Camara v The Queen [2015] VSCA 20

2 On 10 February 2014, Florinel Camara - whom I shall refer to as the appellant - pleaded guilty in the County Court to two charges of conspiracy to defraud.[1]

3 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. 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.

4 On 6 August 2014, a judge of this Court granted the appellant leave to appeal against sentence on the following ground:

1. The individual sentences imposed upon the [appellant] and Christian Georges (on Charges 1 and 2), the orders for cumulation made and non-parole periods fixed in both their cases:

(i) disclosed no or insufficient disparity; and

(ii) are such as to engender a justifiable sense of grievance.

Leave to appeal was refused on a second ground, expressed as follows:

1. The individual sentences imposed upon the [appellant] on Charges 1 and 2, the order for cumulation and the non-parole period fixed are manifestly excessive.

5 The appellant elected to renew his application for leave to appeal on the second ground.

6 For the reasons that follow, I would allow the appeal on the first ground and resentence the appellant. With respect to the second ground, I would refuse leave to appeal.

7 The appellant had three co-offenders, Antal Donka, Velentin Anania and Christian Georges. 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'. Georges and the appellant also pleaded guilty to a second charge of conspiracy to defraud divers financial institutions between 3 and 4 August 2013.

8 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 Georges was identical to that imposed on the appellant.[2]

9 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.

10 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.

11 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.

12 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 the appellant using the relevant ATMs in all of the transactions. Georges 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. The appellant was arrested on 12 March 2013. He made a 'no comment' interview and was later released on bail.

13 Charge 2 - which related to 3 and 4 August 2013 - occurred after the appellant was released on bail. The appellant and Georges 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.

14 When confronted by police the appellant and Georges fled. Georges 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 the appellant's and Georges' 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.

15 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 the appellant and Georges 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.

16 Somewhat optimistically, counsel for the appellant submitted to the sentencing judge that the appellant's age, role in the offending, circumstances and background made him suitable for a community correction order (CCO) coupled with an immediate term of imprisonment with a minimum of not more than 12 months.

17 Counsel submitted that the appellant was in Georges' thrall. He became involved in the offending at Georges' behest. By both age and management, Georges was the most senior figure in the conspiracy, the appellant being the youngest (and possibly most naïve) of the four conspirators. (The appellant was aged 23 years at the time of the offending and is now aged 25. By contrast, Georges was aged 52 years at the time of the offending.) The appellant was introduced to Georges - who became a father figure - by Donka and Anania, whom he had met by chance. Coincidentally, Georges was the godfather of the appellant's sister. Georges, it was submitted, supplied the appellant with alcohol, and introduced him to cocaine, to which he gradually became addicted. Georges then told him that he needed to become involved in the card skimming and cash trapping to pay for the supply of drugs and alcohol.

18 The appellant was, counsel told the judge, born in Romania. He was the eldest of three children to parents who also had several children from previous relationships. His mother was the victim of ongoing domestic violence by his father, which the appellant both witnessed and himself frequently suffered. Throughout his upbringing, there were many occasions where the appellant travelled back and forth between Romania and Australia, accompanied by various periods of separation between his parents as a result of his father's ongoing violence. Counsel submitted that the cumulative effect of the appellant's life experiences, and then his addiction to cocaine, made him vulnerable to being drawn into the offending.

19 Counsel submitted that there was no evidence of substantial enrichment, and the appellant's offending was not motivated by greed. The appellant was remanded in custody immediately following his arrest on the second charge, and, at the time of plea hearing, had served eight months in custody. He was the first to offer to plead guilty. Counsel relied on a report by a forensic psychiatrist, Dr Danny Sullivan, dated 31 March 2014, which indicated that the appellant would benefit from formal drug and alcohol counselling and monitoring. Despite the second offence having been committed whilst he was on bail, the appellant is not a repeat offender, and, so it was submitted, is unlikely to reoffend. His prospects for rehabilitation cannot be said to be low.

20 With respect to the offending, counsel argued that, although the offending is not victimless, the banking customers themselves suffered no loss. This fact, so it was contended, lessened the degree of aggravation attaching to the offending when measured by financial impact. No hard working families suffered any impact from the offending. It was conceded, however, that the offending undermines the system of banking relied upon by the community.

21 The prosecution conceded that the appellant's plea of guilty may be treated as being entered at the earliest possible opportunity notwithstanding the matter proceeded initially to the County Court by way of straight hand-up brief as a plea of not guilty. It was also conceded that further weight had to be attached to the plea by virtue of the complexity of the case, and the potential length of a trial. It was submitted that the prosecution was not able to establish precisely the extent of each conspirator's involvement in the overt acts carried out in pursuance of the conspiracy. The prosecution did not concede, however, that each conspirator was unaware of the extent of the conspiracy, although the extent of each conspirator's knowledge of the overt acts of the others could not be established.

22 The judge took into account the appellant's personal history and background (including the violence suffered at his father's hands) and that the appellant was a relatively youthful offender with no prior or subsequent criminal history.

23 Significantly, the judge rejected the submission that the appellant's role was more minor than that of Georges, the appellant's being a senior role in the joint criminal enterprise. The judge also rejected the contention that the appellant's offending occurred in the context of dependence on drugs and pressure from Georges related to his indebtedness. Moreover, as the judge noted, with respect to the second charge, the appellant had offended whilst on bail.

24 With respect to the ground claiming manifest excess, counsel in this Court conceded that the offending was serious; that it was 'sophisticated and sustained' over many months; and that the amounts involved were 'significant'. The appellant had, however, pleaded guilty early. Further, he had no criminal history and was sentenced as a youthful offender. Despite these factors, so it was submitted, he attracted an individual sentence on charge 1 which approximated one third the statutory maximum. Moreover, it was submitted that the total effective sentence and non-parole are plainly outside the range available to the judge in the sound exercise of her discretionary judgment.

25 As to parity, counsel argued that the appellant was sentenced as a 25 year old youthful offender without prior convictions, whereas Georges was sentenced as a 53 year old man with at least one significant drug-related prior conviction for which, in 1990, he was sentenced in the County Court to serve a total effective sentence of eight (8) years and six (6) months' imprisonment, upon which a non-parole period of seven (7) years and six (6) months was fixed. The considerations otherwise informing their respective sentences were, counsel conceded, 'comparable'. The differences in age, criminal history and personal circumstances, however, should have dictated that the appellant receive a sentence more lenient than that imposed on Georges, so that the appellant is entitled to harbour a justifiable sense of grievance.

26 I am not persuaded that the sentence passed on the appellant could - all other things being equal - properly be characterised as being manifestly excessive. Leave to appeal on ground 2 should be refused.

27 The offending on charge 1 was brazen and protracted. It involved at least 248 separate transactions and total of $184,920. Indeed, counsel accepted that the offending was sophisticated and sustained, and that the sum peculated was significant. Even having regard to the plea of guilty and other mitigating features, an individual sentence of five years' imprisonment, for a conspiracy involving enthusiastic participation over three months, cannot be described as manifestly excessive.

28 Moreover, the offending that is the basis of the second charge occurred whilst the appellant was on bail, which is to be regarded as an aggravating feature.[3] Although, compared to the first charge, the offending on the second charge related to a relatively short period, and to a more modest number of transactions and smaller amount of money - 20 illegal transactions resulting in $6,920 being skimmed from 14 separate accounts - the appellant's behaviour invited particular attention to specific deterrence and community protection, whilst general deterrence, just punishment and curial denunciation at the same time were all significant. In those circumstances, I am unable to see that the individual sentence of three years' imprisonment - upon which the judge ordered cumulation of but one year - may realistically be described as outside the available range.

29 That, however, is not the end of the matter. 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.

30 In the result, ground 1 has, in my opinion, been made out, and the appellant should be resentenced.

31 I would allow the appeal on the first ground, quash the sentences passed in the County Court and sentence the appellant to be imprisoned for four (4) years on charge 1 and for two (2) years and six (6) months on charge 2. I would order that one year of the sentence on charge 2 be served cumulatively with the sentence on charge 1, leading to a total effective sentence of five (5) years' imprisonment. I would fix a period of three years' imprisonment before which the appellant should not be considered eligible for release on parole. Otherwise I would confirm any other orders made by the County Court. Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for the plea of guilty, I would have sentenced the appellant to be imprisoned for seven (7) years, upon which I would have fixed a non-parole period of five (5) years' imprisonment.

32 For the reasons given by Priest JA I agree that the appeal should be allowed and the appellant be resentenced in the manner his Honour proposes.

[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.

[2] In her reasons for sentence, the judge announced that the sentence to be imposed on Georges 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.

[3] R v Gray [1977] VicRp 27; [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] VSCA 201; (1999) 108 A Crim R 392, 397-8 [21]-[26] (Chernov JA), 404-5 [57]-[63] (Charles JA); DPP v Galea and Mosut [2000] VSCA 87; (2000) 112 A Crim R 507; R v Pop [2000] WASCA 283; (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'.