Camara v The Queen [2019] VSCA 207

2 The applicant has sought leave to appeal on the sole ground that the sentence and non-parole period are manifestly excessive. He contends that two previous cases, Smith v The Queen[3] and Zamfirescu v The Queen,[4] help identify the sentencing range that was available to the judge and that the sentence imposed was wholly outside that range.

3 The Crown contends that the ground of manifest excess cannot be established simply by comparing the sentences imposed in Smith and Zamfirescu. It relies on the further case of Schneider v The Queen.[5]

4 For the reasons that follow, the application for leave to appeal will be refused.

5 The offending involved ATM card skimming. The judge described the offending as follows:

The process involves the installation of a skimming device and a camera at an ATM for the purposes of capture of customer card details and PIN details while customers are using their cards. The skimmed data is intended to be downloaded to a computer and matched with customer PIN data obtained by the video camera.

Typically once that process is complete, the details are copied on to what are described as blank or cloned cards. That card is then used together with the PIN, which has been obtained to access customer's accounts both at ATMs and via purchase at electronic terminals.[6]

6 The charge on the indictment was in the following terms:

The Director of Public Prosecutions charges that [the applicant] at Melbourne and divers other places in Victoria between the 5th day of April 2017 and the 4th day of August 2017 conspired together with FLORINEL CAMARA and other unknown persons with intent to defraud divers financial institutions by installing data skimming devices in automated teller machines to obtain the personal identification information of bank customers.

7 The circumstances of the offending may be summarised as follows.

8 At about 6.40 am on 5 April 2017, the applicant and his co-offender, Florinel Camara (who is the applicant's brother-in-law) attended at a National Australia Bank ('NAB') ATM on Glenferrie Road, Hawthorn. The applicant installed a skimming device and a pinhole camera. The applicant walked away from the ATM to his co-offender, who was waiting across the road, and the two of them walked away together. CCTV cameras in the area recorded them walking around before returning to the ATM. The applicant crossed the road back to the ATM to check the installation before again returning to his co-offender. The two of them then walked out of sight.

9 The offenders accepted that they intended to obtain identification information at the Hawthorn ATM for the purpose of using it in false cards which would be created from that information, together with the PINs, to access customer funds.

10 During the course of the day upon which the skimming device was installed, NAB customers reported that their cards had become stuck inside the ATM and a technician attended. He found the skimming device and removed it. Police were called, at which time the pinhole camera was located.

11 On 4 August 2017, police executed a search warrant on a Docklands apartment at which the offenders resided and arrested them.

12 Police located on computers and mobile phones used by the applicant images of skimming devices, 147 hours of video footage from two ATMs and card data and PINs obtained from that video footage. Examination by NAB confirmed that the information had been obtained from an ATM in Dingley between 18-21 July 2017 and an ATM in Forest Hill between 20-21 July 2017. Analysis indicated that the devices had been installed twice at each location. The applicant pleaded guilty on the basis that these other skimming incidents were overt acts in furtherance of the conspiracy to which he was a party.

13 On the applicant's phone there were images of: skimming devices; the applicant holding a skimming device; a metal sleeve used to install skimming devices; and an electrical diagram relevant to skimming devices. There was also a picture of a skimming device being charged at a power point and a video created in July 2017 showing how to install and remove a skimming device with a metal sleeve. On a laptop computer used by the applicant, there was an internet history of searches for skimming devices and records of skimming devices on websites and of a website from which skimming device software could be downloaded.

14 On the laptop there were also text files with time references followed by PIN numbers which the judge found revealed efforts to match PIN numbers to cards. Further, police located a USB with skimming software and other relevant material. A panel from an ATM was found in a cupboard above the refrigerator. Fingerprints and palm prints were located and the applicant was identified as the source.

15 Police also found three modified cables used with skimming devices to charge batteries and extract data, a modified USB cable for use with skimming devices to extract data and a charger with a modified cable used with skimming devices to charge batteries.

16 The co-offender pleaded guilty to the lesser charge of conspiracy to possess identification information and was sentenced to 8 months' imprisonment. The applicant has expressly disavowed reliance on parity issues as a basis for impugning his sentence.

17 The applicant was 38 years old at the time of sentencing. He is of Romanian heritage. He spent most of his working life in Romania selling cars and in domestic construction.

18 The applicant married his co-offender's sister in 2008 and moved to Australia in 2009. He and his wife returned to Romania in the same year. Their son, Patrick, was born that year. The applicant's wife and Patrick returned to Australia in 2014. The applicant joined them in 2015 for six months. He then returned to Romania as he was unable to work successfully in Australia and in order to care for his mother. At this time he effectively separated from his wife but travelled back to Australia regularly to visit her and their son.

19 On 17 February 2017, the applicant arrived in Australia on a tourist visa as he was no longer eligible for spousal entry due to his separation from his wife. The visa expired on 14 August 2017.

20 The applicant does not have a criminal history. It is likely that he will be deported after serving his sentence.

21 The judge described the applicant's offending as 'planned and researched' and stated that his participation in the conspiracy was 'fulsome'.[7] She said that his role in obtaining the skimming device, software and cables facilitated the aims of the conspiracy.[8]

22 The judge found that although the offending did not proceed past the capture of information, it was serious because ATM card skimming undermines confidence in the banking system and has the potential to seriously impact the lives of members of the community whose funds are fraudulently accessed. She stated that general deterrence had to be given significant weight.[9]

23 The judge said that, although the applicant's guilty plea was not entered at an early stage, he was entitled to the utilitarian benefits of such a plea and it was some evidence of remorse.

24 The judge concluded that, given the applicant's lack of criminal history, his prospects of rehabilitation were good and that less weight could be given to specific deterrence.

The cases of Smith, Zamfirescu and Schneider

25 As the parties relied on the cases of Smith, Zamfirescu and Schneider, I will briefly summarise them and the principles relating to the use that can be made of so-called comparable cases before considering the parties' submissions.

26 Smith involved a guilty plea to a single charge of conspiracy to defraud. Smith's offending involved two aspects. The first aspect was that he and his co-offender used cards with stolen data to undertake over 130 separate transactions during four visits to Melbourne from their homes in Sydney in the period from 4 August 2015 until 8 September 2015. They withdrew a total of $26,584 and attempted to withdraw a further $22,094. The second aspect involved Smith endeavouring to persuade two taxi drivers to participate in the fraudulent scheme by using modified EFTPOS terminals. When he was arrested, Smith was in possession of 16 cards and 124 further cards were found in a storage facility of which he had knowledge. Smith had previously been found guilty of offences of dishonesty in New South Wales. He suffered from a chronic lung disease.

27 Smith's appeal against a sentence of 3 years' imprisonment with a non-parole period of 2 years was dismissed by this Court. The Court described the offending as a 'highly organised and sophisticated fraudulent scheme' which 'fully warranted the sentence that was imposed'.[10]

28 Zamfirescu involved guilty pleas to two charges of conspiracy to defraud. The first charge involved a single incident in which Zamfirescu attached a skimming device to an ATM at 7:12 am on 22 May 2010. That device captured card and PIN data from customers using the ATM until 10:00 am, when the camera was dislodged and police seized the device. The second charge involved six occasions between 17 June 2010 and 5 September 2010 in which Zamfirescu fixed a number of skimming devices to different ATMs. The total amount that the applicant and his co-conspirators were able to withdraw exceeded $160,000.

29 Zamfirescu was sentenced to 4 years and 6 months' imprisonment for the second charge and 12 months' imprisonment on the first charge, 6 months of which was made cumulative on the sentence for the second charge, making a total effective sentence of 5 years' imprisonment. A non-parole period of 4 years was fixed. Zamfirescu was sentenced on the basis that he had travelled to Australia solely in order to commit the offences. He had committed similar offences in the United Kingdom for which custodial sentences were imposed.

30 This Court rejected Zamfirescu's contention that the sentence on charge 2, the total effective sentence and the non-parole period were manifestly excessive. The Court said that Zamfirescu 'was part of an organised gang, operating internationally, that engaged in fraudulently obtaining money from accounts of unsuspecting bank customers'.[11]

31 Schneider involved a guilty plea to a charge of conspiracy to cheat and defraud, the maximum penalty for which is the same as for the offence of conspiracy to defraud, namely, 15 years' imprisonment. The offending involved ATM card skimming. In the period between 20 March 2014 and 18 May 2014, Schneider and a co-offender attached card skimming devices to ATMs and withdrew cash using information obtained from skimming devices attached either by themselves or by others. During that period, they and other co-offenders withdrew a total of $249,404.80 and attempted to withdraw $245,857.40. In the period between 18 May 2014 and 25 June 2014, Schneider and another co-offender committed similar offending. They and other co-offenders withdrew a total of $82,382.50 and attempted to withdraw $22,508. Schneider suffered from an anxiety disorder and schizophrenia, and faced the risk of deportation. He had numerous prior offences for dishonesty. He was sentenced to 5 years and 6 months' imprisonment with a non-parole period of 3 years and 6 months.

32 This Court rejected Schneider's contention that his sentence was manifestly excessive. The Court described Schneider's offending as 'serious and persistent'.[12]

Principles relating to use of comparable cases

33 It is well established that so-called comparable cases do not set a mandatory benchmark or binding precedent as to the sentence that is reasonably open in a subsequent case.[13] That is because current sentencing practices is one of a number of sentencing considerations but is not a controlling consideration.[14]

34 In Director of Public Prosecutions v Dalgliesh,[15] the High Court stated that a sentencing judge has a duty to impose a sentence that is just in all the circumstances of the offender's case and no sentence in a previous case can prevent the judge from discharging that duty.[16] A sentence is not manifestly excessive simply because it is similar to a sentence in another case that involved more serious offending or, conversely, higher than a sentence imposed in another case that involved similar offending.[17] However, that is not to say that current sentencing practices cannot assist in an assessment of whether a sentence in a particular case is manifestly excessive and thus not just and appropriate.[18]

35 The applicant submitted that notwithstanding that the offending in Smith was 'objectively much more grave than [his] offending', his sentence was more severe than the sentence imposed on Smith. He contended that even if one has regard to the different circumstances in Smith - including that Smith suffered from a chronic lung disease and had a criminal history - the sentence in that case 'tends to support the conclusion that the applicant's sentence was wholly outside the applicable sentencing range'.

36 In relation to Zamfirescu, the applicant submitted that the offending that was the subject of charge 1 in that case - for which Zamfirescu was sentenced to 12 months' imprisonment - was the 'most comparable' to his offending. According to the applicant, the offending that was the subject of charge 2 in Zamfirescu was less comparable. This was said to be because that offending not only resulted in financial gain but involved a much greater degree of culpability relative to the applicant and was committed in circumstances where Zamfirescu had previously been imprisoned for similar offending.

37 The applicant contended that, in combination, Smith and Zamfirescu helped to identify the sentencing range that was relevant to his offending. He argued that, having regard to the fact that he did not make any financial gain, his good character, good prospects of rehabilitation, guilty plea and remorse, the sentence imposed on him was wholly outside the available range.

38 The Crown submitted that no aspect of the sentence imposed on the applicant was manifestly excessive. According to the Crown, there were a number of features in the present case which meant that the sentence was well within the available range. Those features were said to include the following:

(a) The plea was late, as the matter resolved on the eve of the trial after a contested committal.

(b) The applicant had no notable physical or mental health issues.

(c) The only explanation for the offending that was open was greed.

(d) The offending period spanned four months, which was more extensive than the period of offending in Smith and Schneider.

(e) The offending involved not only the installation of skimming devices to capture information but also obtaining the software and cabling to facilitate the aims of the conspiracy.

39 In my opinion, it is not reasonably arguable that the sentence imposed on the applicant is manifestly excessive.

40 The applicant's offending was not confined to the events of 5 April 2017. In accordance with his plea, he admitted that he engaged in the offending for the period between 5 April 2017 and 4 August 2017, as set out in the indictment. The items found in the Docklands apartment show that the applicant or his co-conspirators had been engaged in extensive ATM card skimming activities during that period. The skimming of the ATMs in Dingley and Forest Hill in July 2017 were overt acts in furtherance of the conspiracy. I reject the applicant's contention that his offending is more comparable to the offending the subject of charge 1 in Zamfirescu.

41 The judge was correct to describe the applicant's offending as 'planned and researched'. This is borne out by the extensive range of software and equipment that was located at the Docklands apartment. I agree with the judge that the offending is serious. It has the potential to undermine confidence in our banking system and to inflict financial hardship upon innocent members of the community whose funds are stolen. General deterrence, denunciation and protection of the community from financial harm are paramount sentencing considerations for this type of offending.

42 I accept that, unlike the offending in Smith, Zamfirescu and Schneider there was no evidence that the applicant benefited financially from his offending and that he fell to be sentenced on the basis that his offending did not proceed beyond information capture. However, it can be readily inferred that the applicant's offending was motivated by financial reward, even if it was in the form of future payment for the provision of the stolen data to others, as claimed by him, rather than in the form of a share of stolen funds. In any event, financial gain is not an element of the offence.

43 The sentence of 4 years' imprisonment with a non-parole period of 2 years and 6 months was just and appropriate having regard to the gravity of the applicant's offending and the mitigating circumstances in his favour. That sentence does not cease to be just and appropriate simply because different sentences were imposed in the cases of Smith and Zamfirescu. Those cases do not define the boundaries of what is an appropriate sentence in the applicant's case. When regard is had to Smith, Zamfirescu, Schneider and other cases such as Georges v The Queen,[19] I am not satisfied that the sentence imposed on the applicant is inconsistent with current sentencing practices.

44 Having regard to the above considerations and the applicable maximum penalty of 15 years' imprisonment, I am not satisfied that a sentence of 4 years' imprisonment or the non-parole period of 2 years and 6 months for the serious offending in which the applicant engaged are manifestly excessive.

45 Accordingly, the application for leave to appeal will be refused.

[1] DPP v Camara [2019] VCC 406 ('Sentencing remarks').

[2] Crimes Act 1958 s 320.

[3] [2018] VSCA 208 ('Smith').

[4] [2012] VSCA 157 ('Zamfirescu').

[5] [2016] VSCA 76 ('Schneider').

[10] Smith [2018] VSCA 208 [39].

[11] Zamfirescu [2012] VSCA 157 [28].

[12] Schneider [2016] VSCA 76 [43].

[13] See, eg, Lee v The Queen [2018] VSCA 63 [89]; Blango v The Queen [2018] VSCA 210 [61] ('Blango'); Djordjic v The Queen [2018] VSCA 227 [74]; Sutic v The Queen [2018] VSCA 246 [97].

[14] Director of Public Prosecutions v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 434 [9], 450 [68] ('Dalgliesh').

[15] [2017] HCA 41; (2017) 262 CLR 428.

[16] Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 434 [5], 449 [65], 452 [79], 454-5 [83]-[85].

[17] Hamid v The Queen [2019] VSCA 5 [56].

[18] Blango [2018] VSCA 210 [61].

[19] [2015] VSCA 82. See also Camara v The Queen [2015] VSCA 20 which relates to prior offending by the applicant's co-offender.