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Smith v The Queen

Smith v The Queen

Case [2018] VSCA 208 24 August 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0037

TONY SMITH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 August 2018
DATE OF JUDGMENT:	24 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 208
JUDGMENT APPEALED FROM:	[2018] VCC 75 (Judge Ryan)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Conspiracy to defraud by ‘ghost terminal skimming’ – Imprisonment more burdensome by reason of ill health – Whether mitigating factor overlooked – Whether markedly different sentence would follow had the matter been taken into account – No different sentence should be imposed – Leave granted, appeal dismissed – R v Koumis (2008) 18 VR 434 and R v Van Boxtel (2005) 11 VR 258 applied – Criminal Procedure Act 2009 s 281.

CRIMINAL LAW – Sentence – Manifest excess – Not arguable – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Mr P J Smallwood	Starke Westwood Lawyers
For the Respondent	Mr B L Sonnet with Ms R Harper	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
KYROU JA:

On 17 August 2017, following eight days of pre-empanelment argument before a judge in the County Court, the applicant pleaded guilty to a single charge of conspiracy to defraud. A plea hearing involving contested issues of fact was conducted over three hearing days in November and December 2017. On 9 February 2018 the applicant was sentenced to a term of imprisonment of three years.[1] A non-parole period of two years was fixed. The maximum penalty for the offence to which he had pleaded guilty was 15 years’ imprisonment.
[1]DPP v Smith [2018] VCC 75 [59] (‘Reasons’).

The applicant now seeks leave to appeal the sentence on two proposed grounds. The first is that the sentencing judge erred by failing to take into account that imprisonment would be a greater burden on the applicant because of his serious physical illness. The second is that the sentence imposed is manifestly excessive.

Circumstances of the offending

The applicant was part of a fraudulent scheme described in the prosecution opening on the plea as ‘ghost terminal skimming’. Under such schemes wireless EFTPOS terminals are purchased and the software is modified in order to capture and store credit and debit card data and personal identification numbers (PINs). The modified devices appear to be legitimate EFTPOS terminals. The devices are then placed in situations where small transactions take place, such as in taxis and convenience stores. This requires the dishonest cooperation of the taxi drivers, convenience store employees or others to whom the devices are given. The modified devices download stored data on credit and debit cards which the participants in the conspiracy place on a computer and then transfer to a magstripe card, such as a blank gift card. The magstripe card, with the stolen data encoded on it, is then used at automatic teller machines (‘ATMs’) to make cash withdrawals.

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.

Continue reading Smith v The Queen

Details

AGLC: Smith v The Queen [2018] VSCA 208
Case: [2018] VSCA 208
Decision Date: 24 August 2018

CaseChat Overview and Summary

The matter of Smith v The Queen involved a defendant convicted of conspiracy to defraud by means of a 'ghost terminal skimming' device. The case was heard by the Supreme Court of Victoria, which was called upon to review the defendant's application for leave to appeal against his sentence, as well as the Crown's application to refuse leave. The defendant argued that his sentence should be reconsidered, citing his ill health as a mitigating factor that had not been adequately taken into account by the sentencing judge.

The court was tasked with determining whether the defendant's ill health was a mitigating factor that had been overlooked by the sentencing judge, and whether a markedly different sentence would have resulted if it had been properly considered. Additionally, the court had to assess if the sentence imposed was manifestly excessive. The Crown opposed the application for leave to appeal, arguing that the sentence was appropriate and that the mitigating factor of ill health had been adequately considered.

In its decision, the court found that the mitigating factor of the defendant's ill health had not been overlooked but had been considered by the sentencing judge. The court also determined that even if the mitigating factor had been more heavily weighted, it would not have resulted in a markedly different sentence. Furthermore, the court concluded that the sentence was not manifestly excessive. Consequently, the application for leave to appeal was granted, but the appeal was ultimately dismissed. The court's reasoning and findings were guided by precedents established in R v Koumis and R v Van Boxtel, as well as the provisions of the Criminal Procedure Act 2009.

Orders