Condurat Camara Mihai v The Queen - [2020] VSCA 167

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…

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.

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Details

Case: [2020] VSCA 167
Decision Date: 22 June 2020

CaseChat Overview and Summary

In the High Court, the applicant, Condurat Camara Mihai, sought to appeal against his sentence. Mihai had pleaded guilty to conspiracy to defraud, having planned and executed a scheme to install credit card skimming devices at ATMs with the intention of defrauding banks. The trial judge sentenced Mihai to four years in prison, with a non-parole period of two years and six months. The appeal focused on whether this sentence and the non-parole period were manifestly excessive.

The court needed to determine if the sentence imposed was appropriate in light of the circumstances of the offence and the principles of sentencing. The key issues included the nature of the offence, which was premeditated and planned, and the need for general deterrence and community protection given the nature of the offending. The court also considered the plea of guilty, some degree of remorse shown by Mihai, his lack of previous convictions, and the fact that he had not re-offended while on bail.

The court concluded that the sentence was not manifestly excessive. It found that the seriousness of the offence warranted a significant term of imprisonment, and the non-parole period reflected the need to deter others from engaging in similar criminal activities. The court held that the sentence was proportionate to the offence and took into account all relevant factors, including current sentencing practices. The appeal was dismissed, and leave to appeal was refused.

Orders