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Bergman (a pseudonym) v The Queen

Bergman (a pseudonym) v The Queen

Case [2021] VSCA 148 3 June 2021

Constitutional Validity

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0203

NOAH BERGMAN (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the complainant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	MAXWELL P, KAYE and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 May 2021
DATE OF JUDGMENT:	3 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 148
JUDGMENT APPEALED FROM:	[2019] VCC 268 (Judge Carmody)

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CRIMINAL LAW – Appeal – Conviction – Rape – Reasonable belief in consent – Direction to consider ‘what the community would reasonably expect’ – Whether risk of diverting jury from deciding question – Jurors as members of community – No risk of being diverted – Directions complied with statutory requirements - Leave to appeal refused – Crimes Act 1958 ss 36A, 38, Jury Directions Act 2015 ss 12, 14, 47(3).

CRIMINAL LAW – Appeal – Sentence – Rape, threat to kill, using carriage service to menace or harass – Applicant sentenced to 6 years’ imprisonment with 4 years non-parole – Applicant 18 years old at time of offending – Aboriginal heritage – Disadvantaged background – Mild intellectual disability - Whether judge failed to apply principle of totality – Whether judge failed to take into account applicant’s Aboriginality and disadvantaged background – Whether sentence manifestly excessive – Appeal allowed – Resentenced to 4 years and 4 months’ imprisonment with non-parole period of 2 years and 4 months – R v Bugmy (2013) 249 CLR 571, R v Mills [1998] 4 VR 235, Azzopardi v The Queen (2011) 35 VR 43 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones	Ferraro Pruscino & Co
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P

KAYE JA:

On 6 December 2018, the applicant was convicted, by the jury empanelled on his trial, of one charge of rape. Before the commencement of the trial, the applicant had pleaded guilty to two other charges, contained in a separate indictment, of making a threat to kill (contrary to s 20 of the Crimes Act 1958) and of using a carriage service to menace, harass or cause offence (contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth)). After a plea on his behalf, the applicant was sentenced, on 7 March 2019, to a total effective sentence of 6 years’ imprisonment with a non-parole period of 4 years.

The applicant seeks leave to appeal against his conviction and sentence. Those applications were not filed until 24 September 2020, a significant period of time after the period fixed by s 279 of the Criminal Procedure Act 2009. Accordingly, the applicant has also made an application for an extension of time under s 315 of the Criminal Procedure Act. It is convenient to deal with that application first.

Application for an extension of time

The application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bergman (a pseudonym) v The Queen

Details

AGLC: Bergman (a pseudonym) v The Queen [2021] VSCA 148
Case: [2021] VSCA 148
Decision Date: 3 June 2021

CaseChat Overview and Summary

The appellant, Bergman, successfully appealed against his sentence for rape, threat to kill, using a carriage service to menace or harass. Bergman was sentenced to 6 years’ imprisonment with a non-parole period of 4 years. The appeal was heard by the Court of Appeal in Victoria. The appellant was 18 years old at the time of the offending, and he has Aboriginal heritage, a disadvantaged background, and a mild intellectual disability.

The appeal centred on the legality of the sentence imposed. The appellant argued that the judge failed to apply the principle of totality, did not adequately consider his Aboriginality and disadvantaged background, and that the sentence was manifestly excessive. The Crown argued that the sentence was within the appropriate range and that the judge had considered all relevant factors.

The Court found that the sentence imposed was manifestly excessive, as the judge had not applied the principle of totality and had not adequately considered the appellant’s background and personal circumstances. The Court also found that the judge had not appropriately considered the appellant’s Aboriginality and disadvantaged background. The appeal was allowed, and the appellant was resentenced to 4 years and 4 months’ imprisonment with a non-parole period of 2 years and 4 months.

The Court emphasised the importance of considering the principle of totality, and the need to take into account the offender’s personal circumstances, including their background and any disabilities. The Court also highlighted the importance of considering the offender’s Aboriginality, as a factor in determining an appropriate sentence. The final orders of the Court included the resentencing of the appellant to 4 years and 4 months’ imprisonment with a non-parole period of 2 years and 4 months.

Orders