Ishmail Sozmen v The King

Case [2023] VSCA 215


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

  1. 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…

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Ishmail Sozmen v The King [2023] VSCA 215
Case
[2023] VSCA 215
Decision Date

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.

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Background to the litigation

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Evidence Before The Court

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Legal Principle Established

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