Director of Public Prosecutions v Dumitras

[2019] VCC 2094

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01613
CR 19-01614

DIRECTOR OF PUBLIC PROSECUTIONS

v

COSMIN DUMITRAS
MIKOS LAKATOS

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2019
DATE OF SENTENCE:	12 December 2019
CASE MAY BE CITED AS:	DPP v Dumitras & Anor
MEDIUM NEUTRAL CITATION:	[2019] VCC 2094

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Y. Giannopoulos
For Accused Dumitras	Mr T. Isaacs
For Accused Lakatos	Mr A. Halphen

Introduction

1Each of you has pleaded guilty to a charge of conspiracy to defraud with the offence occurring between 5 and 8 May of this year.

2The maximum penalty for this offence is 15 years’ imprisonment.

Circumstances

3Your offence is part of organised ATM card skimming from a criminal organisation based in Europe.

4The taking of money from ATMs requires two devices:  

a)    A skimming device and miniature pinhole camera. The skimming device contains a card reader and a memory chip which capture bank card information when bank cards are inserted into ATMs by a customer.  The pinhole camera records and stores footage of a customer entering his or her PIN;

b)    The skimming device is placed over or into an ATM slot and the pinhole camera is placed elsewhere on the same ATM.

5Typically installed for one day, these devices obtain card information and PINs.  Information is downloaded onto a computer and a card writer or reader is used to copy the true card's magnetic strip creating a copy card.  Usually, the copy card is a gift card with a magnetic strip.

6Since the card’s information is stored in a computer, it can be sent overseas for use elsewhere. 

7Both of you are Romanian nationals.  You travelled to Australia on Hungarian passports and on 651 visas, arriving on different dates in April 2019.

8Both of you met by chance at a money exchange outlet in Sydney.  You spoke with difficulty because you speak different languages.  You swapped phone numbers and met the next day.  

9In late April, both of you obtained copy cards.  These cards contained the data stolen by three other persons in Western Australia last year.  The stolen data came from more than nine ATMs of the ANZ Bank at various places in Western Australia. 

10On about 3 May, both of you travelled to Melbourne intending to use the copy cards.  You booked into Aura Apartments in Flinders Street.  

11Between 5 and 8 May 2019, you conspired between yourselves and others to use the copy cards at various ATMs in Melbourne to defraud various banks.

12Paragraph 15 of the prosecution opening sets out the detail of your activities:  the withdrawals and attempted withdrawals from ATMs and the cancellations of the cards from whose details the copy cards were made.  

13Between 5 and 8 May 2019, both of you stole $27,816.30.  A further $137,394.10 was attempted to be stolen, of which $43,167.00 represented subsequent attempts to use the same copy cards.  Both of you were very active in that short period.  

14On 8 May, members of the police force arrested both of you in Toorak.  Collectively, you possessed a large amount of cash and copy cards with PINs written on them.  You, Mr Lakatos, possessed a key to a room at the Aura Apartments. 

15The police obtained a search warrant to search the room, did so and seized a laptop computer, mobile phones and clothes. 

16Both of you were interviewed, making certain admissions, effectively admitting the offence.  

17Both of you have remained in custody since your arrest.  This amounts to 218 days, not including today.  

18You, Mr Lakatos, do not have any prior convictions or findings of guilt.  You, Mr Dumitras, have a conviction for a drink driving offence in Romania about three years ago for which you were fined.  That matter has no bearing on my sentence.   

Personal details

Lakatos

19Mr Lakatos, you are 38.  You are an Hungarian citizen.

20You came from a poor family.  Your father was a poor provider, an alcoholic and violent to your mother.  You have a sister who now lives in Italy.  

21Your father left the family when you were 12.  Your mother gained money at the market, but it was barely enough.  Since the separation, you have never seen your father.  Your mother formed a new relationship, after which your contact with her lessened markedly.  You and your sister were mainly raised by your maternal grandmother. 

22Your education ceased when you were 11.  Your ability to read or write is limited.  You have worked continuously since leaving school, undertaking a variety of jobs:  making mud bricks; light sanding for a furniture maker; bricklaying and roofing; factory worker; labouring for a builder; and as a farmhand.  You and your wife have travelled overseas to work in the United States of America and twice to Corsica. 

23You met your future wife at the age of 15.  You married and have a son aged 15 and a daughter aged 5.  Your wife became pregnant in early 2019.  Unfortunately, your wife miscarried in October.  You suspect her miscarriage was related to your detention.  Your family lives in Romania and your wife and children are exhibiting problems through your absence. You fear they will struggle in the upcoming winter.  

24You came to Australia expecting to stay with a friend and help him renovate a house and be paid for your work.

25You borrowed to travel to Sydney but the arrangement with your friend did not start.  After some time doing nothing, you went to a money exchange where you met Mr Dumitras.  You travelled to Melbourne from Sydney with the intention of using the copy cards.  

26For your efforts between 5 and 8 May, you expected to receive the monies found on you when arrested, between $7200 and $7400.  

27Your involvement has been variously described.  The name does not matter.  It simply involved using copy cards and PINs to obtain money from ATMs.

28On remand, you worked on an irrigation project until hurting your back.  Since then you have worked as a cleaner.  You are studying English with classes twice each week.

29Plainly, you are isolated from family and friends.

30Pamela Matthews is a psychologist.  On 28 November, she interviewed you at the request of your solicitor.  You carried out her tests.  The results suggest you are suffering from symptoms of depression, anxiety and post trauma.  Apart from the symptoms of post trauma, the other symptoms are caused by your present predicament.  Your post trauma symptoms relate, in part, to your earlier life of exposure to family violence, substance abuse and experiencing parental abandonment.  Overall, the symptoms are moderate to severe and adversely affect your functioning.  

31Ms Matthews tested your intelligence.  Her test did not allow for comparisons with Hungarian or Romanian results.  Using Polish results, she believes you function in the range of low average intelligence.  

32Ms Matthews believes your driving anxiety over poverty added to your limited education and intelligence constrains your ability to think of different solutions to the problem of your poverty.  For those reasons, she says, you are less to blame.

33She believes your time in custody will be more difficult for you than most prisoners. 

Dumitras

34You, Mr Dumitras, are 34.  You are a Hungarian citizen with a girlfriend living in Romania.

35Apart from inviting Mr Lakatos to join you in this criminal enterprise, your involvement is the same as his.  You used copy cards and their PINs to withdraw moneys from ATMs.

36Compared with Mr Lakatos, you are well-educated, having completed the equivalent of Year 12 and two years of a university course.  Later, you obtained a diploma in web and graphic design and worked for a business called 'Automatic Processing Network' as a graphic designer and web developer.

37In effect, you took leave from this job to travel to Australia on a three-month visa.

38Although you were not entirely candid when interviewed by the police, you admitted enough to underpin the charge against you.

39You expected to receive about $3000 for your efforts between 5 and 8 May.   

40You have been active while on remand.  You have completed a unit in each of a Certificate II and III in cleaning at the Box Hill Institute.  You completed a six-hour course entitled 'AOD and Depression' with Caraniche.  The course aims to assist participants to identify and manage symptoms of depression in the context of alcohol and drugs.  You have also completed seven one-day courses called 'Adapt', 'Take Stock A', 'Take Stock B', 'Learning for Life', 'Houses and Homes', 'Healthy Living' and 'Family, Friends and Community'.  Finally, on 29 June and on 4 November, you provided urine samples, which on analysis did not reveal the presence of any well‑known substances.   

41You are isolated from family and friends in Australia. You have not been visited while on remand.

Plea of guilty

42Both of you pleaded guilty at the second committal mention on 14 August.  These pleas were made at the earliest reasonable opportunity.  Each deserves a considerable discount on the sentence I would have imposed if each of you had been found guilty after a trial.  

Remorse

43Both of you have exhibited remorse for your offending:  

a)    Mr Dumitras, through your expressions of shame especially since you have relatives who have held or do hold now significant positions in the Romanian justice system;  

b)    Mr Lakatos, through your plea of guilty and admissions made in the record of interview and what you told the psychologist.  

Prospects of rehabilitation   

44In relation to prospects of rehabilitation for you, Mr Dumitras, they are good because of the presence of your girlfriend and family in Romania. 

45For you, Mr Lakatos, they are good because of your strong desire to return to your family and their ardent wish for you to return.   

Letters

46I read the letters from members of your families, girlfriend, relative and friend.  The fact that those letters concerning you, Mr Lakatos, are unsigned is immaterial.  I have taken them into account.   

Current sentencing practice

47Counsel referred me to four cases in the Court of Appeal and two sentences in this court.  I have read each:  Zamfirescu v R[1]; R v Smith[2]; Georges v R[3]; DPP v Cirstian, Grigore and Radu[4]; Schneider v R[5]; and DPP v Olar and Karaba[6].   

[1] [2012] VSCA 157.

[2] [2018] VSCA 208.

[3] [2015] VSCA 82.

[4] [2015] VCC 117.

[5] [2016] VSCA 76.

[6] [2017] VCC 801.

48Some involve offenders who were involved in placing the devices on ATMs and were more involved in the overall criminal behaviour than both of you. 

Discussion

49In one of the cases referred to me, the sentencing judge said this of the type of offending both of you have committed[7]:  

'This kind of offending undermines the community’s confidence in the banking system.  Trust in the banking system is crucial to the economic functioning of both businesses and individuals in society.  Your actions posed a real threat to that trust…'

[7] DPP v Olar and Karaba [2017] VCC 801 at [30].

50The purposes of sentencing are set out in s.5(1) of the Sentencing Act 1991. Plainly, punishing each of you in a just manner in all of the circumstances is important. Equally important is the need to deter each of you and others from committing the same or similar offences in the future. Again, there is a need to denounce this offence and protect the community from each of you.

51In accordance with s.5(2) of the same Act, I must have regard to:  

a)    The maximum penalty of the offence, namely 15 years’ imprisonment;

b)    The current sentencing practices and I have noted the cases referred to me;  

c)    The period of your offending was short but involved intense activity.  It netted a significant amount of money and both of you attempted to gain much more;

d)    Both of you travelled from Sydney to Melbourne to engage in this activity;

e)    Your conduct was part of a broader, sophisticated scheme;

f)     Calling what you did, Mr Dumitras, with Mr Lakatos 'recruitment' is overstating the situation, nevertheless, you planted the idea in his mind.  Although I cannot find that either of you travelled to Australia for the purposes of this criminal enterprise, after both of you left Sydney, you pursued it vigorously;  

g)    Your counsel, Mr Lakatos, raised the distinction between need and greed, submitting you were motivated by need because of your impoverished background. Comparing the wealth of inhabitants of Hungary, Romania and Poland to inhabitants of Australia as Ms Matthews does, tells me nothing.  The inhabitants of most nations of the world are poorer than those in Australia.  Whether you are poor in your own country is the test and that may be so because you fear your family will suffer in the winter because of a lack of heating.  Adequate heating is such a basic requirement, it does point to poverty.  I accept the desire to help your family was your motivation to commit this offence; 

h)    As one would expect, there are no victim impact statements. 

Sentence

52Mr Dumitras, on the charge of conspiracy to defraud, I sentence you to 21 months’ imprisonment and direct you serve 14 months’ imprisonment before becoming eligible for parole.

53Mr Lakatos, on the same offence, I also sentence you to 18 months’ imprisonment and direct you serve 12 months’ imprisonment before becoming eligible for parole.

Section 6AAA

54But for your plea of guilty, Mr Dumitras, I would have imposed a sentence of 31 months' imprisonment with a non-parole period of 21 months' imprisonment.  

55But for your plea of guilty, Mr Lakatos, I would have sentenced you to 27 months' imprisonment with a non-parole period of 18 months' imprisonment.

Pre-sentence detention

56I declare both of you have served 218 days of pre-sentence detention, not including today.

Forfeiture order

57I think the prosecution - yes thank you, you can sit down.  I think the prosecution are seeking a forfeiture order, were you?

58MS GIANNOPLOULOS:  That is correct, Your Honour.  There was a disposal order and there was a compensation order.  Sorry, it is in the opening, Your Honour.  There was a compensation order but my learned friend has said that that was not proceeded with.  So it was a forfeiture order.  That is correct.

59HIS HONOUR:  I take it the making of the forfeiture order is not opposed, gentlemen?

60MR ISAACS:  No, Your Honour.  

61HIS HONOUR:  And do I understand you correctly there is no compensation order sought?

62MR ISAACS:  The discussions with the learned instructor on the last occasion, Your Honour, I understood that the Crown would not proceed with the compensation order although it is referred to in the opening.

63HIS HONOUR:  So the answer to my question is yes, it is not being sought.  Is that right?  From the prosecution.

64MS GIANNOPOULOS:  I can see from the memorandum that I have from the instructor, Your Honour, that it was the forfeiture order that there was not - a compensation order that I can see.  And if that is what was discussed on the last occasion then ‑ ‑ ‑ 

65HIS HONOUR:  All right.  Is there any other matter?

66COUNSEL:  No, Your Honour.  

67HIS HONOUR:  Do either of you gentlemen want a moment to speak to your respective clients now using the interpreter? 

68MR HALPHEN:  Yes.  Indeed, Your Honour.

69HIS HONOUR:  It might be more difficult if you have to go downstairs and not have the interpreter.  So please do so now if you wish.

70MR HALPHEN:  Thank you, Your Honour.  Thank you, Your Honour. 

71MR ISAACS:  Thank you, Your Honour. 

72HIS HONOUR:  All right.  The prisoners can be removed.  Do either of you gentlemen wish to avail yourself of the interpreter to see your clients downstairs?

73MR ISAACS:  Sorry, Your Honour, (indistinct words).  No, Your Honour.  

74HIS HONOUR:  Then I thank the interpreter for his assistance and I will adjourn this court till 10.30.

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