Georges v The Queen
[2015] VSCA 82
•1 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0087
| CHRISTIAN GEORGES | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BONGIORNO and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 May 2015 |
| DATE OF JUDGMENT: | 1 May 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 82 |
| JUDGMENT APPEALED FROM: | DPP v Georges (Unreported, County Court of Victoria, Judge Gaynor, 11 April 2014) |
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CRIMINAL LAW – Sentence – Applicant convicted of two charges of conspiracy to defraud – Appellant and co-offenders engaged in ‘card skimming’ and ‘cash trapping’ at Automatic Teller Machines – Sentence 6 years’ imprisonment with non-parole period of 4 years –Whether sentence manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Crown | G Silbert 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, the applicant 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.[2] 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.
[2]In her reasons for sentence, the judge announced that the sentence to be imposed on the applicant on the second charge was two (2) years’ imprisonment. This appears to have been a slip, since the relevant Record of Orders signed by the judge records that the sentence imposed on the second charge was three (3) years’ imprisonment.
On 6 August 2014, a judge of this Court refused the applicant leave to appeal against the sentence.
Not content to abide that result, as is his right, the applicant elected to renew his application for leave to appeal. He relies on a ground expressed as follows:
1.It is submitted that:
a.The sentence imposed on Charge 1, being 5 years imprisonment, is manifestly excessive;
b.The sentence imposed on Charge 2, being 2 years imprisonment, is manifestly excessive;
c.The order that 12 months of the sentence imposed on charge 2 be served cumulatively to the sentence imposed on charge [1] is manifestly excessive;
d.The total effective sentence of 6 years imprisonment is, consequently, manifestly excessive; and
e.The non-parole of 4 years is, consequently, manifestly excessive.
For the reasons that follow, I would refuse leave to appeal.
Procedural history in this Court
On 10 February 2015, the application came before the Court as presently constituted. The applicant was then, as he is now, unrepresented (although a written case, prepared by counsel, had been filed in support of his application). On that occasion, the applicant attempted to address submissions to the Court on matters which, on their face, constituted fresh evidence, concerning assistance given to law enforcement authorities. As a result, the Court adjourned for a short period, and arrangements were made through the Victorian Bar’s pro bono scheme for a barrister to attend and advise the applicant.
Later that day, pro bono counsel informed the Court that the applicant did indeed seek to rely on fresh evidence. The Court advised the applicant that if he wished to rely on fresh evidence, such evidence needed to be put into proper form; and that if he wished to have documents produced from a body or person, he needed to seek an order from the Court to compel production. He was told that the Court could not countenance unsupported assertions from him, and that any contentions about new facts needed to be supported by evidence. Since it was desirable — if not necessary — for the applicant to be represented by a legal practitioner, the Court resolved to adjourn the matter to a date to be fixed, and directed the applicant to apply for a grant of legal aid.
The matter has returned before the Court today. We have been informed that the applicant sought a grant of legal aid, but that it was refused. Further, the Court was informed that registry staff endeavoured to assist the applicant by arranging for further pro bono assistance for him, but he declined to sign the necessary authority. No approach was made to the Court to make an order for production of any document from any person or body. In those circumstances, the Court had little option but to deal with the application without the applicant being represented, or otherwise assisted, by a lawyer.
For the sake of completeness, I note that, although the applicant had the services of a Romanian interpreter when last before the Court, he availed himself little of her services. In the main, he addressed the Court directly. Although accented, his spoken English appeared good. He certainly seemed to understand what was being said to him without recourse to the interpreter. The same was true of his appearance today. He had the services of an interpreter, of which he intermittently availed himself, often answering questions directly in English without waiting for them to be interpreted. Indeed, he struck me as being moderately fluent.
The offending and the sentences passed on co-offenders
The applicant had three co-offenders, Florinel Camara,[3] Antal Donka and Velentin Anania. 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’. The applicant and Camara also pleaded guilty to a second charge of conspiracy to defraud divers financial institutions between 3 and 4 August 2013.
[3]See Camara v The Queen [2015] VSCA 20 (‘Camara’).
Ultimately Donka was sentenced to be imprisoned for two (2) years, with a non-parole period of 16 months; and Anania was sentenced to be imprisoned for three (3) years, upon which a non-parole period of two (2) years was fixed.
The sentence of imprisonment passed on the applicant was identical to that initially imposed on Camara.[4] On appeal, however, Camara was sentenced to four (4) years’ imprisonment on the first charge, and to two (2) years and six (6) months’ imprisonment on the second, one year of which was ordered to be served cumulatively. The total effective sentence was thus five (5) years’ imprisonment, upon which a non-parole period of three (3) years was fixed. Although the Court said that, all things being equal, the sentence imposed could not be said to be manifestly excessive,[5] nonetheless appellate intervention was justified. I observed:[6]
Although there appears to me to be no warrant to distinguish between the appellant and Georges so far as their roles in the offending are concerned, nonetheless there should have been, in my view, some allowance for the appellant’s relative youth vis-à-vis Georges, and his absence of any criminal history. The individual sentences imposed on each charge, the total effective sentence and non-parole period do not reflect these important factors.
[4]See n. 2 above.
[5]Camara, [26].
[6]Camara, [29].
When giving judgment in Camara, I described the offending as follows:[7]
[7]Camara, [9]–[15].
The charges against the four offenders arose out of activities described as ‘cash skimming’ and ‘cash trapping’, which are both techniques by which the offenders illegally acquired money to which they were not entitled from Automatic Teller Machines (ATMs) throughout Victoria.
Card skimming involves a device being attached to the outside of an ATM which, by means of a hidden camera, secretly records a cardholder’s Personal Identification Number (PIN). Bogus cards are then created and the PIN is used to access the genuine cardholder’s funds.
Cash trapping involves an offender making a small withdrawal on a pre-paid credit card. A small, fork-like instrument is inserted into the ATM when the money is being dispensed. The fork is then left in the cash dispenser to ‘trap’ the cash from a second transaction. A second card is then inserted and a large amount of funds — usually the daily limit — is withdrawn. The offender then, by removing the fork, collects the cash which the fork has trapped. As part of this process, the ATM records a ‘bill dispense error’ and reverses the transaction, reimbursing the card holder’s account. The process can be repeated multiple times without recording any debit on the card holder’s account.
Charge 1 — which related to a period between 3 December 2012 and 12 March 2013 — involved the four conspirators using cash trapping techniques at 248 individual ATMs. A total of $184,920 was stolen. CCTV footage showed [Camara] using the relevant ATMs in all of the transactions. [The applicant] was observed using an umbrella or other object to obscure or move the CCTV cameras. On occasion he removed cash from the machines. Donka and Anania acted either as lookouts or drivers. [Camara] was arrested on 12 March 2013. He made a ‘no comment’ interview and was later released on bail.
Charge 2 — which related to 3 and 4 August 2013 — occurred after [Camara] was released on bail. [Camara] and [the applicant] were observed acting suspiciously near an ATM in Broadford. Over the course of an hour from late 3 August to early 4 August 2013, 20 illegal transactions resulted in $6,920 being skimmed from 14 separate accounts.
When confronted by police [Camara] and [the applicant] fled. [The applicant] was captured hiding nearby in long grass. He was in possession of $6,920 and a car key which was used to open a car in the near vicinity. Police found [Camara’s] and [the applicant’s] wallets, which both contained identifying documents. The car contained $18,390 in cash, latex gloves and clothing used by the men during card skimming operations over previous days. A Myer gift card was found taped over the CCTV camera at the ATM.
Subsequently, investigators found that a card skimming device had been fitted to the CBA ATM on Ormond Road, Elwood. CCTV footage on 3 August 2013 showed [Camara] and [the applicant] at the NAB ATM on Victoria Street, Richmond, and at the HSBC ATM on Swan Street, Richmond, which were two locations where unauthorised transactions using the information skimmed from the CBA ATM were made. Further, between 3 and 5 August 2013, data stolen from ANZ accounts was used for four unauthorised transactions totalling $5,090, and data stolen from CBA accounts was used to make 13 unauthorised transactions totalling $20,510.
The offence which was the subject of the second charge occurred after the applicant had been arrested, charged and bailed in relation to the first. He was arrested and remanded in custody on 4 August 2013.
Submissions in the County Court
As was canvassed in Camara, counsel for Camara submitted that he was in the applicant’s thrall, and had become involved in the offending at the applicant’s behest. The applicant, by both age and management, was the most senior figure in the conspiracy, and Camara was the youngest, and possibly most naïve, of the four conspirators. Camara was aged 23 years at the time of the offending, and the applicant was aged 52 years. The applicant was a father figure, who supplied Camara with alcohol. Camara’s counsel submitted that the applicant told him that he needed to become involved in the card skimming and cash trapping to pay for the supply of drugs and alcohol.[8]
[8]Camara, [17].
Through his counsel, however, the applicant rejected what was put by Camara as a self-serving and simplistic argument based on the applicant’s age, there being nothing in the evidence to support the notion that he exercised influence or control over Camara. Moreover, the applicant denied that he introduced Camara to cocaine or was supplying him with the drug. Counsel contended that Camara was the only person to appear in the CCTV footage each time a bank was targeted. The applicant and the other co-conspirators do not feature in the same way. This suggests that the applicant had a lesser role than Camara. It was Camara who had shown him the process of card skimming and cash trapping. The applicant disagreed with the assertion that the CCTV footage showing him taking money, once removed from the ATMs, indicated his general role. That occurred only once. He had no knowledge of where the bulk of the money went after it was removed from the machines. The exception was when the applicant was arrested on the second conspiracy with the proceeds, $6,920, in his pocket because they had been interrupted by police. It was submitted that the applicant had received payment for his participation from Camara, which he estimated to total between $10,000 to $15,000.
The applicant, counsel submitted, had no drug or alcohol issues and the only motivating factor for the offending was financial gain.
Despite the matter having a lengthy history in the Magistrates’ Court, the applicant entered guilty pleas on 20 December 2013. The delay was attributable to the applicant initially being self-represented after declining legal assistance from Victoria Legal Aid (VLA), he having been unhappy with their service on a previous occasion. Once a private firm (funded by VLA) became involved the matter resolved. The applicant’s initial pleas of not guilty in the Magistrates’ Court owed to a lack of understanding as to the nature of the conspiracy charges, but he was persuaded to enter guilty pleas once explained to him. The applicant, it was argued, should attract the benefit of an early plea.
As to his personal history, the applicant was born and educated in Romania. He pursued a professional career as a soccer player until migrating with his wife and children, first to Austria, then to Australia, in the 1980s. A motor vehicle accident in the mid-1980s ended his playing career in Australia, and ushered in significant changes in his life. Not only was he unable to resume his professional soccer career, but he became involved with a group of people from which serious drug trafficking charges resulted. He was on bail for four years for trafficking offences, until being convicted in 1990 and receiving a sentence of eight (8) years and seven (7) months’ imprisonment with a non-parole period of seven (7) years and six (6) months. The applicant was, however, granted early release in 1995 because of his youth and limited prior history.
Soon after release in 1995 he returned to Romania with his family, where he remained for ten years. The applicant and his wife returned to Australia in 2005 at the request of his daughters. Upon returning to Australia in 2005, he was employed as a truck driver. After being charged and bailed on the first conspiracy charge, the applicant returned to work driving trucks, but was let go because he could not drive to the docks (his bail conditions prohibiting his attendance at international points of departure). His involvement in the second conspiracy was motivated by financial hardship.
About six to twelve months prior to his arrest on the first conspiracy, so it was submitted, the applicant turned to gambling in the hope of relieving the family’s financial hardship, but that led to his spending all the income he had on poker machines. It was submitted that the applicant maintained a modest home in Altona Meadows and there was nothing by way of assets or goods to suggest unjust enrichment.
As to the suggestion that the applicant is wanted in Romania on a conviction for trafficking drugs, where a sentence of nine (9) years and six (6) months’ imprisonment was imposed on 22 December 2003, the applicant’s counsel submitted that he had run a trial and was found not guilty; but he was subsequently convicted on appeal and sentenced in his absence.
The sentencing reasons
The judge took into account the applicant’s personal history as outlined by his counsel, including his fairly significant criminal history. She was of the view that the applicant had entered a plea at an early stage. A long and complex trial had been avoided. The applicant maintains the support of his family. He does, however, have a serious prior criminal history, and, along with Camara, played a major role in the conspiracies, including continuing the offending while on bail. The judge assessed the applicant’s prospects of rehabilitation as no higher than fair.
Her Honour observed that the offending was a serious and sophisticated attack on the integrity of the electronic banking system patronised by most of the community, which had the capacity to affect the everyday lives of many people. To protect the system, the Court’s response must be one of particular sternness, with sentences designed to deter others from like offending, to mark the seriousness of the offending and to punish the offenders.
Submissions in this Court
In the written case prepared by counsel on the applicant’s behalf, it was submitted that the individual sentences, total effective sentence and non-parole period were manifestly excessive, having regard to the applicant’s early plea of guilty, his remorse and his role in the conspiracy.
It was submitted in writing that the quantum of the sums peculated did not justify sentences of the order imposed. Further, the sentences imposed did not adequately reflect the utilitarian value of the plea of guilty. Additionally, the applicant had expressed his remorse to a psychologist, in a report tendered on the plea. The applicant’s criminal history, it was submitted, is limited, and the applicant should not be punished again for his prior convictions.
In oral submissions today, the applicant told the Court that he had given assistance to the authorities about a further conspirator — to that point unidentified — higher in the criminal enterprise. The Crown rejected this submission, and the Court was informed by counsel for the respondent that the applicant had given no assistance whatsoever to the authorities. I note again that this application was previously adjourned so that the applicant could put before the Court evidence, of proper form, of his claimed assistance. The offer of an order for production was made. In the result, no further evidence was forthcoming, and the Court was not prevailed upon to make an order for production.
The applicant also orally informed the Court that he was remporseful, and that his actions had been ‘stupid’. He had lost everything he had in life; and he wanted to get back to the care of his daughters, aged 19 and 15 years. The applicant ‘begged’ the Court to reduce his sentence to the same level as that of Camara.
Discussion
As the Court observed in Camara — and as is equally apposite in the present case — the offending on charge 1 was brazen and protracted, sophisticated and sustained. It involved at least 248 separate transactions and a total of $184,920.[9]
[9]Camara, [27].
Further, the offending that is the subject of the second charge occurred whilst the applicant was on bail. This is an aggravating feature.[10] Although by comparison to the first charge, the offending on the second charge related to a relatively short period, and to fewer transactions and a smaller amount of money (that is, 20 illegal transactions resulting in $6,920 being skimmed from 14 separate accounts) specific deterrence and community protection were of particular importance, as were general deterrence, just punishment and curial denunciation. Hence, I cannot see that the individual sentence of three years’ imprisonment — upon which the judge ordered
only one year’s cumulation — might be said to be outside the appropriate range.
[10]R v Gray [1977] VR 225, 229-230 (McInerney and Crockett JJ, Gillard J agreeing); R v Treloar and Butler (1989) 43 A Crim R 75, 80 (Crockett J, Fullagar and Marks JJ agreeing); R v Basso & Frazetto (1999) 108 A Crim R 392, 397-8 [21]-[26] (Chernov JA), 404-5 [57]-[63] (Charles JA); DPP v Galea and Mosut (2000) 112 A Crim R 507; R v Pop (2000) 116 A Crim R 398. See also s 16(3C) of the Sentencing Act 1991, which requires that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences ‘must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term’.
I am unpersuaded by suggestions that the applicant played a lesser role than Camara in the offending. The evidence contradicts that assertion.
Indeed, in my view, the only significant matters that distinguish the applicant from Camara, are Camara’s relative youth and his absence of any criminal history. Those distinguishing features justified Camara in receiving a slightly more moderate sentence than the applicant. They cannot avail the applicant.
In my opinion, the individual sentences, the order for cumulation, the resulting total effective sentence and non-parole period are all well within the range available to the judge in the sound exercise of the sentencing discretion.
The application for leave to appeal against sentence is without merit. It must be refused.
BONGIORNO JA:
For the reasons given by Priest JA I agree that the application for leave to appeal should be refused and I have nothing to add.
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