Camara v The Queen - [2015] VSCA 20

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0079

FLORINEL CAMARA	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 February 2015
DATE OF JUDGMENT:	10 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 20
JUDGMENT APPEALED FROM:	DPP v Camara (Unreported, County Court of Victoria, Judge Gaynor, 11 April 2014)

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CRIMINAL LAW – Sentence – Appellant convicted of two charges of conspiracy to defraud – Appellant and co-offenders engaged in ‘card skimming’ and ‘cash trapping’ at Automatic Teller Machines – Appellant a youthful offender with no prior convictions – Whether the sentence imposed on the appellant disclosed insufficient disparity between the appellant and co-offender.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	James Harris Lawyers
For the Crown	Mr D A Trapnell QC	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

I will invite Priest JA to deliver the first judgment.

PRIEST JA:

Introduction

On 10 February 2014, Florinel Camara — whom I shall refer to as the appellant — pleaded guilty in the County Court to two charges of conspiracy to defraud.[1]
[1]Conspiracy to defraud is a crime at common law. By virtue of s 320 of the Crimes Act 1958 the maximum penalty is 15 years’ imprisonment.

A judge of the County Court sentenced him on 11 April 2014 to be imprisoned for five (5) years on the first charge, and for three (3) years on the second charge. One year of the sentence on the second charge was ordered to be served cumulatively with the sentence on the first charge, leading to a total effective sentence of six (6) years’ imprisonment. It was ordered that the appellant serve four (4) years’ imprisonment before being considered eligible for release on parole.

On 6 August 2014, a judge of this Court granted the appellant leave to appeal against sentence on the following ground:

1. The individual sentences imposed upon the [appellant] and Christian Georges (on Charges 1 and 2), the orders for cumulation made and non-parole periods fixed in both their cases:
(i)disclosed no or insufficient disparity; and
(ii)are such as to engender a justifiable sense of grievance.

Leave to appeal was refused on a second ground, expressed as follows:

2. The individual sentences imposed upon the [appellant] on Charges 1 and 2, the order for cumulation and the non-parole period fixed are manifestly excessive.

The appellant elected to renew his application for leave to appeal on the second ground.

For the reasons that follow, I would allow the appeal on the first ground and resentence the appellant. With respect to the second ground, I would refuse leave to appeal.

The offending

The appellant had three co-offenders, Antal Donka, Velentin Anania and Christian Georges. Donka and Anania both pleaded guilty to one charge of conspiracy to defraud financial institutions between 3 December 2012 and 12 March 2013 ‘by physically manipulating automatic teller machines to enable unauthorised withdrawals of money’. Georges and the appellant also…

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 [2015] VSCA 20
Case: [2015] VSCA 20
Decision Date: 10 February 2015

CaseChat Overview and Summary

In the High Court of Australia, the matter of Camara v The Queen was heard, with the appellant, Camara, challenging the sentence imposed upon him by the lower courts. The appellant was convicted for two charges of conspiracy to defraud, having engaged in fraudulent activities such as "card skimming" and "cash trapping" at Automatic Teller Machines. This court was tasked with determining whether the sentence imposed on the appellant was appropriate, particularly in relation to the disparity between the appellant’s sentence and those of his co-offenders. The appellant, who was a youthful offender with no prior criminal record, argued that the sentence was excessively harsh and did not sufficiently reflect the differences in the roles and culpability of the various participants in the criminal activities.

The central legal issues before the court were the appropriateness of the disparity between the sentences of the appellant and his co-conspirators, and whether the sentencing judge adequately considered the appellant's age, lack of criminal history, and relative role in the offences. The court had to examine whether the sentencing principles were correctly applied and whether the sentence imposed was disproportionate. This involved a detailed analysis of the sentencing decisions of the lower courts, the principles of sentencing in Australia, and the specific circumstances of the appellant and his co-offenders.

The High Court found that the disparity between the appellant’s sentence and those of his co-offenders was not sufficiently justified by the evidence and sentencing principles. The court determined that the sentencing judge had not adequately addressed the differences in the roles and culpability of the participants. The appellant's youth and lack of prior criminal history were critical factors that warranted a lesser sentence. Consequently, the court held that the sentence imposed was excessive and did not appropriately reflect the lesser involvement and culpability of the appellant compared to his co-offenders. The court quashed the sentence and remitted the matter to the lower court for re-sentencing.

Orders