Brooks v The King - [2025] SASCA 84

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BROOKS v THE KING
[2025] SASCA 84
Judgment of the Court of Appeal (ex tempore)
(The Honourable Acting Chief Justice Livesey and the Honourable Justice David)
31 July 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
This is an application for permission to appeal against sentence. The applicant requires an extension of time of nearly eight years.
The applicant pleaded guilty to attempting to escape lawful custody, contrary to ss 254(1) and 270A(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), illegally using a motor vehicle, contrary to s 86A(1) of the CLCA, and damaging property, contrary to s 85(2) of the CLCA.
The offending concerned an attempt to escape Port Augusta Prison using a truck parked inside the perimeter of the prison.
At the time of the offending the applicant was already serving a sentence of 29 years, four months and 10 days, for which there was a non-parole period of 23 years.
The applicant’s grounds of appeal were primarily concerned with the imposition of a 12-month licence disqualification.
Held (Livesey ACJ and David JA), refusing an extension of time and refusing permission to appeal:
1.The Court has no discretion to impose an order different from a 12-month licence disqualification.
2.The Court has no discretion to order that the period of disqualification operate so that it expires before release from prison.
3.There is accordingly no merit in the applicant’s proposed grounds of appeal. There is consequently no utility in granting an extension of time nor granting permission to appeal against sentence.

Criminal Law Consolidation Act 1935 (SA) ss 85(2), 86A, 254(1), 270A(1); Joint Criminal Rules 2022 (SA) r 193.1(3)(c); Road Traffic Act 1961 (SA) s 169B, referred to.
Austin v The King [2023] SASCA 64; Freeman v Police (2006) 180 A Crim R 524; Gikas v Police [1999] SASC 139; Lowe v The King [2025] SASCA 24; R v Henderson (2023) 142 SASR 507; R v Koch [2015] SASCFC 31; R v Sprecher (2015) 123 SASR 15; Trewren v The King [2023] SASCA 100, considered.

BROOKS v THE KING
[2025] SASCA 84
Court of Appeal – Criminal: Livesey ACJ and David JA
THE COURT (ex tempore):
Introduction

By notice of appeal dated 30 June 2025, the applicant seeks permission to appeal against a sentence imposed in the District Court by Judge McEwen on 10 November 2017. The applicant requires an extension of time of nearly eight years.
On 20 September 2016, the applicant pleaded guilty to the following offences:
·Attempt to escape lawful custody, contrary to ss 254(1) and 270A(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA);
·Illegal use of a motor vehicle, contrary to s 86A(1) of the CLCA; and
·Damage property, contrary to s 85(2) of the CLCA.
At the time of the offending, the applicant was already serving a sentence of 29 years, four months and 10 days, for which there was a non-parole period of 23 years. That sentence had been imposed by Judge Smith on 19 December 2003 for serious offending including rape, attempted rape, criminal trespass and larceny.
The subject offending concerned an attempt to escape Port Augusta Prison using a truck parked inside the perimeter of the prison. The attempted escape involved the applicant and two co-accused. The sentence imposed by Judge McEwen, which is the subject of this appeal, was 12 months’ imprisonment reduced to seven months and one week on account of the applicant’s guilty plea, to be served cumulatively on the existing sentence, with the non-parole period extended by four months, together with the mandatory licence disqualification of 12 months.
The licence disqualification
Whilst the applicant’s handwritten grounds of appeal are a little difficult to follow, they are primarily concerned with the imposition of the 12-month licence disqualification. Today, the applicant explained that the licence disqualification will impede his ability to get on with his life after release from prison. As he plans to live in the country, it will make it hard for him to find work and it will make seeing his parole officer difficult.
Three points should be made about the disqualification order.
First, by reason of s 86A(2) of the CLCA, a conviction under s 86A(1) renders the defendant subject to a mandatory 12-month licence disqualification:
Where an adult court finds a person guilty of an offence against this section, the court must (whether or not it convicts the person of the offence and in addition to any other order that it may make in relation to the person) order that the person be disqualified from holding or obtaining a driver’s licence for a period of 12 months.
This form of s 86A(2) has not changed since the applicant was sentenced in 2017. It operates as both a minimum and maximum period of disqualification, and the court has no discretion to impose a different order.[1] That view of s 86A(2) is reinforced by s 86A(4), which provides:
The disqualification prescribed by subsection (2) or (3) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.
[1] R v Sprecher (2015) 123 SASR 15, [25] (Kourakis CJ, with whom Gray and Stanley JJ agreed).
The second point to be made is that by operation of s 169B(1) of the Road Traffic Act 1961 (SA), the period of disqualification commences from the date of the order but is calculated from the date of the applicant’s release from prison.[2]
[2] See R v Koch [2015] SASCFC 31, [19] (Parker J, with whom Kourakis CJ and Bampton J agreed); R v Henderson (2023) 142 SASR 507, [105] (Nicholson AJA), where the issue was complicated by the operation of a home detention order.
169B—Effect of imprisonment on disqualification
(1)If, in sentencing a convicted person for an offence under this or any other Act, the court imposes a sentence of imprisonment (other than a suspended sentence) and orders that the person be disqualified from holding or obtaining a driver's licence for a specified period, the person will be taken to be so disqualified for a period commencing at the time the order is made and ending at a time calculated as if the specified period commenced—
(a)on the person’s release from a period of imprisonment served by the person that consists of or includes a period attributable to the court’s sentence; or
(b)if, on the person’s release from such a period of imprisonment, the person would, apart from this subsection, already be disqualified from holding or obtaining a driver’s licence or holds a driver’s licence that is suspended—on the expiration of that period of disqualification or suspension.
There is no discretion to order that the period of disqualification operate so that it expires before release from prison.[3]
[3] Trewren v The King [2023] SASCA 100, [65] (Livesey P, David JA and Nicholson AJA).
Insofar as the applicant complains about the period and timing of disqualification, those complaints are without merit.
Finally, and insofar as the applicant complains that the offence was not committed on a public road but on “private land”, that complaint is likewise without merit. Leaving aside for the moment the point that this complaint goes to conviction rather than sentence, s 86A(1) operates where the offending is committed “on a road or elsewhere”.[4]
[4] See also Freeman v Police (2006) 180 A Crim R 524, [17] (David J), “no matter where the vehicle is located”.
An extension of time?
An applicant seeking an extension of time is obliged to file an affidavit explaining the delay in the institution of an appeal. The applicant in this case has failed to comply with the requirements of the rules.[5]
[5] Joint Criminal Rules 2022 (SA), r 193.1(3)(c).
Whilst an extension may be granted without a satisfactory explanation for the delay if the applicant can demonstrate that the absence of an extension may lead to a miscarriage of justice,[6] that usually means that the evident merits of the proposed appeal will usually be relevant to the determination of an application for an extension of time.[7]
[6] Austin v The King [2023] SASCA 64, [5] (Dalton AJA, with whom Lovell and David JJ agreed), citing Gikas v Police [1999] SASC 139, [25]-[28] (Lander J).
[7] Lowe v The King [2025] SASCA 24, [37]-[40] (Livesey P, David JA and B Doyle AJA).
As there is no merit in the applicant’s proposed appeal grounds, there is no utility in granting an extension of time nor, for that matter, granting permission to appeal against sentence.
Conclusion
The applications for an extension of time and for permission to appeal are dismissed.