Bergman (a pseudonym) v The Queen

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.