Siganto v the Queen

[1998] HCA 74

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, GUMMOW, HAYNE AND CALLINAN JJ

COLIN JOSEPH SIGANTO  APPELLANT

AND

THE QUEEN  RESPONDENT

Siganto v The Queen (D9-1998) [1998] HCA 74
3 December 1998

ORDER

1. Appeal allowed.

1. 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).

On appeal from the Supreme Court of the Northern Territory

Representation:

D Grace QC with S J Cox for the appellant (instructed by Northern Territory Legal Aid Commission)

R S L Wild QC with A M Fraser for the respondent (instructed by Director of Public Prosecutions (Northern Territory))

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Siganto v The Queen

Criminal law – Sentencing – Factors to be taken into account – Whether distress occasioned by victim giving evidence an aggravating factor.

Criminal law – Sentencing – Whether sentence manifestly excessive – Parity principle.

Words and Phrases – "relevant circumstance".

Sentencing Act (NT), ss 5(1)(a), 5(2)(b), 5(2)(s), 54, 55(1), 58.
Criminal Code (NT), ss 192(3), 411(4).
Prisons (Correctional Services) Act (NT), s 92 (repealed).

1. GLEESON CJ, GUMMOW, HAYNE AND CALLINAN JJ. 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…