New South Wales Court of Criminal Appeal CITATION: HOUSSENLOGE v R [2010] NSWCCA 9 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 5 February 2010 JUDGMENT OF: Grove J at 1; Simpson J at 7; RA Hulme J at 8 EX TEMPORE JUDGMENT DATE: 5 February 2010 DECISION: Appeal against sentence allowed. Remitted to District Court for resentence. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Procedural regularity - Lack of co-ordination between facts supplied to sentencing court and counts in indictment - Concession concerning procedural fairness CATEGORY: Principal judgment PARTIES: Mark Robert HOUSSENLOGE - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2008/5975 COUNSEL: M Dennis - Applicant D Arnott SC - Respondent/Crown SOLICITORS: S O'Connor - Legal Aid Commission - Applicant S Kavanagh - Solicitor Public Prosecutions - Respondent/Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/5975 LOWER COURT JUDICIAL OFFICER: Woods ADCJ LOWER COURT DATE OF DECISION: 13 October 2008 IN THE COURT OF CRIMINAL APPEAL CCA 2008/5975 GROVE J SIMPSON J RA HULME J 5 February 2010 Mark Robert HOUSSENLOGE v R Judgment 1 GROVE J: At the commencement of the hearing of this appeal, without objection by the Crown, counsel for the applicant sought to add a second ground which stated that the sentencing proceedings miscarried due to an absence of procedural fairness. Senior Counsel for the Crown candidly acknowledged that there was some substance in this ground. 2 It suffices for present purposes to make brief reference to the procedural problem with occurred in the court below. His Honour was provided with a scheduled statement of facts as well as the indictment. Subsequent investigation has revealed that the facts upon which his Honour sentenced the applicant were not necessarily assigned to the appropriate counts of the indictment. The indictment itself contained a large number of counts and asserted crimes of a sexual nature upon two victims over a considerable period of time. 3 Understandably, the learned sentencing judge assessed sentences for each of the counts in the indictment and made certain orders for cumulation from time to time. As I have indicated, it appears now to be common ground that, at least in some instances, his Honour was imposing a sentence upon a count in the indictment upon the basis of facts which were not put before him to support that particular count. One can also observe, simply in passing, that there may be another problem in respect of some matters where it appears fixed terms were imposed for offences where standard non-parole periods had been prescribed and there is a statutory inhibition on that. 4 Given all those circumstances, it appears inevitable that the matter must be properly considered as the applicant is entitled to procedural regularity in dealing with these matters. 5 The Crown has indicated that it may well be in the outcome that the same or a similar total result will emerge and it is not appropriate to comment upon that at this stage, beyond saying that this court is giving no indication one way or the other in relation to that. 6 However, having regard to what I have said, it is inevitable that ground two must be upheld. I propose that the application for leave to appeal against sentence be granted, the appeal allowed, the sentences imposed in the District Court quashed and the matter be remitted to the District Court for re-sentence 7 SIMPSON J: I agree 8 RA HULME J: I also agree 9 GROVE J: The orders of the court therefore will be as I have proposed. ********** 22/02/2010 - Woods DCJ should read Woods ADCJ on coversheet - Paragraph(s) see coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.