Director of Public Prosecutions v Olar and Karaba

[2017] VCC 801

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00251

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARIUS OLAR
CONSTANTIN KARABA

---

JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2017
DATE OF SENTENCE:	16 June 2017
CASE MAY BE CITED AS:	DPP v Olar and Karaba
MEDIUM NEUTRAL CITATION:	[2017] VCC 801

REASONS FOR SENTENCE
---

Subject:  Conspiracy to defraud at Common Law
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Pickering	OPP
For Accused Olar	Mr D Ajak	Papa Hughes Lawyers
For Accused Karaba	Mr J. Dickinson	Garde Wilson Lawyers

HER HONOUR:

1Constantin Karaba and Marius Olar, you have pleaded guilty to conspiracy to defraud at common law.  The maximum penalty for this offence is 15 years.

2The period of offending for you, Karaba, is between 11 November 2015 and 17 June 1016, whereas the period of your offending, Olar, is between 8 June 2016 and 17 June 2016.

3Your offending relates to a practice regarding illegal transactions on ATMs in Victoria by individuals using details obtained from ATM customers or engaging in card skimming.  Card skimming involves offenders using devices which attach to the outside of an ATM.  A device is placed over the nominal card reader on the ATM which reads the information encrypted on the card and then records those details.  At the same time a small camera is placed in a position to record the entry of the customer's PIN.  The data is then used to create new cards or the information is passed on to others for the same purpose.

4You used cards encrypted with skimmed data obtained on most occasions by unknown persons in order to make withdrawals from ATMs.  On two of those occasions you, Karaba, were involved in the installation of skimming equipment.

5The details of your offending are set out in the summary of prosecution opening and dated 1 June 2017.

6You, Karaba, conspired with Olar and others unknown to defraud various financial institutions by an agreement to engage in card skimming.  The conspiracy in respect of you, Olar, is limited to an agreement with Karaba to carry out this activity. 

7Various ATMs around Melbourne were skimmed between the relevant dates and withdrawals were made at various ATMs, principally around Melbourne, connected to a number of different financial institutions including Bendigo Bank, Commonwealth Bank of Australia and Bank of Melbourne.

8Reference is made in the prosecution summary to funds being withdrawn overseas.  This information provides context for your offending and it is not suggested you were directly criminally involved in that activity or that it aggravates your offending.

9You, Karaba, were directly involved in skimming or withdrawing on 22 occasions and you, Olar, on two occasions.  The location of the ATM where a card was skimmed and the amount of funds withdrawn or attempted to be withdrawn is contained in a table, Exhibit A. 

10For the period of the offending a total amount by Karaba was $315,040.  The total amount attempted to be obtained was $186,080.  The total amount obtained by you, Olar, was $17, 920 and the total amount attempted to be obtained was $20,080.  I was informed the police have recovered none of these funds other than the small amount which you had in your possession when arrested.

11On 17 June 2016 a skimming device was attached to the ATM at Aireys Inlet.  CCTV shows you both leaving the hotel in the early hours of the morning carrying a skimming device and a pinhole camera. 

12On return to your hotel you were arrested in possession of the skimming device.  Karaba, you had your passport, various credit cards and $1,820 in your possession.  Olar, you had your passport, credit cards, $411 and a skimming device.  Also located were wires and components for a skimming device, 5,000 Euros and an iPhone. 

13Computers and storage devices seized contained thousands of images and videos taken from skimming devices.  Neither of you were interviewed by police.

14As to your personal circumstances, Mr Karaba, you are currently aged 35 and were both in Romania.  Your father is deceased and your mother, a factory worker, lives in that country with your younger brother.

15You previously were employed in the building industry in Romania.  You came to Perth from Romania with a friend in July 2015 with the intention of seeking work in the form of unskilled labour.  I was informed that you were misled as to the availability of such work and then you then came to Melbourne on your own.  By the time you came to Melbourne your visa had expired and you were unemployed.  This was the situation for a period of about four months before your offending commenced.

16Whilst in Melbourne you engaged with the local Romanian community.  You were approached by one of its members to become involved in this scheme, and given your financial predicament, agreed.

17As noted above, you obtained and attempted to obtain a significant amount of funds.  I was informed that you were motivated to be involved as a source of income or reward for your participation.

18Mr Olar, you are currently aged 36.  You were born in Romania and grew up there with your parents and brother.  You completed schooling although your family could not afford to send you to university.  Your parents separated and you remained living with your father.

19When you were aged 22 you left Romania and worked in France on a casual basis in the hospitality industry.  In about 2007 you went to Ireland and have lived there since with your wife who is also from Romania.  You have a young son born in October 2013 who has had medical issues relating to his birth with a club foot that requires regular medication attention.

20You have been gainfully employed in Ireland and I was informed that you came to Australia to look for more lucrative work and a better lifestyle for your family.  You had a return ticket, and given your family circumstances, I accept that you always intended to return to Ireland.

21I received a bundle of references from your family and a recruitment consultant.  You are a hardworking and good family man.  I take the material tendered on your behalf into account.

22Since you have been in custody you have very limited contact with your wife and child and you are relatively isolated and concerned for your family's welfare I accept that custody is more onerous for you given this factor.

23As to how you became involved I was informed that when you came to Australia you reacquainted with Mr Karaba who you had known for a period of time in Romania.  I was informed that you found out about his illegal activities and decided at that time to also participate.

24Both of you have been in custody since your arrest in June last year.  This is the first time that you have been incarcerated. 

25Both your counsel emphasised the roles played by each of you.  It was submitted that although you both played a necessary part in it neither of you were at the top of the organisational structure.  You could both be described as workers or foot soldiers.  The prosecution were not in a position to accurately confirm your respective positions within the organisation involved in the scheme.  There was, however, no evidence to suggest that you became involved prior to either of you arriving in Melbourne.

26Karaba, you were more actively involved in the actual attendance at many locations for withdrawal.  Additionally, you have pleaded guilty to a broader conspiracy involving others unknown. 

27It is clear, Olar, that your involvement was more limited than that of Karaba, but it is important to keep in mind that the crime to which you have both pleaded is a conspiracy or agreement to defraud.

28You, Karaba, pleaded guilty at an early opportunity.  I was informed that delay in respect of your plea, Mr Olar, related to the charge of conspiracy rather than your involvement in dishonest, criminal behaviour.  You both will receive the full benefit of your plea.

29Your pleas have saved significant cost to the community given some of the complexities involved with this offending.  The running of the trial would have been lengthy, complicated and have involved substantial cost.  I accept that your pleas are also indicative of a level of remorse.

30This 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.  Such schemes, with confidential data being shared with others, presents very serious risks of loss to major institutions and also customer confidence and convenience.  A significant amount of people are affected by such offending including customers and bank employees as revealed in the Victim Impact Statement provided to me.

31Further, offending of this nature is very difficult to detect.  It was unlikely to have ceased unless police had apprehended you both after your activities were discovered at Aireys Inlet.  Your offending, Karaba, continued persistently for seven months and a substantial amount of funds were withdrawn or attempted to be withdrawn.

32It was not suggested that issues of parity arise given the differing lengths of time each of you were involved and the substantial difference in the amount of funds obtained or attempted to be obtained.

33Neither of you have prior convictions.  You, Olar, have utilised your time usefully whilst in custody, participating in courses and working as a billet.  You will continue to have family support and your employment prospects appear good.  In respect of you, Karaba, little information was provided to me regarding your rehabilitation prospects.  I presume you will have family support in your home country.

34I was provided with copies of authorities for similar kinds of offending involving card skimming schemes.  I have had regard to these materials though the assistance they can provide is limited given the different circumstances in each individual case, in particular, the period in which an individual is involved, the amount obtained or attempted to be obtained, and the level or role played as well as personal circumstances vary from case to case.

35The prosecution submitted that, given the serious nature of your offending, the only sentencing option was the imposition of a sentence of imprisonment.  Both your counsel conceded imprisonment was the appropriate disposition, however your counsel, Olar, suggested a sentence where your release would be immediate.  You have both served 364 days.

36The sentencing principles of just punishment, denunciation and general deterrence are matters which I must take into account.  Principles of specific deterrence have more application to you, Mr Karaba, given the regularity of your conduct that constituted the offending over a significant period of time. 

37I take into account your pleas of guilty, personal circumstances and the previous good character of you both.  If you could both stand please.

38In respect of Charge 1, Mr Karaba, you are convicted and sentenced to a period of imprisonment of three and a half years with a non-parole period of two years and three months.

39In respect of you, Mr Olar, you are convicted and sentenced to a period of imprisonment of 364 days. 

40I declare pre-sentence detention in respect of both of you of 364 days. Pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty to this matter, Mr Karaba, I would have sentenced you to a period of imprisonment of five years with a non-parole period of three and a half years, and in respect of you, Mr Olar, a sentence of imprisonment of two years.

41Are there any other orders that I need to make?

42MR PICKERING:  No, Your Honour, you made ancillary orders last week. 

43HER HONOUR:  Yes, thank you. 

44MR PICKERING:  Just one small factual matter I noticed, Your Honour, and it might have been because Your Honour didn't have your glasses on at the time is that at the time of arrest they were not interviewed rather than no comment.

45HER HONOUR:  Very well, I will delete that from the revised reasons.

46MR PICKERING:  Yes, Your Honour, while I'm on my feet, just on the last occasion you were referred to your own decision of Hotyier and Sippos which is not on or the County Court website.  Are the sentencing remarks revised for that because - I know it's some time ago - but if they were I was wondering whether a copy could be obtained because of course that then fits into the sequence of all these cases. 

47HER HONOUR:  Yes, look, I printed them out myself when I was working on this, so I can provide those to you. 

48MR PICKERING:  If Your Honour pleases.

49HER HONOUR:  I will ask my associate to email them to you, thank you. 

50MR PICKERING:  Thank you. 

51HER HONOUR:  Thank you, any other matters? 

52MR AJAK:  As Your Honour pleases.

53MR DICKINSON:  As Your Honour pleases.

54MR PICKERING:  As Your Honour pleases.

‑ ‑ ‑