Ishmail Sozmen v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0017

ISHMAIL SOZMEN	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2023
DATE OF JUDGMENT:	11 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 215
JUDGMENT APPEALED FROM:	DPP v Sozmen [2022] VCC 1863 (Judge Dalziel)

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to five indictable offences and three summary offences – Indictable charges of armed robbery, intentionally causing injury, theft, handling stolen goods – Sentenced to total effective sentence of 4 years and 2 months’ imprisonment with non-parole period of 3 years and 3 months – Whether error in failing to apply principle of totality in view of prior periods of custody – Whether error in failure to moderate sentence for delay – Whether error by treating applicant being armed as aggravating factor of armed robbery – Whether error in rejecting applicability of first Verdins principle – Whether sentence manifestly excessive – Each ground has no real prospect of success – Leave to appeal sentence refused.

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Counsel
Applicant:	Mr C Hooper
Respondent:	Ms M Mahady
Solicitors
Applicant:	Ann Valos Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA:

Introduction

The applicant, then 35 years of age, was arrested in St Kilda on 29 October 2019 following the armed robbery of a motor vehicle and various other indictable offences and related summary offences. He entered a plea of guilty and was sentenced by a judge of the County Court three years later, on 26 October 2022, as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Handle stolen goods[1]	15 years’ imprisonment	6 months’ imprisonment	2 months’ imprisonment
2	Armed robbery[2]	25 years’ imprisonment	42 months’ imprisonment	Base
3	Causing injury intentionally[3]	10 years’ imprisonment	6 months’ imprisonment	2 months’ imprisonment
4	Theft[4]	10 years’ imprisonment	1 month’s imprisonment	1 month’s imprisonment
5	Theft[5]	10 years’ imprisonment	1 month’s imprisonment	N/A
Related summary offences
9	Possess controlled weapon without lawful excuse[6]	120 penalty units/1 year’s imprisonment	1 month’s imprisonment	N/A
12	Deal with property suspected of being proceeds of crime[7]	240 penalty units/2 years’ imprisonment	2 months’ imprisonment	1 month’s imprisonment
13	Drive whilst disqualified[8]	240 penalty units/2 years’ imprisonment	6 months’ imprisonment	2 months’ imprisonment
Total effective sentence		4 years and 2 months’ imprisonment
Non-parole period		3 years and 3 months’ imprisonment
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991		221 days
Section 6AAA statement		5 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months’ imprisonment
Other relevant orders		Forfeiture order License disqualification for period of 3 months from 26/10/2022

[1]Contrary to s 88 of the Crimes Act 1958.

[2]Contrary to s 75A of the Crimes Act 1958.

[3]Contrary to s 18 of the Crimes Act 1958.

[4]Contrary to s 74 of the Crimes Act 1958.

[5]Contrary to s 74 of the Crimes Act 1958.

[6]Contrary to s 6(1) of the Control of Weapons Act 1990.

[7]Contrary to s 195 of the Crimes Act 1958.

[8]Contrary to s 30(1) of the Road Safety Act 1986.

The applicant sought leave to appeal his sentence. His proposed grounds of appeal are as follows:
Ground 1: The total effective sentence and non-parole period offend the principle of totality when considered in combination with the sentences previously imposed on Mr Sozmen.
Ground 2: Her Honour erred in failing to have regard to the applicability of delay in determining the appropriate sentence.
Ground 3: Her Honour erred in determining that the offence of Armed Robbery was aggravated by the use of weapons and the infliction of injuries on Mr Eurell.
Ground 4: Her Honour erred in finding that the absence of a proffered explanation for the offending in question, it was not possible to determine the extent of Mr Sozmen’s moral culpability in line with the principles in R v Verdins (2007) 16 VR 269.
Ground 5: Her Honour erred in imposing a non-parole period and head sentence that were manifestly excessive having regard to all of the circumstances.
These reasons deal solely with the question whether leave to appeal should be granted.[9] For the reasons set out below, I refuse leave to appeal on any of the proposed grounds.
[9]Criminal Procedure Act2009, s 315(1)(b).

Facts

The offending

A brief summary of the applicant’s offending is as follows. On 28 October 2019, the applicant and his co-accused, Cem Coskun, were driving a stolen Toyota RAV4 in Clyde. The prosecution did not allege that the applicant stole the vehicle, but rather that he knew it was stolen. This formed the basis of charge 1 (handling stolen goods). The applicant and Mr Coskun were each armed with a black steel baton.
Around 5:30 pm the applicant parked the RAV4 in the Coles supermarket car park on Green Gully Road, Clyde. A Holden Commodore utility, driven by Matthew Muzzolini, was parked in close proximity. Mr Muzzolini was standing beside the Commodore talking to a woman in a car parked in an adjacent parking space. The keys to the Commodore were in the car. Sam Eurell was sitting in the front passenger seat of the Commodore with the window down.
The applicant got out of the RAV4 and confronted Mr Muzzolini, hitting the back of the Commodore with the steel baton as he did so. Mr Muzzolini fled inside the Coles supermarket. Mr Coskun got out of the vehicle and approached Mr Eurell, still sitting in the Commodore, and struck his arm with the baton. Both the applicant and Mr Coskun then demanded that Mr Eurell get out of the vehicle. Both struck him with their respective batons, causing injury to his forearm and thumb (charge 3). Once Mr Eurell had alighted from the Commodore, the applicant got into the driver’s seat of the Commodore while Mr Coskun returned to the RAV4. The applicant then drove the Commodore from the scene down Green Gully Road. This formed the basis of charge 2 (armed robbery).
The applicant was captured on CCTV entering a property in Clyde at 5:39 pm before leaving at 5:57 pm. At 6:22 pm, the applicant pulled the Commodore over in another street in Clyde when it ran out of fuel. Mr Coskun stopped behind the Commodore in the RAV4. The two men pushed the Commodore onto the nature strip before searching it for any valuables. The applicant located and stole Mr Muzzolini’s wallet, forming the basis of charge 5 (theft).
Both men then left the scene in the RAV4. At 7:38 pm, they stopped at a BP service station. The applicant filled the RAV4 with petrol while Mr Coskun filled a jerry can at another petrol pump. Both men then got back in the RAV4 and drove away without paying for either amounts of fuel, forming the basis of charge 4 (theft).
Later that evening, Victoria Police located the RAV4 in Waterloo Crescent, St Kilda. When intercepted, the applicant was driving the vehicle and Mr Coskun was in the passenger seat. Both men were arrested. Police searched the vehicle and the men’s belongings. In the applicant’s bag they located Mr Muzzolini’s wallet, the keys to the abandoned Commodore, and $1,485 cash (forming the basis of summary charge 12 — deal with property suspected of being proceeds of crime). The applicant also possessed a pocket knife (forming the basis of summary charge 9 — possess controlled weapon without lawful excuse).
In his police interview the applicant admitted to possessing the RAV4 for ‘two to three days’, and that he knew that the person from whom he stole the Commodore was named ‘Matt’. The applicant was remanded in custody on 29 October 2019 where he remained for 221 days until released on bail on 4 June 2020.
The applicant was arraigned on the charges on 22 April 2022. As already stated, he pleaded guilty and was sentenced on 26 October 2022.

Reasons for sentence

The judge outlined the facts of the offending. Her Honour accepted the prosecution submission that this was ‘clearly frightening offending’ to both the victims and the onlookers. Regarding the level of seriousness of charge 2 in particular, the judge later remarked that it was ‘by no means a low level instance of armed robbery’.[10]
[10]Reasons, [51].
Turning to personal matters relating to the applicant, the judge noted that he was 35 years old at the time of offending and 38 at the time of sentence. Although born in Australia, his Turkish parents took him to Turkey where he resided from the age of 12 months until nine years old. He grew up in a close and loving family but found school challenging. He left school in Year 10 having had some difficulty reading and writing. He followed his older brother’s footsteps and joined the Turkish army for 15 months in 2004, then aged about 22.
Upon returning to Australia he had work in the family’s kebab shop, a two-year apprenticeship in carpentry and some additional work as a bricklayer between 2011 and 2015. He married in 2011, having two daughters with his wife, but separated five years later due, as he acknowledged, to his drug use at the time. Because of his actions he was unable to see his daughters which, the judge noted, he regrets.
In the context of discussing the applicant’s drug and alcohol use, the judge referred to the fact that his elder brother had been rendered a quadriplegic after a serious car accident in 2008, and his mother had died in 2010.
The judge considered the applicant’s mental health history. She had available to her the reports of a clinical neuropsychologist, Dr Anderson, dated 29 May 2020, and a forensic psychologist, Ms Perera, dated 14 July 2022. Dr Anderson noted the applicant’s symptoms associated with depression and post-traumatic stress disorder (‘PTSD’). Dr Anderson observed that the applicant had difficulty managing his emotions after multiple distressing events in his adult life and had turned to drug use and alcohol to cope. The applicant saw himself as a victim of circumstances rather than taking ownership of the choices that lead him to where he was. Dr Anderson diagnosed an adjustment disorder with mixed disturbance of emotions and conduct. Ms Perera assessed the applicant as demonstrating clinical features of PTSD, referring in particular to flashbacks from his experience in the Turkish army. She was of the opinion that he was suffering from PTSD around the time of the offending.
The judge recounted the applicant’s history of drug and alcohol abuse. The applicant reported that he began to heavily misuse alcohol after his brother’s accident in 2008, and then took up other illicit substances after his mother’s death in 2010. He began using methamphetamine in 2012 and also cocaine. The judge noted Ms Perera’s conclusion that the applicant’s method of coping with negative emotions led to the development of a substance abuse disorder. In this context, the judge took account of a letter from a prison health service that confirmed the applicant’s participation in a 40‑hour alcohol and drug program and referred to his motivation to engage in treatment including by gaining understanding of his particular psychological triggers.
Turning to the applicant’s criminal record, the judge set out in some detail a summary of the 29 pages of the applicant’s criminal history commencing in 2003. It featured charges of recklessly causing injury (2003), numerous offences for dishonesty, recklessly causing serious injury and assault (2010), drug offences first appearing in 2018, contravention of a family violence intervention order, assaults with and without a weapon, more dishonesty offences in 2018, being a prohibited person possessing firearm, and many driving offences including 17 charges of driving whilst disqualified or suspended.
The judge set out a chronology of some of his more recent offending and court hearings both before and since the relevant offending on 28 October 2019. It is useful to reproduce that chronology because of its relevance to the first proposed ground of appeal:[11]
[11]Reasons, [39].
•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.
Having set out those details, the judge noted that the applicant had been sentenced on other matters since the subject offending on 28 October 2019. Some of those sentences were for offending that predated the subject offending and for which the applicant was on a community correction order (‘CCO’) at the time of the subject offending. The judge explained she would impose a sentence that would run ‘at the same time as the balance of the sentence which was imposed on you on 5 November 2021’.
Turning to matters in mitigation, it was the judge’s view that the strongest factor in mitigation was that the applicant had pleaded guilty. Although the plea was only entered shortly before the trial was due to commence, the judge was persuaded that it should not be treated as a late plea because of a change of the charge on which the applicant was indicted. The weight in mitigation accorded to the plea was greater due to the context of the COVID-19 pandemic. Although it was noted that the psychologist, Ms Perera, described the applicant as having ‘fair insight’ into his offending behaviour, in the judge’s view this fell short of an expression of remorse or contrition. The judge accepted that the pandemic had negatively affected the conditions in which the applicant served time on remand and would serve on sentence, citing the specific types of restrictions experienced.
The judge next considered the applicant’s submission that his moral culpability for his offences was reduced due to the impact of his mental health, relying on Ms Perera’s view about his suffering of PTSD and Dr Anderson’s view of a link between his poor coping behaviours, his drug and alcohol misuse and his offending. However, the judge found that the absence of any explanation as to why he had engaged in the particular offending for which he was being sentenced made it impossible to make a finding whether his offending on that day was motivated by emotional distress, drugs, both, or neither. Thus, the judge said that she was unable to make a finding that his moral culpability was reduced by reference to his mental health. Nonetheless, her Honour was prepared to mitigate his sentence to a moderate extent because of the combined prospect that he would find prison more onerous than a person without his mental health issues, and that prison will have a negative impact on his mental health.
In short, the judge was not prepared to reduce the applicant’s moral culpability by reference to the first principle of R vVerdins,[12] but was prepared to moderate the sentence by the application of the fifth and sixth principles.
[12]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
The judge thought that general deterrence, denunciation and community protection were all factors which carried ‘real weight’ and that specific deterrence carried ‘significant weight’ due to his poor offending history. Because of difficulties he would face in addressing the causes of his offending the judge considered his prospects of rehabilitation were guarded, at best.

Proposed Ground 1 (totality)

Three principles need to be stated.
First, s 18(1) of the Sentencing Act 1991 requires the court that is sentencing an offender to a term of imprisonment to reckon, as a period of imprisonment already served, any period during which the offender was held in custody in relation to proceedings for the offence or arising from those proceedings.
Secondly, a court also has discretion, when sentencing an offender to a term of imprisonment, to moderate that term by having regard to what is sometimes called ‘dead time’, being time served on remand which, with the benefit of hindsight, should not have been served at all — usually referred to as Renzella time.[13] Where such time is to be taken into account, the court need not reduce the sentence by the precise amount of ‘dead time’[14] and any such allowance should be taken into account at the earliest opportunity and not left to a later sentencing court.[15]
[13]R v Renzella (1997) 2 VR 88, 96–7 (Winneke P, Charles, Callaway JJA) (‘Renzella’); Karpinski v The Queen [2011] VSCA 94, [28], [29] (Tate JA, Weinberg and Mandie JJA agreeing) (‘Karpinski’). Examples include time spent on remand on a charge later withdrawn, or for which the person was acquitted, when the person was neither serving another sentence nor on remand for another offence on which he or she was ultimately tried.
[14]Warwick v The Queen (2010) A Crim R 580, [10] (Maxwell P, Weinberg JA); [2010] VSCA 166; Karpinski [2011] VSCA 94, [51] (Tate JA, Weinberg and Mandie JJA agreeing).
[15]Renzella (1997) 2 VR 88, 98 (Winneke P, Charles, Callaway JJA); Karpinski [2011] VSCA 94, [34], [35] (Tate JA, Weinberg and Mandie JJA agreeing).
Thirdly, when a custodial sentence is to be imposed which will be cumulative upon, or overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody fairly represents the totality of the criminality involved.[16]
[16]Postiglione v The Queen (1997) 189 CLR 295, 308 (McHugh J); [1997] HCA 26
The applicant’s argument is that he has effectively lost the benefit of a period spent in remand dating from 25 July 2017, over the course of some five or six further sentences imposed by various courts between that date and the date on which he was sentenced for these offences. He contends that the judge was in error when sentencing him on 26 October 2022 for failing to have regard to this undeclared period of time — either as undeclared pre-sentence detention (‘PSD’) under s 18 of the Sentencing Act, or perhaps as time to be considered under the principles of Renzella or, alternatively, more generally having regard to the principles of totality.
The applicant faces three problems with this argument. First, he had difficulty identifying the period of time he says was ‘lost’. Secondly, he had difficulties establishing that the time was not taken into account by courts imposing the intervening sentences. Thirdly, except in relation to the time the applicant had spent in custody since 8 October 2018, his counsel at the plea hearing made no submission that the judge should have regard to any earlier periods spent on remand when applying the principle of totality.

I will deal as briefly as best I can with the first problem. Notwithstanding that the ‘lost’ period relied upon in the written case was 219 days, with possibly an additional 15 days, in oral submissions in this Court the applicant clarified that the period of detention in issue is the period of 172 days between 25 July 2017 and 13 January 2018 (between 4 and 5 years before the sentence imposed relevant to this proceeding). The commencing date was the date on which he was arrested and detained for offending for which he was sentenced on 13 August 2018 at the Melbourne Magistrates’ Court. On that occasion an allowance was made for 212 days of PSD. The end date is arrived at by deducting 212 days from 13 August 2018.
It was not clear whether the applicant contends that the 212 days just mentioned embraced the period of 172 days preceding 13 January 2018. As conceded in oral argument, between 22 February 2018 and 13 August 2018 the applicant was serving a term of 9 months’ imprisonment after being sentenced at Broadmeadows Magistrates’ Court. Accordingly, none of the days between those two dates could be reckoned as PSD in respect of the offending for which the applicant was sentenced on 13 August 2018. In other words, the 212 days allowed as PSD on 13 August 2018 must have taken into account detention prior to 22 February 2018. Moreover, on 22 February 2018 the Broadmeadows Magistrates Court declared 21 days of PSD, reaching back to 1 February 2018. In short, it seems likely that the 212 days declared as PSD on 13 August 2018 took into account days spent in detention prior to 1 February 2018.
That feeds into the second problem. The sentence imposed on 13 August 2018 — a sentence of 3 years’ imprisonment with a non-parole period of 27 months, partially concurrent with the sentence imposed on 28 February 2018 — was successfully appealed in the County Court on 8 October 2018 resulting in a substituted sentence of one year’s imprisonment and a CCO for 5 years. Crucially, on that occasion, the judge noted the 212 days of PSD but expressly declared that those days ‘not be reckoned as a period of presentence detention under this sentence’. That notation appears in the order of the court made on 8 October 2018. Neither party on this application was in a position to explain the judge’s reasons for not reckoning those days as PSD under the sentence.
After the applicant breached the CCO imposed on 8 October 2018 the matter came back before the same judge a little over three years later, on 5 November 2021. In the meantime, the applicant had been arrested and remanded (for 221 days) for the offending the subject of this application; further arrested and remanded for other offending on at least two other occasions; and sentenced in another court and imprisoned with an allowance for some PSD.[17] In any event, on 5 November 2021, the judge who had dealt with the applicant on 8 October 2018 sentenced him for the breach of the CCO imposed on that prior occasion. He was sentenced to a total effective sentence of 3 years and 2 months, with a non-parole period of 2 years, and 326 days declared as PSD. The sentencing remarks of the judge on that occasion were not produced to explain that calculation.
[17]Reasons, [39]
In the result, it is not possible to conclude that the 172 days preceding 13 January 2018, identified by the applicant, have not been taken into account in some proper way by a sentencing judge or magistrate prior to the sentence that is the subject of this application being imposed. This case is a prime example of the desirability that PSD be taken into account at the first available opportunity, and of the problems that may arise when that does not occur (if, indeed, it has not occurred).
Finally, as for the third problem, the applicant properly conceded that the judge who imposed the sentence relevant to this application was not asked to consider any period of detention prior to 8 October 2018.[18] It was fairly conceded that, unless a judge’s attention is directed to that task, it is hardly appropriate to contend that a judge was in ‘error’ for not scouring the whole history of remand and declared pre-sentence detention, reaching back into distant time, to see whether there might be some day or days not previously accounted for.
[18]The period of time the judge was asked to consider is that which is set out in the chronology extracted at [19] above.
Because of these three problems, the argument that the applicant has never received the benefit of some undeclared period of PSD, or perhaps some Renzella time, and that the judge erred in not taking such time into account, has no prospect of success.
Even if he is unable to identify a specific period of undeclared PSD or some Renzella time not previously taken into account, the applicant submits that the judge erred by not having regard to the sentence imposed on 5 November 2021 and applying the principles of totality when imposing the sentence for the offending on 28 October 2019.
This argument has no prospect of succeeding either. On the plea, the applicant submitted that the court would need to have regard to the principles of totality and proportionality, particularly in view of the sentence imposed on 5 November 2021. In response, the judge stated that she would examine the chronology of sentences from the applicant’s criminal history for the purpose of considering totality. In the context of that exchange, the judge listed the chronology of sentences after 8 October 2018,[19] acknowledged that the sentence to be imposed would ‘run at the same time’ as the balance of the sentence imposed on 5 November 2021,[20] and fixed a new combined non-parole period for both the 5 November 2021 sentence and the sentence which she was imposing in accordance with s 14 of the Sentencing Act.[21] All these matters make it perfectly clear that her Honour gave consideration to the existing sentence with the principle of totality firmly in mind.
[19]Above, [19].
[20]Reasons, [41], [57].
[21]Reasons, [59].
Leave to appeal is refused on proposed ground 1.

Proposed Ground 2 (delay)

The offending occurred on 28 October 2019 and the applicant was sentenced on 26 October 2022, resulting in a lapse of time of three years. The applicant submits that the judge was aware of the delay but made no mention of it in her sentencing remarks and did not moderate the disposition accordingly. He asserts the judge was in error in this regard.
Delay does not in and of itself necessarily entitle an accused to a discount in sentence.[22] Among the numerous factors that counsel put to the judge on the plea, moderation of the sentence due to the delay was not one of them.
[22]Artharsv The Queen (2013) 39 VR 613, 621 [29] (Redlich, Coghlan JJA, T Forrest AJA); [2013] VSCA 258.
Delay in a matter being finalised may be relevant in one or both of two ways. Delay may provide an opportunity to demonstrate capacity for rehabilitation or it may visit some unfairness upon an accused because of the time the matter has been hanging over his or her head.[23]
[23]R vCockerell (2001) 126 A Crim R 444, 447 [10] (Chernov JA); [2001] VSCA 239; R v Schwabegger (1997) 4 VR 650, 653 (Kenny JA), 659–60 (Vincent AJA); R v Katsoulas [2008] VSCA 278, [9]–[13] (Redlich JA); Dragojlovic v The Queen (2013) 40 VR 71, 131 [294] (Redlich, Weinberg JJA, Bell AJA); [2013] VSCA 151.
The applicant submitted that the judge’s sentencing remarks reveal that she did not consider either of those moderating aspects of the delay. The respondent submitted that the judge clearly had regard to the both the fact of the delay and its consequences upon the applicant. That the judge did so, submitted the respondent, can be seen from her consideration whether his plea of guilty could be regarded as timely or late, the conditions under which he spent time on remand due to the impact of the pandemic and the effect of the pandemic ‘on the operations of the Court’.[24] It was not suggested by either party that the delay was attributable to some fault of the other.
[24]Reasons, [42]–[43].
In relation to the steps taken by the applicant toward his rehabilitation during the delay, which the judge allegedly failed to take into account, the applicant pointed to his participation in an alcohol and drug program conducted in the prison. However, the applicant accepted that the judge did refer to his participation in that program including his ‘motivation to engage in treatment’.[25] No other steps toward rehabilitation were identified. On that basis, it can hardly be said that the judge failed to take into account steps taken toward rehabilitation afforded by the opportunity presented by the period of delay in having the matter come before the court.
[25]Reasons, [35].
As to the second moderating aspect of the delay — the impact of the matter hanging over the applicant’s head — it is true that the judge made no explicit reference to that factor. Nor, it must be said, did counsel on the plea submit that she should. Plainly the judge was aware of the fact of the three year lapse between offending and sentence. The judge did focus on some adverse aspects of that period awaiting sentence, in particular the conditions of remand during that time. The judge also considered the question whether the cause of the delay might be the applicant’s plea of guilty only shortly before the scheduled trial but ultimately accepted, as agreed between the parties, that it should not be treated as a late plea given that negotiations had resulted in a charge of aggravated carjacking being replaced by one of armed robbery.
The combined consideration of the causes of the delay in the plea, and the impact of the pandemic on the applicant while in remand, did at least touch upon some of the integers that might be weighed in assessing any overall unfairness occasioned to the applicant by the delay. That said, I accept that those matters are not perfect proxies for the unfairness that might be occasioned by the matter hanging over an offender’s head.
Clearly, the nature of the offending and the applicant’s lamentable prior history gave rise to prominent considerations of deterrence (general and specific), denunciation and community protection as the principal driving factors in the sentencing process. The judge regarded the ‘strongest’ factor in mitigation to be the applicant’s plea of guilty. Nonetheless she took into account the explanation for the timing of the plea and the ‘context of the COVID-19 pandemic and the effect of that on the operations of the court’. In other words, it is reasonable to conclude that the judge was well aware of the delay itself, and gave whatever weight in mitigation it deserved under the guise of other considerations. But realistically, balanced against the nature of the offending and the applicant’s criminal history, the overall combined impact of those factors was only ever going to be moderate.
In the end, delay does not of itself entitle an offender to a discount in sentencing, the judge did consider those factors connected with the delay that occurred to counsel acting on his behalf to put forward as deserving consideration, and those factors did address those aspects of the general unfairness occasioned to the applicant by the delay thought to be relevant in the circumstances. In my view this proposed ground has no real prospect of success.
Leave to appeal is refused on proposed ground 2.

Proposed Ground 3 (aggravating armed robbery for weapon and injury)

Armed robbery requires proof that the offender was armed with one or more of various specified weapons at the time of committing a robbery. To state the obvious, being armed is an element of the offence of armed robbery. In this case, the applicant was charged and convicted of armed robbery because he committed robbery while armed with a steel baton.
In coming to sentence on all the offences the applicant, the judge commented that the
offending was by no means of a low level instance of an armed robbery. As I have noted you offending (sic) in company, both of you were armed, and you inflicted injury on Mr Eurell.[26]
[26]Reasons, [51].
Thus, the applicant argued that, in concluding that the offending was not ‘a low level instance’ of an armed robbery, the judge took into account that ‘both of you were armed.’ On the applicant’s submission, her Honour impermissibly increased the objective seriousness of that charge by reference to the presence of an element of the offence, not a circumstance of additional aggravation. In effect, the applicant argues that the judge failed to observe the distinction
between a finding of fact to guide the exercise of a sentencing discretion and a finding of fact on which the liability of an offender to a particular maximum penalty depends. The former is a familiar aspect of sentencing; the latter is ordinarily a consequence of a plea of guilty or of a jury's verdict of guilty.[27]
[27]Kingswell v The Queen (1985) 159 CLR 264, 288 (Brennan J); [1985] HCA 72.
In addition, the applicant points to the judge having said, in connection with the seriousness of the armed robbery offence (charge 2), that the applicant ‘inflicted injury’ on Mr Eurell, a matter that gave rise to charge 3 (intentionally cause injury) on which the applicant was separately sentenced. Given that orders for cumulation were made in respect of charges 2 and 3, the applicant submits that the resulting total sentence involved an exercise in double punishment.
The respondent concedes that it would have been impermissible to increase the seriousness of the charge by reference to the circumstance that the applicant was armed, but contends this was not what her Honour did ‘as the transcript reflects’. Most likely the respondent had in mind this exchange with the prosecutor:
MR BRUSTMAN: …I'm instructed that the Crown view this as a mid-level offence. It's certainly not insignificant. It's in the mid-range of offending. It would have been, clearly, frightening to anybody upon whom it was perpetrated and further, it would've been very frightening to any observer of it. Weapons were used in broad daylight, I might add, and as I say, this is not a minor – these aren't minor acts - - -
HER HONOUR: So the factors are there was weapons, he was in company, it was daylight with other people around, [but we] cannot say it was planned because we don't know what happened.
The respondent submits that, construed sensibly, all that the judge was doing was describing the features of the armed robbery and the context in which it occurred, rather than using those features to aggravate the offending. Further, because separate and distinct sentences were imposed on charge 2 and charge 3, for separate and distinct offending, the respondent argued that there was no reasonable risk that the judge engaged in double punishment.

Consideration

The applicant’s argument requires the Court to accept that, by her two sentences extracted above, the judge is to be taken as saying that the applicant’s offence of armed robbery was made more serious because he:
(a)was armed;
(b)was in company; and
(c)inflicted injury on Mr Eurell.
There is a real danger of falling into the trap of over-analysing these two short sentences. There was no dispute that her Honour was correct in viewing the armed robbery as falling at about the mid-range level as the prosecution characterised it or, as the judge put it, ‘by no means a low-level instance’. One simple and reasonable way of understanding her Honour’s comment was, as the respondent suggested, that the first sentence was a statement about the armed robbery offence itself and the second was a more contextual statement about the global offending.
Nevertheless, superficially, there is some attraction to the applicant’s argument. That the applicant committed the armed robbery in company with another could properly be viewed as an aggravating feature of that offence. Being in company is not an element of that offence. But because, in the same breath, the judge also mentioned being armed and inflicting injury on Mr Eurell, it may appear as if the judge also took those two things into account as aggravating features of the armed robbery. In the case of the applicant being armed, that would be impermissible because being armed is simply an element of the offence; and in the case of him inflicting injury, there might be some double punishment if his sentence for armed robbery was increased for the same offending for which he was punished on charge 3.
On the other hand, one must hesitate before accepting that an experienced judge would consider that being armed is an aggravating feature of armed robbery. Prudence dictates a closer analysis of the statement before concluding that it reveals error. In my view, a common sense reading of her Honour’s statement focuses on the starting point that the armed robbery occurred ‘in company’. In that context, the judge said that ‘both of you’ were armed. She then proceeded to say ‘and you [that is, plural] inflicted injury’ (my emphasis). Properly understood, her Honour was drawing attention to the fact that two people were involved in the armed robbery, both were armed and both carried out an assault in the course of the robbery.
Being in company was not an element of armed robbery and it did aggravate that offence. So did the fact that the applicant’s co-offender was also armed. So did the fact that both armed offenders inflicted injury with their weapons in the course of that armed robbery. Nowhere else in the sentencing remarks does the judge say that she regarded charge 3, intentionally cause injury, as being aggravated by reason of it having been committed in company. In a general way, she took that particular feature into account in assessing the seriousness of the armed robbery.
This understanding of the judge’s two sentences is, to some extent, borne out by the exchange set out above that occurred on the plea. In characterising the applicant’s offending as ‘in the mid-range of offending’, the prosecutor emphasised that the applicant was ‘in company’ and that weapons were used in broad daylight. To explain her conclusion that the armed robbery was ‘by no means low-level’, the judge chose to emphasise that it was committed in company, including that both offenders were armed and both engaged in an assault in the process. Separately, the judge sentenced the applicant for his individual role in inflicting injury on Mr Eurell and determined an appropriate degree of cumulation for that offending.
In summary, the impugned sentences might reasonably be understood in the way the respondent argued in this Court, or in the slightly more nuanced way that I have suggested. In any event, there is no arguable basis for suggesting that the judge aggravated the armed robbery offence simply because the applicant was himself armed. Nor is there any arguable basis that the judge engaged in double punishment in respect of the charge of intentionally causing injury.
Leave to appeal is refused on proposed ground 3.

Proposed Ground 4 (Verdins 1)

This Court held in Verdins that impaired mental functioning, whether temporary or permanent, could reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that was so, the condition affected the punishment that was just in all the circumstances; and denunciation was less likely to be a relevant sentencing objective.[28] This is commonly known as the first Verdins principle (‘Verdins 1’).
[28]Verdins (2007) 16 VR 269, [32] (Maxwell P, Buchanan, Vincent JJA).
If a mental impairment existed at the time of the offending, it must have some ‘realistic connection’ with the offending; or have caused or contributed to the offending; or be causally linked to the offending.[29] Merely suffering from some impaired mental functioning does not of itself attract any particular principle enunciated in Verdins. Rigorous evaluation of the evidence is required to identify a basis for applying any particular principle to the offending and the offender.[30]
[29]DPP v O’Neill (2015) 47 VR 395, [74] (Warren CJ, Redlich, Kaye JJA); [2015] VSCA 325 (‘O’Neill’).
[30]O’Neill (2015) 47 VR 395, [68], [78] (Warren CJ, Redlich, Kaye JJA).

In her report of 14 July 2022, Ms Perera expressed these views concerning the applicant’s psychological state including at the time of his offending:
Mr. Sozmen has had long term issues with emotional dysregulation and using substances to cope with this, and this substance use has become an automatic tendency for him. His heightened nervous system due to his PTSD has resulted in more impulsive behaviours, and substance use to calm his nervous system, contributing to his reckless and risky behaviours. It appears that his judgment was highly impaired, and his ability to apply sound reasoning skills was also highly impaired.
…
By the time of Mr. Sozmen’s most recent offences, he had been using illicit substances for almost 10 years, and abused alcohol for even longer. … For Mr. Sozmen, this not only facilitated his decade of addiction, but also impacted the impulsivity and poor decision making that led to his offending behaviours. This was exacerbated by his poor emotional regulation, after years of using substances to avoid them. Mr. Sozmen’s description of experiencing anger, indicates several issues relating to anger management problems. This alongside his poor impulse control leads to difficulty in managing angry impulses, leading to Mr. Sozmen’s offending behaviours, and even past domestic violence behaviours.
At the time of offending, Mr. Sozmen continued to suffer from his PTSD which led to a reduction in emotional regulation and increase in impulsivity, compounded by a reduction in clear and reasoned, consequential thinking. All these symptoms were then exacerbated by his substance use at the time.
Dr Laura Anderson, in her report dated 29 May 2020, also said:
In my clinical opinion, the association between Mr Sozmen’s psychological profile, his alcohol and other drug use and his offending behaviour, should be considered. That is to say, he has an external locus of control and poorly developed internal emotional coping mechanisms. This has contributed to an underlying sense of helplessness with regard to his circumstances and in response a perception that he cannot self-manage his emotions. Subsequently he utilised substances as an external mechanism through which he could relieve some of the burden of his emotional stress. This has further complicated his psycho-social circumstances by seemingly increasing his engagement in anti-social behaviour, such as domestic violence and offending, which in turn created a domino effect of further emotional distress and a perpetuation of this cyclical pattern of behaviour. His contravention of the Community Corrections Order also represents his poor coping capacity and tendency to externalise his sense of control of situations.
It can be seen that in each case the medical practitioner has expressed a view about the impact of the applicant’s psychological condition, and alcohol and drug behaviours on his impulse control and general ability to think in a clear and reasoned way, generally, around the time of his offending.
On the hearing of the plea, counsel for the applicant referred to these opinions in support of an argument that the judge should moderate the sentence based on the principles in Verdins. The judge pressed counsel for any explanation for the applicant’s motivation for offending. Apparently, the woman in the other car to whom the victim, Muzzolini, was speaking at about the same time the applicant arrived at the car park was a housemate of the applicant’s then partner. Her Honour asked about certain evidence that might have pointed to the applicant being angry in some way with the use of that woman (and perhaps another) in some other criminal activity. The applicant’s counsel responded, ‘There is clearly a backstory behind this offending but no one is prepared to say’. To that the judge said
… it’s all very well to say that his culpability is affected by drug use and PTSD but if I don't know why he did it, how can I form a conclusion about his thinking processes and whether they were impacted by mental health or drugs, for that matter.
Counsel replied, ‘I agree with that, Your Honour’, and immediately moved onto a submission about the utility of the guilty plea.
As outlined above, the judge was prepared to moderate the sentence by virtue of some other principles in Verdins, but not by reference to Verdins 1.
By this proposed ground of appeal, the applicant seeks to argue that an absence of explanation for the offending was not determinative of the existence of the relevant causal link between the mental impairment and the offending. Ms Perera had explained that the applicant’s PTSD rendered him vulnerable to emotional dysregulation, impulsivity and reduction in clear and reasoned consequential thinking. The applicant contended this was sufficient to establish the link.
In my view, having regard to the relevant principles and the facts, it is not reasonably arguable that the judge made any error in her analysis. There was simply no evidentiary foundation to establish a causal link between a psychological condition which impaired the applicant’s ability to reason and which lead to impulsivity, without some explanation for what led to this offending. For example, if the offending had been the result of some carefully thought-through plan, hatched over some period of time, there would have been no basis to say it was the product of a mental impairment that produced irrational impulsive thinking. The mere coincidence of some generalised reduction in clear and reasoned consequential thinking, and an instance of offending, does not of itself establish a nexus between the two.
As revealed in the final part of the extract of transcript of the plea hearing, set out above at [55], the judge could not determine if the offending was (or was not) the result of planning because ‘we don’t know what happened’. To find a causal connection between the mental impairment and the offending on that state of the evidence would have involved an exercise in speculation.
Finally, there was evidence that the offending was committed in circumstances whereby the applicant was affected by alcohol and illicit substance. That factor further complicates any analysis of a nexus between mental impairment and the offending.
As there is no arguable basis for finding error, leave to appeal is refused on proposed ground 4.

Proposed Ground 5 (sentence manifestly excessive)

The applicant’s proposed ground 5 did not expressly identify which sentence or sentences were said to be manifestly excessive. On the oral hearing I took it that the applicant’s argument was principally focussed on the 3 years 6 month base sentence for armed robbery (charge 2). That is the proposed argument I will chiefly address.
As is frequently stated, an appeal against sentence on the basis of manifest excess or inadequacy requires ‘stringent proofs’.[31] It is not enough that the appellate court would have imposed a different sentence. Rather, the sentence being considered must be one that is ‘wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion’.[32] In the absence of specific error, the sentence being considered must on its face reveal underlying error. This is no easy task.[33]
[31]Clarkson v The Queen(2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’).
[32]Osman v The Queen[2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
[33]Lai v The King [2023] VSCA 151, [16] (T Forrest and Osborn JJA).
In contending that the sentence for armed robbery was not reasonably open in all of the circumstances, the applicant emphasised the following matters as individually, and in combination, requiring such mitigatory allowance that it can be concluded that the sentence actually imposed must have been infected by error:
(a)first, regardless of whether Verdins 1 applies, the applicant was prone to spontaneous and ill-judged behaviour, there was no evidence his offending was preplanned, the offending was properly to be regarded as being in the middle range of objective seriousness and, although one of the victims was injured, that consequence was the subject of a separate charge and sentence;
(b)secondly, the plea of guilty, its timing, its utilitarian value, the onerous conditions in custody arising from the pandemic (and the declaration under s 6AAA demonstrates that insufficient weight was given to this factor);
(c)thirdly, the applicant’s rehabilitation prospects (which the judge found to be ‘guarded’ but gave no reasons for declining to accept some contrary opinions expressed in the psychological materials tendered);
(d)fourthly, the increased burden of imprisonment and time on remand due to the pandemic restrictions; and
(e)fifthly, the delay between offending and sentence, as argued under ground 2.
In my opinion, there is no merit at all in this proposed ground.
Armed robbery is a serious offence carrying a maximum term of imprisonment of 25 years. The applicant does not dispute that it fell within the mid-range for such an offence. The sentence of three years six months imprisonment is 14% of the maximum sentence available for that charge.
The judge accepted that the strongest factor in mitigation was that the applicant pleaded guilty. She noted its utilitarian value and gave weight to the onerous conditions in custody arising from the COVID-19 pandemic. Nothing meaningful can be drawn from the s 6AAA declaration.
The judge found the applicant’s prospects of rehabilitation were guarded specifically based upon the fact of his poor offending history and in view of the difficulties he would face in addressing the causes of his offending, namely, his alcohol and illicit substance abuses. His prolonged use of drugs and alcohol and the recognition that he needed to abstain from them to achieve any meaningful rehabilitation, as recommended by Ms Perera herself, was a rational and explicable basis for this finding.
The judge paid specific regard to the increased burden of imprisonment and time on remand.
As for delay, I repeat what I have said above in respect of proposed ground 2. The judge made such allowance for delay as was urged upon her. By doing so she likely gave consideration to all relevant mitigatory considerations available to the applicant. In the mix of all the sentencing considerations, mitigation of sentence for delay was only ever going to be moderate.
The applicant has a significant criminal history which is only very briefly summarised in these reasons. They feature many driving offences, offences for violence, threats to kill, use of weapons, and repeated breaches of prior sentencing orders.
Insofar as the applicant’s proposed ground was also intended also to target the total effective sentence of 4 years and 2 months’ imprisonment and the non-parole period of 3 years and 3 months, a relatively modest period of 2 months was cumulated in respect of charge 3, and the other periods of cumulation imposed were similarly modest given the separate criminality and different victims affected.
Leave to appeal is refused on proposed ground 5.

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[2023] VSCA 215

11 September 2023