Condurat Camara Mihai v The Queen
[2020] VSCA 167
•22 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0109
| CONDURAT CAMARA MIHAI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE and EMERTON JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 15 June 2020 | |
| DATE OF JUDGMENT: | 22 June 2020 | First Revision: 22 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 167 | |
| JUDGMENT APPEALED FROM: | [2019] VCC 406 (Judge Hannan) | |
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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to one charge of conspiracy to defraud – Applicant intended to defraud banks by installing credit card skimming devices at ATMs – Applicant sentenced to four years’ imprisonment, with non-parole period of two years and six months – Whether sentence and non-parole period manifestly excessive – Offending was premeditated and planned – Serious offending – General deterrence and community protection of particular importance due to nature of offending – Plea of guilty – Some remorse – No previous convictions – No re-offending while on bail – Current sentencing practices only one of a number of factors – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Flynn QC with Mr P Botros | Victorian Bar Duty Barrister Scheme |
| For the Respondent | Ms R L Harper | Ms A Hogan, Solicitor for Public Prosecutions |
KAYE JA
EMERTON JA:
The applicant pleaded guilty to one charge of conspiring with his brother-in-law, Florinel Camara (Florinel), and other unknown persons with intent to defraud financial institutions by installing data skimming devices in automatic teller machines (‘ATM’) in order to obtain the personal identification information of bank customers. He was sentenced to four years’ imprisonment with a non-parole period of two years and six months. Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that if the applicant had not pleaded guilty, he would have been sentenced to five years and six months’ imprisonment with a non-parole period of four years.
The applicant has sought leave to appeal against his sentence on the ground that the maximum sentence and the non-parole period were each manifestly excessive. Leave having been refused by a single judge of the Court,[1] the applicant has elected to have an oral hearing of his application pursuant to s 315(2) of the Criminal Procedure Act 2009.
[1]Camara v The Queen [2019] VSCA 207.
The offending
The offence was committed between 5 April and 4 August 2017. It involved the participation by the applicant in a scheme which consisted of ATM deep insert card skimming. That process involved the installation of a skimming device and a pinhole camera at an ATM for the purpose of capturing customer card and PIN details while customers are using their cards at such machines. The skimming device is thin and comprises a card reader and memory chip, which reads data on a card and stores that data. The camera is installed in a position in which it is not visible, but in which it is able to film customers entering their PIN for the card. The skimmed data is intended to be downloaded onto a computer and matched with customer PIN data obtained by the video camera. When that process is complete, the details are then copied onto blank or cloned cards. Those false cards and PINs can then be used to access funds by withdrawals at ATMs or to pay for purchases at electronic terminals.
At about 6.40 am on 5 April 2017, the applicant, with his co-offender Florinel, attended at a National Australia Bank ATM in Glenferrie Road, Hawthorn. The applicant installed a skimming device and a pinhole camera at the ATM. The camera was attached to the fascia located at the side of the machine. It recorded the applicant tapping the PIN pad. The applicant then walked away from the ATM. CCTV cameras recorded the applicant and Florinel walking around the area and subsequently returning to the ATM. The applicant crossed the road to the ATM to check the installation, and then he and Florinel departed from the scene.
The applicant, by his plea, admitted that, by that process, he intended to obtain identification information at the ATM, and that he and Florinel intended that false cards would be created from that information to be used with the PINs (recorded from the camera), in order to access funds held by financial institutions by deception. However, during the day, NAB customers reported that their cards became stuck inside the ATM. A technician attended, and found the skimming device and removed it. Police were called, and they located the pinhole camera.
On 4 August 2017, police executed a search warrant on an apartment in Lorimer Street, Docklands that was then being used by Florinel. At the time the police entered, Florinel and the applicant were present in the apartment. Upon entering the premises, the police arrested both of them. The police located, on computers and mobile telephones used by the applicant, images of skimming devices, 147 hours of footage from two ATMs, and card data and PINs obtained from that video footage. The identification information was sent to NAB for examination by analysts, who established that that information had been skimmed from two ATMs at Forest Hill and Dingley Village between 18 and 21 July 2017. Analysis indicated that the devices had been installed twice at each of those locations. The applicant pleaded guilty on the basis that those skimming incidents were overt acts in furtherance of the conspiracy.
In addition, police found on the applicant’s mobile telephone images of skimming devices, of a metal sleeve used to install skimming devices, of an electrical diagram for a skimming device, and of a skimming device being charged at a power point. Police also located a video, that had been created on 5 July 2017, demonstrating how to install and remove a skimming device with a metal sleeve. On a second laptop computer used by the applicant, police found an internet history of searches for skimming devices, records of skimming devices on websites, and records of a website where skimming device software can be downloaded. There were also text files with time references followed by PIN numbers. Police also located a USB with skimming software and other relevant material.
Arrest and proceedings
After his arrest on 4 August 2017, the applicant indicated that he needed the assistance of a Romanian interpreter. A number of attempts by the police to locate such an interpreter were unsuccessful and accordingly the applicant could not be interviewed. The applicant was released on bail. The matter proceeded by way of a contested committal proceeding on 26 April 2018, at which the applicant and his co-accused both pleaded not guilty. The trial was listed for Monday 25 March 2019. The applicant made an offer to plead guilty on Friday 22 March 2019. That offer having been accepted, the applicant was arraigned on 25 March 2019. He pleaded guilty on that date and was remanded in custody.
The plea
The applicant is a Romanian citizen. At the time of the offence, he was 27 years of age. He had no previous convictions either in Australia or overseas. He married his co-accused’s sister, Lisa, in 2008. Lisa is an Australian citizen of Romanian extraction. The couple moved to Australia in 2009. In the period that followed, they travelled between, and lived in Australia and Romania. In 2013, the applicant commenced a wholesale clothing business in Romania, which he conducted with a business partner. In 2014, Lisa returned to Australia with the couple’s young son. At that point, the applicant remained in Romania for business purposes. Thereafter, he travelled regularly back to Australia to visit his wife and son. The couple separated after the applicant was unable to find sufficient work in Australia to settle here. In addition, his mother required his assistance in Romania.
On the occasion of the offending, the applicant had arrived in Australia on a tourist visa. As he had been separated from his wife, he was no longer eligible for a spousal visa. Initially the visa was for a period of three months. It was during that time that the applicant became involved in the conspiracy to which he pleaded guilty. Upon his release from prison, the applicant will be unlikely to be granted a further visa to stay in Australia.
On the plea, the applicant relied principally on the following mitigating factors:
(1)The plea of guilty, albeit that it was made at a late stage. It was submitted that the plea was of utilitarian value and it indicated ‘a degree of remorse’ on his behalf.
(2)There was no financial gain from the offending.
(3)The applicant had no previous convictions in Australia or overseas.
(4)The applicant had not committed any further offences after being released on bail on 4 August 2017.
(5)It is unlikely that the applicant would be eligible for parole and he would probably serve his entire sentence. The fact that he would be deported at the completion of that term would make his sentence more onerous, because, although he did not live in Australia, he visited the country regularly in order to see his son and partner.
The judge’s reasons for sentence
In her reasons for sentence,[2] the judge noted that the material, that was located by police during their search of the Docklands premises, indicated the planned and researched nature of the applicant’s offending. The judge further observed that although other persons might have been involved in the conspiracy, the evidence revealed the applicant’s ‘fulsome participation’ in it.[3] Her Honour described the gravity of the offending in the following terms:
As discussed with counsel during the plea, this kind of offending is serious. It has capacity to undermine confidence in one of our core institutions. That is, the banking system. At end result, it causes serious disruption in people’s lives and of course, financial loses [sic]. General deterrence is necessarily given sufficient weight and the message must be clear that condign punishment will result in appropriate circumstances.[4]
[2]DPP v Camara [2019] VCC 406.
[3]Ibid [23].
[4]Ibid [24].
The judge noted that the applicant did not engage in any further offending during the time he was on bail, and that he would be deported on the completion of his sentence. Her Honour also took into account the applicant’s plea of guilty. While the plea was not entered at an early stage in the proceeding, the applicant was entitled to rely on the utilitarian benefits of the plea as a mitigating factor. Her Honour also accepted that the plea was some evidence of remorse. The judge considered that the applicant’s prospects of rehabilitation were good, given his lack of previous convictions.[5] She noted that general deterrence must be given significant weight, because of the impact of the kind of offending, engaged in by the applicant, on the community at large.[6]
[5]Ibid [47].
[6]Ibid [46].
Submissions
In thorough and skilful submissions, junior counsel for the applicant contended that, based on the circumstances of the offending, and the circumstances of the applicant, the sentence imposed on the applicant was wholly outside the range of sentences available to the primary judge. In support of that submission, counsel contended that there was no basis upon which it could be concluded that the applicant had a role that was at or near the top of the enterprise of which his offending formed part. Rather, it was submitted, his role in that enterprise was limited. The offending took place over a period of four months, in which there was only one proven attendance by the applicant on an ATM (in April 2017). During the period of the conspiracy, no false credit card was created by the applicant or his co-offender, and no cash was withdrawn from any ATM using such a credit card. Thus, it was submitted, no loss was occasioned as a result of the applicant’s offending. The materials, that were located at the applicant’s home, were limited to devices used for the purpose of skimming.
Further, it was contended, the applicant could rely on a number of relevant mitigating factors. He had no previous convictions in Australia or overseas. His plea of guilty, albeit late, was of material utilitarian value. After his release on bail, the applicant had not offended over a period of some twenty months. The judge found that his plea was accompanied by some remorse. At the conclusion of his sentence, the applicant would be deported. While that circumstance, of itself, could not be regarded as an extra curial punishment, nevertheless as a result of it, the applicant’s family, consisting of his partner and son, would also depart the jurisdiction for Romania. It was contended that that circumstance constituted a penalty for the applicant, given that he would be conscious that, as a result of his wrongdoing, his son was required to leave Australia and make new friends and undertake his education in Romania.
Counsel further submitted that the sentence imposed on the applicant was materially more substantial than that which could be demonstrated to constitute current sentencing practices in respect of such an offence. In the written case filed on behalf of the applicant (which was not prepared by senior or junior counsel who appeared on the application), reliance was placed on the decisions of this Court in Smith v The Queen[7] and Zamfirescu v The Queen[8]. On this application, counsel did not seek to rely on Smith, but relied on Zamfirescu and also the decision of this Court in Florinel Camara v The Queen.[9] Counsel submitted that based on the sentences in those two cases, the sentence imposed on the applicant in the present case could be demonstrated to be well outside the range of sentences available to the judge.
[7][2018] VSCA 208 (‘Smith’).
[8][2012] VSCA 157 (‘Zamfirescu’).
[9][2015] VSCA 20 (‘Florinel Camara’).
In response, counsel for the respondent submitted that the role of the applicant, in the conspiracy that was charged, went beyond that of a mere underling. The offending by the applicant involved a number of different activities. He was involved initially in physically installing a skimming device in the ATM in Hawthorn, and he also was involved in capturing information from two other devices (which had been installed in ATMs in Forest Hill and Dingley Village). Thus, it was submitted, the judge was correct to observe that the applicant’s offending was planned and researched, it involved his ‘fulsome participation’ in the conspiracy, and in order to facilitate the aims of the conspiracy he had obtained and used the skimming device and other items including software and cables. It was submitted that the applicant’s offending was planned, researched and sophisticated. It took place over a four month period. There was no evidence that the applicant had any financial need, or that there was any other factor, which might have mitigated his offending. Rather, it was contended, his offending was motivated by greed. It was submitted that the fact that the applicant did not occasion any financial loss to the banking system was not a mitigating factor, as the incurring of that loss was not an element of the charge of conspiracy.
Counsel for the respondent acknowledged that the applicant was entitled to rely on mitigating factors, including his plea of guilty (albeit late), his remorse, his lack of previous convictions, and his good prospects for rehabilitation. However, it was contended, the offending was serious. As observed by the sentencing judge, such offending undermines public confidence in the banking system. Accordingly, it was submitted, the sentencing purposes of general deterrence and community protection are of particular importance. Based on those considerations, it was submitted that the sentence imposed on the applicant was not wholly outside the range of sentences available to the sentencing judge.
Analysis and conclusion
In order to succeed on the ground, that the sentence and the non-parole period imposed by the judge were manifestly excessive, the applicant must demonstrate that the sentence was wholly outside the range of sentencing options available to the sentencing judge. In other words, the sentence, that is the subject of the application for leave to appeal, must be so excessive as to bespeak error by the judge in the exercise of her sentencing discretion, notwithstanding that no specific error may be identified in her Honour’s reasons for sentence.[10]
[10]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); Lieu v The Queen [2016] VSCA 277, [50] (Beach and Kaye JJA).
The offending in the present case was, of itself, serious. As the sentencing judge recognised, offences of the kind committed by the applicant have the potential to significantly undermine the banking system, and public confidence in it.[11] In the present case, the offending by the applicant took place over a period of four months. His offending was premeditated, planned and quite sophisticated. In order to engage in the conspiracy, he obtained and used materials necessary to enable him to carry out his part of the overall scheme. Fundamentally, the applicant’s offending was fraudulent and dishonest. It only came to an end on his arrest.
[11]Schneider v The Queen [2016] VSCA 76, [44] (Priest JA with whom Coghlan and Kyrou JJA agreed).
The evidence, available to the sentencing judge, did not reveal the level occupied by the applicant in the hierarchy of the enterprise, of which his offending formed a part. However, clearly he was a willing participant in that enterprise. As counsel for the respondent noted, his offending involved physically inserting a skimming device in the ATM at the Hawthorn bank, capturing information from two other devices at other banks, and possessing computers and other electronic devices to enable him to carry out his part of the overall enterprise. The applicant’s participation in the conspiracy was an essential first step in the overall scheme to use the information, obtained from the skimming devices and the cameras, for the purpose of defrauding financial institutions. Furthermore, given the relatively sophisticated nature of the offending and the part played by the applicant, it would be wrong to characterise him as a mere ‘foot-soldier’ in the criminal enterprise.
There was no evidence, nor was it put on behalf of the applicant, that his participation in the offending was driven by any financial or other need. Plainly, whatever role the applicant played in the overall enterprise, his motivation was financial gain. In the absence of any evidence of pressing financial need, we consider that counsel for the respondent was correct in submitting that, thus, the applicant’s motivation was pure greed. Nor was the applicant able to rely on any other mitigating circumstance or factor which might have reduced his level of moral culpability for the offending.
It is accepted that the applicant was entitled to rely on a number of personal factors in mitigation of the sentence. His plea of guilty, albeit at a late stage, was, as recognised by the sentencing judge, of utilitarian value. The trial judge accepted that the plea of guilty was attended by some remorse. Further, the applicant had no previous convictions. After his arrest, he was released on bail for twenty months, and he did not re-offend during that period.
Counsel for the applicant correctly acknowledged that, as the applicant entered Australia on a tourist visa, the prospect that he will be deported on the completion of his sentence could not be properly regarded, per se, as a mitigating factor. However, it was submitted, as a result of that circumstance, it was intended that, on the completion of his sentence, he would be joined in Romania by his former wife and son. In that respect, the circumstance that the applicant would not be able to re-enter Australia meant that his son would be uprooted from Australia, where he has spent most of his life, to join the applicant in Romania.
Ordinarily, in the absence of exceptional circumstances, hardship occasioned to an offender’s family by reason of his or her sentence of imprisonment is not considered to be a relevant mitigating circumstance.[12] By parity of reasoning, the adverse effect of the applicant’s deportation on his family, and in particular on his son, was not demonstrated, in this case, to be an exceptional circumstance of such a nature as to warrant it to be taken into account as a mitigating factor.
[12]R v Thai [2005] VSCA 283, [35] (Eames JA, with whom Charles and Buchanan JJA agreed); R v Mangione [2006] VSCA 34, [10] (Chernov JA, with whom Eames JA and Mandie AJA agreed); Markovic v The Queen (2010) 30 VR 589, 603 [77] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).
The judge appropriately identified each of the mitigating factors, available to the applicant, which we have discussed. Nevertheless, as we have noted, the offending by the applicant in this case was of a serious nature. The maximum prescribed sentence for that offending was 15 years’ imprisonment. Putting to one side, for the moment, the cases relied on by counsel for the applicant as denoting current sentencing practices, we are not persuaded that, in light of the gravity of the offending, the mitigating circumstances available to the applicant were such as to lead to a conclusion that the sentence imposed on the applicant, of four years’ imprisonment, was wholly outside the range of sentencing options available to the judge.
We turn, then, to the two cases relied on by counsel for the applicant as indicating current sentencing practices for such offending.
In Zamfirescu, the offender pleaded guilty to two charges of conspiracy to defraud. The first charge concerned events that took place on a single day in May 2010, when the appellant attached a skimming device to a bank ATM at a shopping centre. That device captured card and PIN data from customers using the ATM over a three hour period, when the camera component became dislodged. Police were contacted and the device was seized. The second charge concerned events that took place over a three month period in 2010. During that period, the offender fixed skimming devices to different ATMs on six separate occasions. On the first two occasions, as a result of the use of the skimming devices at two banks, the offender and his confederates were able to withdraw amounts totalling approximately $150,000. On the last four occasions, the attempted attachment of a skimming device was, in the upshot, unsuccessful. On charge 1, the offender was sentenced to one year imprisonment. On charge 2, he was sentenced to four years and six months’ imprisonment. With cumulation, he was sentenced to a total effective term of five years’ imprisonment, with a non-parole period of four years. The offender had travelled to Australia solely to commit the offences. He was part of an organised international gang. He had previous convictions, and had served previous sentences, for similar offending of credit card skimming.
In Florinel Camara, the offender pleaded guilty to two charges of conspiracy to defraud. The first charge — which related to a period of three months — involved four conspirators using ‘cash skimming’ and ‘cash trapping’ techniques at 248 individual ATMs, as a result of which they stole $184,920. The second charge — which related to a two day period shortly after the offender had been released on bail — involved the use by the offender and a co-offender of card skimming. By that process, they engaged in twenty illegal transactions, skimming $6,920 from fourteen separate accounts. On the first charge, the offender was sentenced to five years’ imprisonment, and on the second charge three years’ imprisonment. The total effective sentence was six years’ imprisonment with a non-parole period of four years. His appeal, on the sole ground of disparity, was upheld, and he was re-sentenced to four years’ imprisonment on the first charge, and two years and six months’ imprisonment on the second charge, which resulted in a total effective sentence of five years’ imprisonment, with a non-parole period of three years. The offender was 23 years of age at the time of the offending, and he had no previous convictions. On the other hand, he committed the offence that was the subject of the second charge while he was on bail.
Counsel for the applicant submitted that, by comparison of the sentence imposed on the first charge in Zamfirescu, and the sentence imposed in Florinel Camara, the sentence in the present case has been demonstrated to be wholly outside the range of sentences available to the judge.
Certainly, by comparison with the sentences imposed in those two cases, the sentence imposed on the applicant in the present case was quite stern. However, as the High Court stated in Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym),[13] while s 5(2)(b) of the Sentencing Act provides that current sentencing practices are a relevant consideration in the determination of the sentence in each case, nevertheless that consideration is only one of a number of factors which must be taken into account in the exercise of the sentencing discretion in a particular case. Further, as this Court has noted on a number of occasions, some caution needs to be exercised in identifying the appropriate sentencing range by reference to previous decisions. In each case, the exercise of the sentencing discretion is necessarily the product of the balancing of a number of different, and frequently conflicting, factors which can vary considerably between individual cases.[14]
[13](2017) 262 CLR 428, 450 [68] (Kiefel CL, Bell and Keane JJ).
[14]Hili v The Queen (2010) 242 CLR 520, 535–7 [48]–[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Hudson v The Queen (2010) 30 VR 610, 617–18 [28]–[33] (Ashley, Redlich and Harper JJA); Hasan v The Queen (2010) 31 VR 28, 38 [44] (Maxwell P, Redlich and Harper JJA).
While, by comparison with the two cases relied on by counsel for the applicant, the sentence imposed on the applicant in this case was relatively stern, nevertheless, we do not consider that, taking into account the gravity of the applicant’s offending, and the mitigating circumstances, it has been demonstrated that the sentence imposed on the applicant was wholly outside the range of sentences available to the judge.
In cases of offending of the kind engaged in by the applicant in this case, the sentencing purposes of general deterrence and community protection must be given particular weight. It is important that sentences, in such cases, be sufficient to deter other like-minded individuals from being enticed into engaging in similar offending by the lure of the easy profits that can be derived from such offending. Further, although the judge in the present case concluded that the applicant had good prospects of rehabilitation, nevertheless specific deterrence was a relevant sentencing consideration. Taking those matters into account, we are not persuaded that the sentence, and the non-parole period, imposed in this case were manifestly excessive.
Accordingly, the application for leave to appeal against sentence is refused.
Before departing from this matter, we note that both counsel, who appeared on behalf of the applicant, Ms Sally Flynn QC and Mr Peter Botros, acted for the applicant on a pro bono basis. If they had not undertaken to appear for the applicant on that basis, the applicant, who requires the assistance of a Romanian interpreter, would not have been able to present his case appropriately to the Court. The thorough and comprehensive submissions made by counsel for the applicant on his behalf were of substantial assistance to the Court. The appearance of both counsel, on a pro bono basis, was in accordance with the highest traditions of the Victorian legal profession. They are each to be commended for doing so.
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