Legal Research
Cases
Ishmail Sozmen v The King

Ishmail Sozmen v The King

Case [2023] VSCA 215 11 September 2023

Appeal

Limitation Periods

Aggravated & Exemplary Damages

Sentencing

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0017

ISHMAIL SOZMEN	Applicant
v
THE KING	Respondent

---

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)

---

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.

---

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…

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 Ishmail Sozmen v The King

Details

AGLC: Ishmail Sozmen v The King [2023] VSCA 215
Case: [2023] VSCA 215
Decision Date: 11 September 2023

CaseChat Overview and Summary

Ishmail Sozmen appealed against the sentence imposed by the Supreme Court of Victoria, arguing that the trial judge erred in various aspects of the sentencing process. Sozmen pleaded guilty to five indictable offences and three summary offences. The indictable offences included armed robbery, intentionally causing injury, theft, and handling stolen goods. Following his guilty plea, Sozmen was sentenced to a total effective term of imprisonment of four years and two months, with a non-parole period of three years and three months. The appeal before the Court of Appeal was focused on several alleged errors in the sentencing process.

The legal issues before the Court of Appeal included whether the trial judge failed to apply the principle of totality by not taking into account Sozmen's prior periods of custody, whether there was an error in not moderating the sentence for the delay in bringing the matter to trial, whether treating Sozmen's being armed was an appropriate aggravating factor, whether the trial judge erred in rejecting the applicability of the first Verdins principle, and whether the sentence was manifestly excessive. The Court of Appeal considered each of these issues in detail.

The Court of Appeal found that each ground of appeal had no real prospect of success. The Court held that the trial judge did consider Sozmen's prior periods of custody and had appropriately applied the principle of totality. The Court found no error in the trial judge's refusal to moderate the sentence for delay. The Court also determined that treating Sozmen's being armed was an appropriate aggravating factor and that the trial judge had correctly rejected the applicability of the first Verdins principle. Finally, the Court found that the sentence was not manifestly excessive. Accordingly, the Court of Appeal dismissed the appeal and refused leave to appeal the sentence.

No orders were made beyond the refusal of leave to appeal the sentence.

Orders