Director of Public Prosecutions v Sozmen
[2022] VCC 1863
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01659
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ISHMAIL SOZMEN |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2022 | |
DATE OF SENTENCE: | 26 October 2022 | |
CASE MAY BE CITED AS: | DPP v SOZMEN | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1863 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Handle stolen goods – Armed Robbery – Intentionally cause injury – Theft
Sentence: Convicted and sentenced to a total effective sentence of 4 years and 2 months’ imprisonment, with a non-parole period of 3 years and 3 months.
Section 6AAA declaration: Conviction and total effective sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brustman KC | Office of Public Prosecutions |
| For the Accused | Mr R. Backwell | Ann Valos Criminal Law |
HER HONOUR:
1Ishmail Sozmen you have pleaded guilty to 5 indictable charges and three related summary offences.
2The charges are based upon offending on 29 October 2019. In the late afternoon you were out driving a stolen Toyota RAV4. This car had been stolen 11 days earlier, in Craigieburn. It is not alleged that you stole the car, but rather, that you were driving it knowing it was stolen. (Charge 1 – Handling Stolen Goods). A man named Cem Coskun was with you.
3At around 5.30 pm you pulled up in the RAV4 and stopped behind a Land Rover which was parked outside the Coles Click and Collect car park in Green Gully Road, Clyde. Parked a space or two away from the Land Rover was a black Holden Commodore ute, driven by Matthew Muzzolini. Mr Muzzolini was out of the car, talking to someone. He had left the keys in the car. Sam Eurell was sitting in the passenger seat of the Commodore with the window down, waiting for Mr Muzzolini.
4As I have said, you pulled up in the RAV4 behind the Land Rover, stopping suddenly. You got out of the driver’s side door immediately after you stopped. You were armed with a black steel baton, in your right hand.
5You went straight up to Mr Muzzolini hitting the back of his ute on the way, with the baton. You confronted him, yelling at him to come here, and to get out of the car. Mr Muzzolini retreated away from you and into the Coles.
6Mr Coskun also got out of the RAV4. He was also armed with a black baton or pole. Mr Coskun went up to the passenger side of the ute and confronted Mr Eurell, who was still sitting in the car with the door closed and window down.
7Mr Coskun struck towards the car and Mr Eurell, hitting him on the arm with the baton.
8You then approached Mr Eurell, and struck the Commodore with your baton. You and Mr Coskun told Mr Eurell to get out of the car, and one of you opened the car door. Both of you struck at Mr Eurell, he was hit on the arm forearm, which caused bruising, and his thumb received a laceration. Mr Coskun was found guilty of intentionally causing injury to Mr Eurell and you have pleaded guilty to the same charge in respect to the injuries you inflicted.
9You and Mr Coskun moved to the driver’s side and Mr Eurell made his escape, also going into the Coles.
10You got into the driver’s seat of the Commodore and drove it away, down Green Gully Road. The theft of this car, following the acts of violence whilst armed, gives rise to Charge 2, Armed Robbery.
11Having stolen the Commodore from Mr Muzzolini in this way you drove to a nearby address in Clyde. You went into a home there at about 5.39 pm and left again at 5.57 pm. These times were taken from CCTV which captured your entry and exit.
12Meanwhile, Mr Coskun had taken over driving the RAV4. At 6.22 pm you pulled over in another street in Clyde, in the Commodore, which had run out of petrol, and Mr Coskun stopped behind. You and he pushed the Commodore onto the nature strip.
13You then rummaged through the Commodore, taking Mr Muzzolini’s wallet, and putting it in your bum-bag, giving rise to Charge 5, theft of Mr Muzzolini’s wallet.
14You abandoned the Commodore and got back into the driver’s seat of the RAV4. You drove off, with Mr Coskun in the passenger seat.
15An hour or so later, at 7.38 pm you pulled into a BP petrol station, in the stolen RAV4. You filled that car with petrol, whilst Mr Coskun filled a red jerry can at another petrol pump. You both got back into the RAV4 and you drove away, without either of you paying for the petrol. This gives rise to Charge 4, theft.
16Later that evening the stolen RAV4 was spotted by police in Waterloo Crescent, St Kilda. You were in the driver’s seat and Mr Coskun in the passenger seat. You were arrested and when the vehicle was searched police found your bum-bag which contained Mr Muzzolini’s wallet, the keys from the Commodore, and $1,485 cash. The red jerry can with petrol was also found in the RAV4. You also had a pocket knife in your possession which is the subject of summary charge 9, and the money is the subject of summary charge 12.
17When you were interviewed by the police regarding this matter, you said that you had been in possession of the RAV4 for 2 to 3 days, and that you knew the person from whom the Commodore had been stolen as Matt.
18The prosecution noted that this was clearly frightening offending, not only towards Mr Eurell and Mr Muzzolini, but also to the people nearby. You used a baton to effect the robbery of the car and when inflicting injury on Mr Eurell. You offended in company with Mr Coskun. This remains the case even though he was acquitted in respect to the taking of the car.
Personal Circumstances
19At the time of the offending you were 35 years old, and are now 38. You were born in Australia. Your parents are originally from Turkey and migrated to Turkey when you were a year old and resided there for 9 years.
20You grew up in a close and loving family, you report having little challenges in your childhood at home however, you found school challenging.[1]
[1] Psychological Assessment Report by Ms Perera, psychologist, dated 14 July 2022, paragraph 4 (Report by Ms Perera)
21Your schooling was split between Turkey and Australia. You report struggling academically at school following your return to Australia, with difficulty reading and writing. You left school you in Year 10.
22Ms Perera, who prepared a psychological report for your plea, considered that although you did not receive a formal diagnosis of dyslexia, it is probable that you suffered from a specific learning and reading disorder in your developmental years, and that the impact of the learning disorder still persists.[2]
[2] Report by Ms Perera [8]
23Difficulty at school influenced your decision to follow your in your elder brother’s footsteps and join the Turkish army for 15 months in 2004. You report that during your time in the army you were exposed to rough treatment and physical abuse, and other traumatic experiences that you were not willing or able to describe.[3]
[3] Report by Ms Perera [12], [43]
24You returned to Australia after your service and began to work at your family’s kebab shop. You then had a two year apprenticeship working in carpentry, which you did not complete. You have additional work history as a brick layer between 2011 and 2015.[4]
[4] Report by Ms Perera [14]
25You married in 2011, and have two daughters. You are now separated and report you hold no blame towards your ex-wife as you were “using drugs at the time.”[5] Your reporting about the breakdown of that relationship is inconsistent.[6] You regret not being able to see your daughters but understand that this is because of your actions, and that you need to sort yourself out, before you can re-establish a relationship with them.[7]
[5] Report by Ms Perera [16]
[6]Report by Dr Anderson, clinical neuropsychologist, dated 29 May 2020 page 4 (Report of Dr Anderson), compare Report by Ms Perera [16]
[7]Report by Ms Perera [16]
26A reference was provided by your past employer Mr Beswick who reported that you performed your role well he noted that he is willing to offer you work in the future. He was impressed with your attitude and reports you get along well with your co-workers.
Mental State
27A forensic report was provided by Dr Anderson, a neuropsychologist, who assessed you on 29 May 2020. A psychological report was provided by Ms Perera who assessed you first on 22 June 2022 then again on 6 July 2022.
28Dr Anderson noted that in April 2020 your GP made a note that you were experiencing symptoms associated with depression and PTSD. A report from a psychologist in April 2020 stated that from April 2011 you had engaged in six sessions with a psychologist, and that it had been recommended you engage in longer term therapy to make real progress in stabilising your mental health. It was also recommended you take part in a residential rehabilitation program for drugs and alcohol.[8] You told Dr Anderson that whilst you accepted there was probably a link between the traumatic events in your life and the emotional responses which you had not addressed, and your drug and alcohol use, you also explained that you had never meaningfully engaged with a psychologist in the past. You told her that you were keen to engage with psychological services in the future.[9]
[8]Report by Dr Anderson, page 3
[9]Ibid
29Dr Anderson summarised your presentation by observing that due to the multiple distressing events in your adult life you have difficulty managing your emotions and so you use drugs and alcohol to cope.[10] You have poor emotional insight and perhaps underlying anti-social attitudes, which contribute to your drug taking and risk taking behaviour when suffering from emotional distress. You see yourself as a victim of circumstances, rather than taking ownership of the choices that have led you to where you are.[11]
[10]Report Dr Anderson, page 6-7
[11]Report by Dr Anderson, page 7
30Dr Anderson diagnosed an adjustment disorder with mixed disturbance of emotions and conduct, consequent upon your exposure to a number of traumatic events in your life.
31Ms Perera administered the Post Traumatic Stress Disorder Checklist and you demonstrated clinical features of Post Traumatic Stress Disorder (PTSD). She is of the opinion that at the of the offending before me, you were suffering from PTSD.[12] Her report highlights that you re-experience events from the army through unwanted flashbacks which results in emotional distress and you attempt to cope with drugs and alcohol.[13]
[12] Report Ms Perera, [48]
[13] Report by Ms Perera, [24]
Drugs and Alcohol
32You grew up in a close family and Ms Perera notes you had a particularly close bond with your brother. You reported to her that you began to heavily misuse alcohol after your brother’s serious car accident in 2008, in which he was rendered quadriplegic, to cope with the shock.[14] You report that this had a negative impact of your employment and eventually led to the loss of your license.[15]
[14] Report by Ms Perera, [29]
[15] Report by Ms Perera [46]
33Following your mother’s death in 2010, this coping mechanism escalated to illicit substances. You report that you began using methamphetamine in 2012 when you were 28 and also cocaine to deal with negative emotions in your life. Ms Perera concluded that method of coping with negative emotions led to the development of a substance abuse disorder.[16] Dr Anderson concluded that you meet the DSM-V diagnostic criteria for stimulant use disorder however, at the time of her interview with you in 2020 this appeared to be in remission in a controlled environment.[17]
[16] Report by Ms Perera, [30]
[17] Dr Anderson report, page 6
34Ms Perera’s report notes that you have developed insight about substance abuse and a willingness to manage your PTSD and emotional experiences that led you to substance abuse.[18]
[18] Report by Ms Perera, [49]
35A letter from the Uniting Alcohol and Other Drug Mental Health Services at Port Phillip Prison confirmed your attendance and active participation in a 40 hour alcohol and other drug program. The letter stated that you had participated in all the sessions of that program to the date of the letter. The letter referred to your motivation to engage in treatment including discussions around the psychological triggers in your past and understanding that you need support through the process.[19]
[19] Letter from Alcohol and Other Drug Mental Health Services Port Phillip Prison, dated 25 July 2022
Criminal Record
36Your criminal record commences in 2003, with a charge of recklessly causing injury. In January 2004 you were before the Magistrates’ Court again, for offences of dishonesty, and in October of that year for driving offences. Your next court appearance is in June 2006, for having failed to comply with a CCO you received in January 2004. As I have noted earlier in the interim, you were in Turkey, in the Army.
37In 2006, 2007 and 2009 you were before the courts again for driving and dishonesty offences. In September 2010 you received an 8 month ICO for recklessly causing serious injury and assault, and you were dealt with for breaching that order in February 2012. More driving offences were before the court over 2012, 2014, and 2015. You repeatedly breached the sentencing orders and were brought back for re-sentencing. Mental health assessment and treatment was first put as a condition on a CCO in 2009, and again in 2012, and 2015. Depression was noted as a custody management issue in 2015, when you were sentenced for contraventions of a family violence intervention order for recklessly causing injury, making threats to kill and other offences.
38In 2018 your first drug offence appears on your criminal record, which charges of possession of methylamphetamine ad GHB. Also in 2018 there was another charge of contravention of a family violence intervention order, assaults with and without a weapon, more dishonesty offences. There was also a prohibited person possessing a firearm and many driving offences. I counted 17 charges of driving whilst disqualified or suspended.
39I will set out the chronology of offending and court hearings before and since the offending on 29 October 2019.
·8 Oct 2018 – A County Court Appeal was allowed and you were sentenced to 1 year imprisonment, to be followed by CCO of 5 years . There was an intensive compliance period of 6 months ordered. That related to offending committed in 2017. The conditions of the CCO included 100 hours of community work and conditions for treatment in respect to drugs and mental health.
·30 Oct 2018 – At Heidelberg Magistrates’ Court you were sentenced for assault with weapon, driving offences and you received a total of six months’ imprisonment concurrent with the sentence that had been imposed on the County Court Appeal.
·30 August 2019 – You were released from custody
·29 October 2019 – Two months later you committed this offending and were remanded in custody.
·4 June 2020 – You were bailed on these matters.
·21 October 2020 – You committed further offending, being possession of methylamphetamine, handling stolen goods, driving offence and breaching bail.
·6 November 2020 – You were sentenced to 28 days.
·15 Oct 2021 – You were arrested on new matters alleged to have been committed that day, those charges are still on foot.
·5 November 2021 – On breach of the CCO imposed in the County Court on the appeal, you were sentenced to a total effective sentence of 3 years and 2 months, with a non-parole period 2 years, 326 days of pre-sentence detention were declared. Your earliest release date is 23 January 2023, and sentence will lapsed 24 December 2023.
·21 April 2022 – You were arraigned on these charges.
40You told Dr Anderson, in 2020, that you were overwhelmed by the pressures of complying with the CCO whilst you were you still suffering from emotional distress and trying to maintain work.[20]
[20]Report by Dr Anderson, page 6
41Whilst you have been sentenced on other matters since this offending, some of those sentences were for offending which pre-dated this offending, and for which you were on a CCO for at the time. The sentences I will impose today will run at the same time as the balance of the sentence which was imposed on you on 5 November 2021.
Matters Raised in Mitigation
42The strongest factor in mitigation on your plea is that you have pleaded guilty. A plea of guilty generally gives rise to mitigation of sentence because of its utilitarian value to the courts and the administration of justice. A plea may also be an indicator of remorse for the offending. Whilst your plea was entered shortly before the trial was to commence, both parties submitted that I should not treat it as a late plea, as previously you had faced a charge of aggravated car-jacking, not armed robbery.
43The weight in mitigation by reason of your pleas of guilty is much greater, in the context of the COVID-19 pandemic and the effect of that on the operations of the Court.
44As to remorse, Ms Perera said “He had fair insight into his offending behaviour, specifically the influence of his drug use on the events, as well as the negative consequences of his actions.”[21] This falls short of an expression of remorse or contrition.
[21]Report by Ms Perera, [34]
45Another matter in mitigation associated with the pandemic is that your time on remand, and serving the sentences currently in force and which I will impose, has been negatively affected and may still be negatively by the pandemic. Over 2021 and into 2022 there have been stringent requirements in prisons and remand centres, with lockdowns, restrictions of movement, quarantines, and reduced activities and courses.
46Defence counsel submitted that your culpability for these offences was reduced due to the impact of your mental health. He noted Ms Perera’s opinion that:[22]
“Mr Sozmen continued to suffer from PTSD which led to a reduction in emotional regulation and increase in impulsivity, compounded by a reduction in clear and reasoned, consequential thinking. This was exacerbated by his substance abuse at the time.”
[22]Report by Ms Perera, [48]
47Dr Anderson had also explored the links between your psychological profile, drug and alcohol abuse, and offending. As I have said earlier, you use alcohol and drugs to deal with your emotional distress, leading to criminal behaviour.
48I accept that you turned to drugs in your late 20s as a response to your emotional distress about your brother, mother, and your time in the army in Turkey. I have heard no explanation as to why you engaged in the offending on the day for which I must sentence you, and so I find it impossible to make a finding as to whether your offending was motivated by emotional distress, drugs, both, or neither. In view of the absence of an explanation I cannot make a finding that your moral culpability was reduced by reference to your mental health.
49It was also submitted that your mental health would make your time in custody more onerous, with defence counsel noting Ms Perera’s opinion at paragraph 50, where she said “Mr Sozmen would find continued incarceration onerous due to mental health issues, including his anxiety and PTSD.”[23] Dr Anderson, in May 2020 had said:
I was requested by Mr Sozmen’s legal representation to provide an opinion regarding the impact of a prolonged period in custody upon Mr Sozmen’s mental state and ongoing rehabilitation. It does not appear that a prolonged period in custody is likely to have an immediate devastating impact upon Mr Sozmen’s mental health. However, he has significant difficulty managing his emotions in a positive and adaptive manner. As such, it is considered highly likely that a prolonged period in custody will lead to a further deterioration in his mood state and contribute to a further sense of hopelessness regarding his circumstances.[24]
[23]Report by Ms Perera, [50]
[24]Report by Dr Anderson, page 8
50I will mitigate your sentence to a moderate extent on the combined basis that you will find prison rather more onerous than a person without your mental health issues, and that prison will have a negative impact on your mental health.
Other Sentencing Considerations
51This offending was by no means a low level instance of an armed robbery. As I have noted you offending in company, both of you were armed, and you inflicted injury on Mr Eurell.
52General deterrence, denunciation and protection of the community are all factors which carry real weight in sentencing you, particularly on the charges of armed robbery and intentionally causing injury.
53Furthermore specific deterrence carries significant weight. Your offending history is poor, and in view of the difficulties you will face in addressing the causes of your offending I consider your prospects of rehabilitation are guarded, at best.
54The offence of Armed Robbery is a category 2 offence, if committed by the offender in company with one or more other persons. This was not addressed on the plea hearing, but in any event it was not submitted that a sentence other than imprisonment with a non-parole period would be the result for you.
55The sentences are:
· Charge 1 , handling, six months;
· Charge 2, armed robbery, three years and six months;
· Charge 3, intentionally causing injury, six months;
· Charge 4, theft of the petrol, one month;
· Charge 5, theft of the wallet, one month.
· On the Summary Charges
§possession of controlled weapon, being the pocketknife, one month;
§dealing property suspected of being the proceeds of crime two months; and
§driving whilst disqualified, six months.
56The orders for cumulation are as follows.
· The sentence of three years and six months on the armed robbery is the base.
· Two months of the sentence on Charge 1,
· two months on the sentence on Charge 3,
· one month of the sentence on Charge 4,
· one month of the sentence on the proceeds charge and
· two months of the sentence on the drive whilst disqualified,
are to be served cumulatively upon each other and on the sentence on Charge 2. By my calculations that achieves a total effective sentence of four years and two months.
57As I noted earlier, on 5 November 2021 you were sentenced, to a total effective sentence of 3 years and 2 months, with a non-parole period of 2 years. Your earliest release date is 23 January 2023, and that sentence will lapse on 24 December 2023.
58The sentences I have imposed will start today, although you will receive credit for the 221 days that you have as pre-sentence detention. I direct pre-sentence detention be entered into the records of the court.
59As you are currently serving a non-parole period, I must pursuant to s 14 of the Sentencing Act, set a new non-parole period. That new combined non-parole period is 3 years and 3 months commencing from today.
60Pursuant to s6AAA I state that if you had not pleaded guilty I would have sentenced you to five years and six months' imprisonment with a non-parole period of three years and six months.
61On your licence, pursuant to s89(4) I must make an order on your licence as you have been convicted of an offence of armed robbery which involves stealing a motor vehicle. The default period is three months and I will not make any other order than that, so the period of disqualification will be three months.
62I will make the forfeiture order by consent but not make the disposal order.
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