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Zamfirescu v The Queen

Zamfirescu v The Queen

Case [2012] VSCA 157 25 July 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0315

CATALIN ZAMFIRESCU	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG and MANDIE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 July 2012
DATE OF JUDGMENT	25 July 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 157
JUDGMENT APPEALED FROM	DPP v Zamfirescu (Unreported, County Court of Victoria, Judge Parsons, 26 September 2011)

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CRIMINAL LAW — Appeal against sentence — Plea of guilty to two counts of conspiracy to defraud relating to card skimming — Total effective sentence of five years with a non-parole period of four years — Whether non-parole period disproportionately high — Whether sentence manifestly excessive —Importance of specific deterrence having regard to appellant’s prior convictions for similar offending — No single correct ratio between non-parole period and head sentence — Appeal dismissed — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M J Croucher SC	Serratore Legal
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

On 15 August 2011, the appellant pleaded guilty in the County Court at Melbourne to two charges of conspiracy to defraud. Each offence carries a maximum of 15 years’ imprisonment. He was sentenced on charge 1 to 12 months’ imprisonment, and on charge 2 to four years and six months’ imprisonment. Six months of the sentence on charge 1 was made cumulative upon the sentence on charge 2, making a total effective sentence of five years’ imprisonment. A non-parole period of four years was fixed.

The appellant relied upon two grounds in support of his appeal against sentence. These were:

(1) the sentencing judge erred in fixing a non-parole period that was disproportionately high when compared with the total effective sentence; and

(2) the sentence on charge 2, the total effective sentence and the non-parole period were manifestly excessive and in breach of totality.

The background facts were as follows. The appellant, a Romanian national, arrived in this country on a three month tourist visa in September 2009. Shortly thereafter, he opened a bank account in a false name. His motive in doing so was to ‘skim’ or copy various customer bank cards. For that purpose, he used a device that included a card reader and a pinhole camera which was designed to appear to be part of an ATM. When a bank customer used the ATM, the device recorded the customer’s card and PIN details. Subsequently, the device was removed from the ATM, the data downloaded, and copied onto blank plastic cards.

Those cards, having had the data loaded onto them, were then used at various ATMs to access customer accounts and to draw money up to the daily withdrawal limit. The data and PIN numbers could also be sent overseas so that false customer cards could be created and used outside Australia.

The case against the appellant was that he conspired with unknown persons to use Commonwealth Bank and Bendigo Bank ATMs to ‘skim’ customer data with the…

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 Zamfirescu v The Queen

Details

AGLC: Zamfirescu v The Queen [2012] VSCA 157
Case: [2012] VSCA 157
Decision Date: 25 July 2012

CaseChat Overview and Summary

In the case of Zamfirescu v The Queen, the appellant was convicted in the County Court of Victoria for two counts of conspiracy to defraud, stemming from activities involving card skimming. The appellant entered a plea of guilty and was subsequently sentenced to a total effective term of imprisonment of five years, with a non-parole period of four years. The appellant appealed the severity of the sentence, specifically the length of the non-parole period, to the Court of Appeal of the Supreme Court of Victoria. The central issue before the Court was whether the non-parole period imposed was disproportionately high and whether the overall sentence was manifestly excessive. Additionally, the Court needed to consider the relevance of the appellant's prior convictions for similar offenses in determining the appropriate sentence.

The Court of Appeal found that the County Court had appropriately considered the appellant’s criminal history and the need for specific deterrence. The appellant had a history of similar offending, which the County Court correctly identified as a significant factor. The Court also noted that there is no single, correct ratio between the non-parole period and the head sentence, and that the specific circumstances of each case must be taken into account. The Court was satisfied that the County Court had exercised its discretion properly, and that the sentence imposed was not manifestly excessive. The Court held that the appeal did not raise a point of principle or any error in the sentencing process that warranted interference.

The Court of Appeal dismissed the appeal, affirming the sentence imposed by the County Court. The reasoning and outcome of the Court were based on the appropriate consideration of the appellant's criminal history, the necessity for specific deterrence, and the proportionality of the sentence in relation to the offenses committed. The final orders of the Court of Appeal upheld the sentence, including the non-parole period, as determined by the County Court.

Orders