DPP v Camara [2019] VCC 406

Mihai Camara, and an unknown male regularly accessing and leaving the apartment.

7. At about 6.40 am on 5 April 2017, you both attended at an NAB ATM in Glenferrie Road in Hawthorn. Mihai Camara, you installed a skimming device and a pinhole camera. The camera was attached to the fascia located at the side of the machine. The camera records you tapping the PIN pad.
8. You walked away from the ATM to your co-offender, Florinel Camara, and then the two of you walked away together. Various CCTV cameras in the area recorded you both walking around before returning to the ATM.

Mihai Camara, you crossed the road back to the ATM to check the installation before again returning to your co-offender. The two of you then walked out of sight.

9. Each of you accept that by the process described you were intending to obtain identification information at the Hawthorn ATM. You further admit the purpose was to obtain the data to be used in false cards which would be created from that identification information, together with the PINs to access funds held on behalf of customers by the financial institutions.
10. During the course of the day upon which the skimmer was installed, NAB customers reported their cards becoming stuck inside the machine and a technician attended. He found the skimming device and removed it. Police were called, at which time the pinhole camera was located.
11. Florinel Camara, you pleaded guilty on the basis of your complicity on this occasion only and you are to be sentenced on that basis.
12. On 4 August 2017, police executed a search warrant on the Docklands apartment. You, Florinel Camara, answered the door and you, Mihai Camara, were asleep on the couch in the lounge room. You were both arrested.
13. Police located a large number of items including the clothing worn by you, Florinel Camara, at the Hawthorn ATM. Further, on computers and mobile phones used by you, Mihai Camara, police located images of skimming devices, 147 hours of footage of two ATMs and card data and PINs obtained from that video footage. Bank examination confirmed that the information had been obtained from two skimmed ATMs at Forest Hill and Dingley Village. Analysis indicated that the devices had been installed twice at each location. You plead guilty on the basis that these other skimming incidents are overt acts in furtherance of the conspiracy to which you were a party.
14. Further, Mihai Camara, on your phone there were images including images of skimming devices, you 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 of 2017 showing how to install and remove a skimming device with a metal sleeve. On a second laptop computer used by you, Mihai Camara, there was an internet history of searches for skimming devices and records of skimming devices on websites and of a website where skimming device software can be downloaded.
15. There were also text files with time references followed by PIN numbers which in my view reveals 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 fridge. Fingerprints and palm prints were located and you were identified as the source.
16. After being arrested you, Mihai Camara, indicated that you required the assistance of an interpreter. After lengthy attempts a Romanian interpreter was not able to be obtained. You were thus unable to be interviewed.
17. You, Florinel Camara, exercised your rights, indicated that you had done nothing wrong and had nothing to say. Florinel Camara, at the time of the commission of this offence you were on parole for other offending of a similar nature. Your parole was revoked as a result of failure to abide by conditions, that is you were residing at the apartment to which I have already referred rather than the address specified in your parole order. You were thus in breach of that parole order. You were convicted and fined $1000.
18. You were returned to custody and you have been serving out that sentence which will expire on 2 April 2019. Pursuant to s.16(3)(b) of the Sentencing Act, every term of imprisonment imposed on a person for an offence committed while released under a parole order must, unless otherwise directed by the court, because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which that person may be required to serve in custody on cancellation of the parole order.
19. As regards to the procedural history of this matter, it proceeded by way of contested committal and you both entered pleas of not guilty in April of 2018. The matter was listed for trial in this court on 25 March this year. Mihai Camara, you made an offer to plead guilty on 22 March. That offer was accepted and you were arraigned on 25 March.
20. Florinel Camara, you made an offer to plead on 25 March. That offer was accepted and you ultimately entered a plea on 27 March to a charge substantially different and less serious than the trial indictment.
21. Mihai Camara, you have no prior convictions or appearances and you fall to be sentenced on the basis that you are apart from this matter a man of good character.
22. Florinel Camara, on 10 February 2014 at this court, you pleaded guilty to two charges of conspiracy to defraud. You were sentenced to be imprisoned for a total effective sentence of six years and ordered to serve four years prior to becoming eligible for parole. That sentence was reduced upon appeal to five years with a minimum of three. That offending involved you defrauding financial institutions between December 2012 and March of 2013 by physically manipulating ATMs to enable unauthorised withdrawals of cash. The second charge related to a similar circumstance between 3 and 4 August 2013. The activity you engaged in on that occasion is described as "cash trapping" and it involves the insertion of a device called a fork into the dispenser to trap the cash and cause the ATM to record a bill dispense error releasing the cash but reimbursing the cardholder's account. Your prior offending involved you and others obtaining over $180,000 from financial institutions. As I have already noted, you were on parole in relation to that sentence at the time of the commission of the offence which is the subject of these proceedings.
23. Mihai Camara, the material located during the search of your premises and electronic devices indicates the planned and researched nature of this offending. Whilst there may have been others in the conspiracy, the evidence reveals your fulsome participation. You obtained not only the device, but software and cables to facilitate the aims of the conspiracy.
24. As discussed with counsel during the plea, this kind of offending is serious. It has capacity to undermine confidence in one of our core institutions. That is, the banking system. At end result, it causes serious disruption in people's lives and of course, financial loses. General deterrence is necessarily given sufficient weight and the message must be clear that condign punishment will result in appropriate circumstances.
25. Florinel Camara, the offence to which you have pleaded is objectively less serious as is demonstrated by its three year maximum. This type of offending also has the capacity to undermine community confidence in our banking system. Your participation was limited to a single date and a single event, which is of course relevant to offence seriousness. There are in your case, however, other matters including specific deterrence, which must be given weight and I will turn to those matters in due course.
26. Mihai Condurat Camara, you are now aged 38, having been born on

15 November 1980. You are of Romanian heritage. You attended a village school before moving to Bucharest, aged 22, at about the time your father passed away.

27. You married in 2008 the sister of your co-offender and moved to Australia in 2009, at which time you tragically lost your first child. You returned to Romania after four months to, amongst other things, assist your mother.
28. Your wife has both Australian and Romanian residency. She returned to Romania later the same year. You spent most of your working life in Romania selling cars and in domestic construction.
29. You have a son, Patrick, now aged ten. In 2014, Patrick and his mother returned to Australia for the purpose of him attending school. In 2015, you joined them for six months before returning to Romania and your business interests, which also, by that stage, included a wholesale clothing business. You effectively separated, but you travelled back regularly to visit your wife and son.
30. In 2017, you arrived on a tourist visa as you were no longer eligible for spousal entry as a result of your separation. Upon your eventual release from custody, it is your intention to move with your now ex-partner and son to reside in Romania full time as a family despite the breakdown of the marital relationship.
31. Since your arrest, you have been unable to work as you have been on a justice visa. You have been reliant on family and friends. You still own 40 per cent of your clothing business in Romania, but you have not taken an active role in recent times.
32. Since being released on bail, there are no allegations of further offending. Given your visa status, it is likely you will be deported upon your release from prison. You of course had no legitimate expectation that you could stay and you will be deported to your family and country of origin.
33. Your counsel quite properly conceded that the only disposition open is an immediately servable term of imprisonment. The Crown concur.
34. Florinel Camara, you are now aged 30 having been born on 23 March 1989. You were one of six siblings. You describe your father as a successful businessman. Your mother came to Australia in 1983 and met your father when he arrived in 1987. They were both of Romanian heritage and returned to Romania in 1988. It appears that there were various separations within the family as a result of issues, including domestic violence.
35. You are a dual citizen of both Australia and Romania. You attended high school in Romania and commenced a degree in geology at the University of Bucharest. You dropped out in your second year to work in your father's construction company.
36. In 2012, your father sent you to Australia for the purposes of selling property he had here in Altona Meadows. While you were here, you report being introduced to a man of Romanian heritage who had been a professional soccer player. He had been injured in a car accident and subsequently, upon your report, became involved in drug trafficking. You were introduced to cocaine and you described yourself as becoming addicted. This man, whose name was George, you say persuaded you to become involved in the card skimming, which was the subject of your prior conviction.
37. I have already noted the sentence of Her Honour Judge Gaynor. That sentence was appealed as I have noted and reduced to a total effective sentence of five years with a non-parole period of three. You were released on parole in relation to that matter in December of 2016. You were remanded in custody in relation to these matters on 4 August 2017 and your parole was cancelled on 7 August 2017. Your sentence expires on 2 April.
38. The charge to which you have pleaded is a conspiracy to possess identification information solely on 5 April 2017, which is put on the basis of you acting as a look out while your co-offender installed the skimming device.
39. I have been told that it is your intention to return to Romania with your girlfriend and work in the family business as soon as that is possible.
40. Totality is relevant in your case. You are still a relatively young man. It is to be hoped that your incarceration will have had deterrent effect in circumstances where you only have one prior matter. This of course must be seen in light of the requirement that you serve any sentence imposed on this matter cumulatively with the period you were serving upon your parole having been revoked, as your counsel conceded that there are no exceptional circumstances and that the provisions to which I have already referred have application. Parliament's intention is clear.
41. Your counsel submitted that a CCO or a combined CCO with a term of imprisonment are within range. The Crown submit that while the only available disposition must involve an element of immediate custody, they do not submit that a combined sentence is outside the range.
42. In each case, I take into account your plea of guilty. Whilst not entered at an early stage in proceedings, you are entitled to the utilitarian benefits of such plea. I have acted on the basis that your plea can properly be used of at least some evidence of remorse.
43. In your case, Florinel Camara, you pleaded guilty to a substantially less serious charge than the trial indictment and that is relative of course to the time at which your plea was entered, as it was not suggested that this was offered prior. I am sentencing you on that basis.
44. Each of your counsel made submissions in relation to the fact there was no money obtained. That is, no loss to financial institutions. Your criminality of course is not reliant upon any money actually being obtained by you.
45. This type of offending in both cases is, by its nature, serious. As I have noted and I repeat, it undermines confidence in our banking system and has potential to seriously impact the lives of members of our community in circumstances where their funds are fraudulently accessed. This type of offending in which each of you has engaged plays a role in further offending coming to fruition.
46. As well as matters personal to each of you to which I have referred, I take into account relevant sentencing considerations. General deterrence must be given significant weight in each case because of the impact upon the community at large and the potential impact upon the community at large. I must seek to deter not only you, but others who would engage in like conduct.
47. In your case, Mihai Camara, your prospects of rehabilitation are properly assessed as good given your lack of relevant history.
48. Florinel Camara, in your case, there is reason for some reservation given your offending on parole, but you are still a relatively young man and rehabilitation must be pursued. Specific deterrence must also be given weight, most particularly in relation to you, Florinel Camara given your history and the fact that you were on parole.
49. Mihai Camara, specific deterrence can be given less weight in light of your history. In each case, your sentence must manifest the community's denunciation of your conduct and impose just punishment. Rehabilitation, as I have noted should, in my view, continue to be pursued as it is the community's best protection from incidents of this type into the future.
50. Would you both stand please?
51. Mihai Camara, you are convicted and sentenced to be imprisoned for four years. I direct that you serve two years and six months before becoming eligible for parole. I direct it be noted in the records of the court that were it not for your plea of guilty, I would have sentenced you to five years and six months with a minimum of four years.
52. Florinel Camara, I have determined there is no disposition open other than an immediately servable term of imprisonment. You are thus convicted and sentenced to be imprisoned for eight months effective today. I note that this sentence will be served cumulatively as a result of s.16(3)(b) of the Sentencing Act. I direct that four days be reckoned as served. I direct it be noted in the records of the court that were it not for your plea of guilty, I would have sentenced you to 12 months' imprisonment.
53. In each case, I make the disposal order in the terms of the draft which you have consented.
54. Further, I make an order in each case pursuant to s.464ZF of the Crimes Act for the taking of an intimate sample for placement on the database. I inform each of you that police may use reasonable force to enable that procedure to be conducted.
55. Thank you. Have a seat for a moment. Counsel, is there anything arising?
56. COUNSEL: No, Your Honour.
57. MR ALBERT: Four days pre-sentence detention?
58. HER HONOUR: It has been announced. Thank you. Remove the prisoners please. I thank counsel for their assistance. Stand down.