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Camara v The Queen

Camara v The Queen

Case [2019] VSCA 207 20 September 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0109

MIHAI CONDURAT CAMARA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	20 September 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 207
JUDGMENT APPEALED FROM:	[2019] VCC 406 (Judge Hannan)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Sentence of 4 years’ imprisonment with non-parole period of 2 years and 6 months for a charge of conspiracy to defraud – ATM card skimming – Whether sentence manifestly excessive – Reliance on comparable cases – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

KYROU JA:

Introduction and summary

The applicant pleaded guilty to a charge of conspiracy to defraud and, on 29 March 2019, he was sentenced to 4 years’ imprisonment with a non-parole period of 2 years and 6 months.[1] The maximum penalty for the offence is 15 years’ imprisonment.[2] The judge declared that, had the applicant not pleaded guilty, he would have been sentenced to 5 years and 6 months’ imprisonment with a non-parole period of 4 years.
[1]DPP v Camara [2019] VCC 406 (‘Sentencing remarks’).
[2]Crimes Act 1958 s 320.

The applicant has sought leave to appeal on the sole ground that the sentence and non-parole period are manifestly excessive. He contends that two previous cases, Smith v The Queen[3] and Zamfirescu v The Queen,[4] help identify the sentencing range that was available to the judge and that the sentence imposed was wholly outside that range.
[3][2018] VSCA 208 (‘Smith’).
[4][2012] VSCA 157 (‘Zamfirescu’).

The Crown contends that the ground of manifest excess cannot be established simply by comparing the sentences imposed in Smith and Zamfirescu. It relies on the further case of Schneider v The Queen.[5]
[5][2016] VSCA 76 (‘Schneider’).

For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of the offending

The offending involved ATM card skimming. The judge described the offending as follows:

The process involves the installation of a skimming device and a camera at an ATM for the purposes of capture of customer card details and PIN details while customers are using their cards. The skimmed data is intended to be downloaded to a computer and matched with customer PIN data obtained by the video camera.
Typically once that process is complete, the details are copied on to what are described as blank or cloned cards. That card is then used together with the PIN, which has been obtained to access customer’s accounts both at ATMs and via purchase at electronic terminals.[6]

[6]Sentencing remarks [3]–[4].

The charge on the indictment was in the following terms:

The Director of Public Prosecutions charges that [the applicant] at Melbourne and divers other places in Victoria between the 5^th day of April 2017 and the 4^th day of August 2017 conspired together with FLORINEL CAMARA…

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 Camara v The Queen

Details

AGLC: Camara v The Queen [2019] VSCA 207
Case: [2019] VSCA 207
Decision Date: 20 September 2019

CaseChat Overview and Summary

The appellant was convicted of conspiring to defraud, involving the use of ATM card skimming devices. He was sentenced to four years’ imprisonment with a non-parole period of two years and six months. The appellant applied for leave to appeal against the sentence, arguing that it was manifestly excessive. The primary judge had considered comparable cases but found the sentence appropriate in the circumstances of this case.

The central legal issue was whether the sentence imposed by the primary judge was manifestly excessive. The appellant contended that the sentence was disproportionate when compared to other cases where similar offending had resulted in lesser sentences. The appellant also argued that the primary judge had failed to adequately consider the principles of parity and proportionality in sentencing. The Crown, on the other hand, submitted that the sentence was appropriate and within the range of sentences typically imposed for such offences.

In evaluating the appeal, the court considered the appellant’s arguments and the principles of sentencing, particularly those relating to parity and proportionality. The court found that the primary judge had given comprehensive consideration to the relevant principles and had exercised their discretion appropriately. The court noted that the sentence imposed was within the range of sentences for similar offences and was not manifestly excessive. Consequently, the appeal against sentence was dismissed, and leave to appeal was refused.

Orders