Citation: HOUSSENLOGE v R [2010] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 5 February 2010
Judge(s): Grove J, Simpson J, RA Hulme J
Background
The applicant had been sentenced in the District Court following conviction on a multi-count indictment involving sexual offences against two victims over a considerable period. The sentencing judge, Woods ADCJ, was provided with both a scheduled statement of facts and the indictment itself, which contained a large number of counts.
On appeal, a procedural irregularity emerged. Subsequent investigation revealed that the facts placed before the sentencing judge had not been properly matched to the corresponding counts in the indictment. In at least some instances, the judge had sentenced the applicant on individual counts by reference to facts that did not actually support those particular counts.
A second ground of appeal, raising absence of procedural fairness, was added at the commencement of the hearing without objection from the Crown. Senior Counsel for the Crown candidly conceded there was substance in that ground.
Legal Issues
- Whether the sentencing proceedings miscarried due to a lack of procedural fairness arising from the mismatch between the statement of facts and the counts in the indictment
- Whether fixed terms imposed for offences carrying prescribed standard non-parole periods were lawfully imposed
Decision
The Court accepted the Crown's concession and upheld the second ground of appeal. The core problem was that the sentencing judge had imposed sentences on individual counts by reference to facts that were not before the court to support those specific counts. The Court held that the applicant was entitled to procedural regularity, and this had not been achieved below.
Grove J also noted, in passing, a further potential problem: fixed terms appeared to have been imposed for some offences where standard non-parole periods had been prescribed by statute, which carries a legislative prohibition on the imposition of fixed terms alone. The Court did not decide this separate issue but flagged it as a matter requiring attention on resentence.
The Court declined to offer any indication of what the total sentencing outcome should be on resentence. The Crown observed that the overall result might ultimately be the same or similar, but the Court expressly reserved that question entirely for the resentencing court.
Orders Made
- Leave to appeal against sentence granted
- Appeal allowed
- Sentences imposed in the District Court quashed
- Matter remitted to the District Court for resentence
Key Takeaways
- An applicant is entitled to procedural regularity in sentencing, including that the facts placed before a sentencing court properly correspond to the specific counts on which sentence is being imposed.
- Where a statement of facts and an indictment are not properly coordinated, and a sentencing judge imposes sentences on individual counts by reference to mismatched facts, a material procedural unfairness arises sufficient to vitiate the entire sentencing exercise.
- The Court of Criminal Appeal expressly withheld any indication of what the appropriate total sentence should be, leaving that question entirely to the resentencing court.
- A separate issue arose regarding whether fixed terms can lawfully be imposed for offences carrying prescribed standard non-parole periods. The Court flagged a statutory inhibition on that practice without resolving it, noting it would require consideration on resentence.
- In upholding the appeal, the Court noted the Crown's candid concession on the procedural fairness ground, which the Court accepted without objection.
Legislation and Cases Referenced
Legislation:
- Provisions governing standard non-parole periods and fixed terms (specific Act not identified in the judgment text)
Cases:
- No cases were cited in the judgment text