCA 84, [30]-[33] (Livesey ACJ and Bleby JA).
The prevalence of domestic violence does not appear to have abated in the 20 or so years since the cases referred to by the sentencing judge were decided. However, community awareness of domestic violence and its pernicious effects on those who are subjected to it, whether they be those who are assaulted or those who witness those assaults, is growing. That will no doubt be assisted by publication of the findings and recommendations of the Royal Commission, due this month.[30]
[30] These were released on 19 August 2025, see “With Courage: South Australia’s vision beyond violence: Royal Commission into Domestic, Family and Sexual Violence” and “The Commission’s Recommendations - Royal Commission into Domestic, Family and Sexual Violence’.
The attitude of the community to offending of this kind has hardened. It is necessary for this Court to do what it can to denounce, punish and deter. That is an essential aspect of this Court’s role in striving to protect the safety of the community. As this Court has said,[31] though it is necessary to sentence offenders in accordance with recognised sentencing standards and authorities, domestic violence offenders can expect to be sentenced in a manner which is appreciably harsher than when compared with offenders who are not in a domestic relationship involving victims who are not as vulnerable and in need of protection.
[31] Millwood v The King [2024] SASCA 84, [33] (Livesey ACJ and Bleby JA).
Whilst the physical violence inflicted by the appellant on the complainant was particularly serious, no less serious was his attempt to continue exerting influence and control over her by dissuading her from giving evidence. As has been observed many times, that is an inherently serious offence:[32]
The offence of attempting to dissuade a witness is a serious one. As the sentencing Judge said, attempting to dissuade a witness from giving evidence strikes at the heart of the judicial system, by attempting to deprive a court of probative evidence. If a court is deprived of relevant probative evidence, the risk of a wrong decision clearly arises. The offence is serious not only because it involves the making of a threat to another person. It has the added seriousness that the purpose of the threat, and its possible consequence, is the making of a decision by a court which will be made on an incomplete appreciation of the relevant facts, and will possibly be erroneous for that reason. Such a decision can, in turn, weaken confidence in the system of justice. At the very least, some of the persons involved in the matter before the court are likely to know that a threatened witness has not given evidence and thus are likely to know that an unreliable decision has been made.
[32] R v Jenner (2000) 110 A Crim R 512, [72] (Doyle CJ, with whom Bleby and Martin JJ agreed). See also R v Robinson [2024] SASCA 118, [31]-[37] (Lovell, Doyle and Bleby JJA).
The appellant pleaded guilty to very serious offending. It is necessary to reflect that offending in a sentence that is proportionate to and fairly reflective of the circumstances of the offending and the offender in this case.
In all of these circumstances, we would identify separate sentences under s 26(2a) of the Sentencing Act 2017 (SA) and make reductions for the appellant’s guilty pleas in order to arrive at the same notional sentences as the sentencing judge, set out below.
Count Offence Initial Sentence Reduction Notional Sentence Count 1 on the Information dated 9 June 2023 Aggravated assault causing harm
(1 December 2019)
18 months 5% 1 year, 5 months and 3 days Count 2 on the Information dated 9 June 2023 Aggravated endangering life
(2 December 2019)
5 years 5% 4 years and 9 months Count 4 on the Information dated 9 June 2023 Aggravated assault causing harm
(5 December 2019)
8 months 5% 7 months and 18 days Count 6 on the Information dated 9 June 2023 Aggravated assault
(7 February 2020)
20 months 5% 1 year and 7 months Count 15 on the Information dated 9 June 2023 Aggravated assault
(12 February 2020)
6 months 5% 5 months and 21 days Count 18 on the Information dated 9 June 2023 Aggravated assault
(22 May 2022)
6 months 5% 6 months and 19 days Count 22 on the Information dated 9 June 2023 Aggravated assault
(23 May 2022)
9 months 5% 8 months and 16 days Count 25 on the Information dated 9 June 2023 Attempting to dissuade another person from giving evidence at judicial proceedings
(15 August 2022)
2 years 35% 1 year, 3 months and 18 days Counts 1 and 2 on the Information dated 26 May 2022 Breaching a bail agreement
(25 May 2022)
Acquiring, owning or possessing ammunition without a licence or permit
(25 May 2022)
3 weeks 30% 14 days Totals 12 years, 7 months and 21 days 11 years, 5 months and 19 days Conclusion
After making modest allowances for concurrence and totality,[33] we would impose the same head sentence of eight years and six months and impose the same non-parole period of five years.
[33] See, for example, Warner v The King (2022) 142 SASR 275, [96]-[104] (Livesey P), [125]-[132] (Doyle JA).
In these circumstances, permission to appeal will be granted but the appeal against sentence dismissed. The sentence will operate from 25 May 2022. The same intervention order remains in place.
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