R v Cirstian, Grigore and Radu
[2015] VCC 117
•4 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-14-01922
CR-14-01921
CR-14-01920
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V ION-DINU CIRSTIAN (ALSO KNOWN AS ION-DINU POPA), |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2015 | |
DATE OF SENTENCE: | 4 February 2015 | |
CASE MAY BE CITED AS: | R v Cirstian, Grigore and Radu | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 117 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Hoare | OPP Victoria |
| For the accused Cirstian For the accused Grigore For the accused Radu | Mr S. Devlin Mr C. Thomson Mr A. Lewin | Melesseca, Kelly and Zayler Valos Black Turnbull Lawyers |
HIS HONOUR:
1 Ion-Dinu Cirstian, Cristian Mihail Grigore and Daniel Stefanita Radu, you have each pleaded guilty to one charge of conspiracy to defraud (Charge 1). Mr Cirstian, you have also pleaded guilty to two charges of delivering false documents relating to non-citizens.
2 The common law crime of conspiracy to cheat and defraud carries a maximum penalty of 15 years' imprisonment. The Commonwealth charges under the Migration Act 1958 carry a maximum penalty of ten years' imprisonment.
3 The prosecutor, Mr Hoare, opened the circumstances of the offending by reading from a written ‘Summary of Prosecution Opening’ which was tendered. The three of you are UK based Romanian nationals and came to Australia as part of a joint criminal enterprise to collect and use stolen bankcard data to dishonestly obtain cash from ATMs. The activity you engaged in is commonly called ‘card skimming’. Card skimming equipment was installed, data collected and cash withdrawn. Information you obtained was also used by others to make or attempt to make overseas cash withdrawals, although this sum is modest ($3383.50 being withdrawn and $1740.10 being attempted to be withdrawn).
4
Two of you (Cirstain and Radu) were arrested on 10 June 2014 when you fled on being approached by police whilst removing a skimming device.
Mr Grigore, you initially avoided apprehension and fled interstate but were arrested in New South Wales and extradited to Victoria. This occurred about a month after the arrest of your co-offenders.
5 It was not contested on the plea that you were linked to a UK based Romanian organised crime syndicate with links to New South Wales where another group similar to yours was active. The precise nature of your link to others is unclear but it was accepted on the plea that Romanian criminals were aware of your activities and received reports from you and that you were in contact with your New South Wales counterparts. You used information skimmed in New South Wales to obtain money from ATMs in Victoria and information skimmed in Victoria was used to withdraw money in New South Wales although the only one of you identified personally making withdrawals in New South Wales was you, Mr Grigore.
6 Mr Grigore, you were the first to arrive in Australia, doing so on 11 April 2014. Mr Radu, you arrived next on 14 May 2014 and finally, you, Mr Cirstian, arrived on 20 May 2014.
7 The conspiracy was of short duration from 30 May 2014 until 10 June 2014 when the arrest of two of you brought it to an end. The sums obtained are relatively modest, totalling $16,665. An additional total of $11,432 was attempted to be obtained but frustrated by bank detection. Accordingly, a total of about $28,000 was either obtained or attempted to be obtained.
8 Motorcars were hired to facilitate the conspiracy by providing transport between ATMs.
9 Of course your actions in pursuit of the conspiracy are relevant and need to be identified, but it is also important to keep in mind that the crime to which each of you has pleaded guilty is a conspiracy to defraud which was partly frustrated and brought to an end by effective detection.
10 Your offending, as well as causing direct loss, undermines confidence in the banking system, banking detection and protection systems operated to avoid greater loss than was incurred.
11 Of course skimming schemes, particularly when skimmed data is provided to others, presents a serious risk of loss even where actual loss is limited. Skimming activity affects not only customer confidence but obviously customer convenience. Trust in the banking system is crucial. The equipment used by you was purpose built and requires some skill to operate. The provision of data to others, the overseas and interstate use of the data and the accepted international connections and oversight makes the offending more serious than it would be without these features.
12
Charges 2 and 3 concern you alone, Mr Cirstian. You provided false information to authorities to secure entry to Australia. In particular, on
15 March 2014 you stated you had not been previously known by any name other than Cirstian and on 20 May 2014 on entry to Australia you indicated you had no prior convictions. Both these statements were false.
13
Each of your counsel emphasised the role played by each of you, noting that you operated at a low level as “foot soldiers’ to pick up the language of
Mr Devlin.
14 In each of your cases the early offer to plead guilty, the limited duration of the conspiracy, the relatively modest sums obtained and attempted to be obtained, together with the consequent likely modest financial gains resulting from your offending was emphasised.
15 Of course your pleas of guilty are important and you must benefit from making these pleas. Each of you has also agreed to me making a compensation order and this once again is to the credit of each of you.
16 Mr Devlin appeared for you, Mr Cirstian.
17 He outlined your background, noting that you come from a poor background and were vulnerable to being enticed into the scheme.
18 You had been recently married and have a young child who was born only five days before you came to Australia. Your motivation for the offending being to obtain money for your family. You have now been separated from them for almost nine months and are understandably desperate to return to them.
19 Mr Devlin submitted that you were still relatively young yourself, being only 27. You lost your mother aged four and your father aged 15. You left school early to support your family. You moved to England in 2006 to obtain work where you met your wife, returning to Romania to marry in November 2013.
20 A number of character references were tendered on your behalf. They speak well of you, confirming that you had a disadvantaged upbringing and noting that you regret your current offending and provide some evidence of remorse. It seems you have employment with a previous employer awaiting for you in the UK. Of course you are missed and your family and friends want to see you reunited with your wife and young child.
21 You have undertaken some courses in prison.
22 Mr Devlin conceded that only imprisonment was appropriate for Charge 1. Indeed it was conceded on behalf of each of you that only imprisonment was appropriate.
23 Mr Devlin also conceded that imprisonment was appropriate for Charges 2 and 3 in all the circumstances but argued that such terms should be concurrent with each other and with the sentence on Charge 1. Mr Hoare pressed, somewhat lightly, for some accumulation, however I expressed the tentative view in discussion that total concurrency was appropriate. That is still my view.
24 You have spent 239 days in pre-sentence detention. This period is to be reckoned as time already served under the sentence I will impose.
25 Unlike your co-offenders, you have a criminal history including dishonesty offending. You have been placed on a community punishment and rehabilitation order for going equipped to cheat. You have been given a suspended sentence of imprisonment for a term of six months for attempted theft from a meter. Both these penalties were imposed in 2007.
26 Mr Thomson appeared for you, Mr Grigore. You are 36 years old. You come from a well-educated family and were well educated yourself, completing an engineering degree in 2003. You were married in 2006 and have two children aged seven and four.
27 You have had a problem with gambling and left Romania for the UK in 2009 to make a fresh start after losing most of your assets. Unfortunately you began gambling again. In 2012 your wife left you and returned to Romania with your children.
28 You then suffered significant injuries to your face and left arm in a motorcar accident. You lost your restaurant franchise and needed additional money for a facial reconstruction that had been scheduled for December 2014. You engaged in the current offending to make money to pay for the surgery.
29 You have now been in custody for 208 days. This period is to be reckoned as time already served under the sentence I will impose.
30 You have decided not to contact your family because you fear that, if they need you and you cannot assist, this will only add to your desperation. You also told your counsel that you do not want to bring shame on your family because of your offending.
31 You have been active in prison and are the head baker at MAP. Your counsel said that the longer the operation to your face is delayed, the greater the risks of complications. The prosecution did not challenge this and I am prepared to accept that it is highly desirable that you have the operation as soon as possible, though where the funds will come from and when it can be arranged are real problems.
32 Mr Lewin appeared for you, Mr Radu. You are 32 years old. You were born in Romania and your parents separated when you were young. You then went to live with your father and stepmother in England. You have worked mainly in building construction doing plastering work and were able to save enough money to buy a house with your father. You have dual citizenship in Romania and the UK and intend on release to return to Europe to pursue a career in mechanics.
33 Like Mr Cirstian, you have been in custody for 239 days. This period is to be reckoned as time already served on the sentence I will impose.
34 A strong body of character material was tendered on your behalf. Your parents are devastated by your incarceration here in Australia and are at a loss to understand why you did what you did. You have a strong network of family and friends to support you on your release and return to Europe. There is employment for you.
35 It is not clear what motivated a man like you to engage in the current offending.
36 You have been making the most of your time in prison by undertaking courses to assist to develop your skills and further your rehabilitation. Certificates attesting to this as well as drug screening certificates were tendered. You also wrote a letter of remorse and apology for your actions that was prepared for the Magistrates' Court.
37 Concerning all three of you, I accept that the conspiracy was limited in duration, the total sum of money obtained was relatively low, as was the total sum attempted to be obtained. Each of you had hands-on roles at the coal face of the criminal activity, rather than overseeing and organising the criminal venture. However, you did have access to and were able to employ a skimming device and you did provide skimmed data to others.
38 I accept that the financial advantage each of your received was modest. Mr Grigore, you were found with $6000 cash when arrested and this gives some measure of the financial benefit that you and your co-conspirators obtained.
39 All three of you are likely to be deported on release from prison.
40
All defence counsel submitted that I should fix a non-parole period that would permit release on parole either immediately or soon. The prosecution responded that time served to date was not sufficient and that some further time, although not a great deal of time, should be served. Of course,
Mr Grigore, you have been in custody for about a month less than your
co-offenders.
41 The rehabilitation prospects of you, Mr Grigore, and you, Mr Radu, are better that yours, Mr Cirstian. The requirements of specific deterrence are more weighty in your case, Mr Cirstian. However, you have had a more disadvantaged life than your co-offenders.
42
Mr Grigore and Mr Radu, you will each be convicted and sentenced to
20 months' imprisonment. I fix ten months in each of your cases as the period you must serve before being eligible for release on parole.
43 Had you not pleaded guilty I expect I would have sentenced each of you to about 30 months imprisonment and required you to serve about 20 months before being eligible for release on parole.
44 Mr Cirstian, you will be convicted of all three charges. On Charge 1, you will be sentenced to two years' imprisonment. I fix 12 months as the term you must serve before being eligible for release on parole. This sentence is to begin today.
45 On each of Charges 2 and 3 you will be sentenced to one month's imprisonment. In each instance, this sentence is to begin today. Accordingly, all sentences are to be served concurrently.
46 Had you not pleaded guilty, I expect I would have sentenced you to about three years' imprisonment and required you to serve about two years before being eligible for release on parole.
47 You can sit down, gentlemen.
48 Is there anything further that I need to do or anything that needs correcting?
49 MR LEWIN: Your Honour referred to in the reasons, but the declaration of pre-sentence detention I assume - - -
50 HIS HONOUR: I did, yes. I think in broad terms - I did make the calculation, but I will not repeat it now - between two and four months, I think, for each of the accused to serve, from memory.
51 MR LEWIN: Yes.
52 HIS HONOUR: Two and a bit months for Mr Radu, I think, three and a bit months for Mr Grigore and I think four and a bit months for Mr Cirstian. So time served is to be deleted, obviously, for the benefit of the accused from the sentences that I have imposed.
53 COUNSEL: As Your Honour pleases.
54 HIS HONOUR: Do you want to speak to your clients before they are taken away?
55 MR THOMPSON: Yes please, Your Honour.
56 HIS HONOUR: Is there any problem about counsel doing that? Because if there is not, then I will leave the Bench and you can do that.
57 VOICE (from body of the court): That should be fine, Your Honour.
58 HIS HONOUR: Thank you very much. I will leave the Bench.
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