Siganto v The Queen [1998] HCA 74

High Court of Australia Gleeson CJ Gaudron, Gummow, Hayne and Callinan JJ Siganto v The Queen [1998] HCA 74

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of the Northern Territory and remit the matter to that Court for consideration of the issues raised by s 411(4) of the Criminal Code NT.

Cur adv vult

The following written judgments were delivered: —

3 December 1998 Gleeson CJ, Gummow, Hayne and Callinan JJ.

1. Following a trial in the Supreme Court of the Northern Territory the appellant was convicted of an offence against s 192(3) of the Criminal Code NT (the Code), the offence being that on 27 September 1994 at Darwin he had sexual intercourse with a woman without her consent.

2. The sentencing hearing took place before the trial judge, Angel J, on 27 August 1996. On 3 September 1996 the appellant was sentenced to imprisonment for nine years. Angel J fixed a non-parole period of six years and four months. An appeal against sentence to the Court of Criminal Appeal of the Supreme Court of the Northern Territory (Martin CJ, Kearney and Priestley JJ) was unsuccessful.

3. The appellant was granted special leave to appeal to this Court, but the grant was limited to the following grounds: (1) The Court of Criminal Appeal of the Supreme Court of the Northern Territory erred in law in failing to find that the learned sentencing judge had erred in characterising the appellant's plea of not guilty effectively as an aggravating factor. (2) The Court of Criminal Appeal of the Supreme Court of the Northern Territory erred in determining that the sentence was within range by reference to sentences imposed in recent years rather than by reference to the new statutory regime under the Sentencing Act NT.

4. The objective circumstances of the offence were serious. The appellant, a twenty-seven year old single man, was driving home on the evening of 27 September 1994 when he saw the victim, a young woman, waiting for a bus. He offered her a lift, and she got into his car. Against her wishes, he then drove to a secluded bush area, parked the car, dragged the victim from the car, punched her in the mouth, and subjected her to forcible sexual intercourse in circumstances of violence and degradation. He then drove off and left the victim, who walked to a nearby post office and telephoned the police. The major issue at the trial was identification.