Brooks v The King

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.