Court of Appeal (Vic)|2012-07-25|Before: Weinberg JA

Zamfirescu v The Queen [2012] VSCA 157 (25 July 2012)

DPP v Zamfirescu (Unreported, County Court of Victoria, Judge Parsons, 26 September 2011)

1 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.

2 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.

3 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.

4 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.

5 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 intention of defrauding both of those banks.

6 Charge 1 concerned events that took place at 7:12am on 22 May 2010 when the appellant attached a skimming device to a Commonwealth Bank ATM at the Cranbourne Central Shopping Centre. That device captured card and PIN data from customers using the ATM until about 10am, when the camera component dislodged. Police were contacted and the device was seized.

7 Charge 2 concerned events between 13 June and 9 September 2010. Throughout that period, the appellant fixed a number of skimming devices to different ATMs.

8 The first occasion involved the attachment, on 17 and 18 June 2010, of a device to a Commonwealth Bank ATM in Sydney Road, Brunswick. As a result, the appellant and his confederates were able to withdraw an amount of slightly less than $50,000 from ATMs in New South Wales and Victoria, and about $13,500 from ATMs in the United Kingdom.

9 The second occasion involved the attachment, on 9 and 10 July 2010, of a device to a Commonwealth Bank ATM in Chapel Street, Windsor. As a result, the appellant and his associates were able to withdraw an amount slightly in excess of $100,000 from ATMs in Victoria and New South Wales, and just below $2,500 from ATMs in the United Kingdom and Malaysia.

10 The third occasion involved the attempted attachment of a skimming device to a Bendigo Bank ATM in Strathmore. The attempt was unsuccessful and the appellant removed the device without having obtained any data.

11 The fourth occasion involved the attachment, on 26 August 2010, of a device to a Bendigo Bank ATM in Chapel Street, Windsor. That device captured data until

about 9am, when it was detected. Police removed the device before the data could be retrieved.

12 The fifth occasion involved the attachment, on 3 September 2010, of a device to a Bendigo Bank ATM in Lygon Street, Carlton. That device succeeded in collecting data, but the bank became aware that its ATM had been compromised and cancelled all cards that had been used in that machine.

13 The sixth, and final, occasion involved the attachment, between 4 and 5 September 2010, of a device to a Bendigo Bank ATM in Sydney Road, Coburg. That device remained in place collecting data before it was removed by the appellant. However, the bank became aware that its ATM had been compromised, and all cards used in the machine at the relevant time were cancelled.

14 The appellant was arrested on 9 September 2010. During the course of a search of his hotel room, police located various articles suitable for use in ATM skimming, a laptop computer, four mobile phones, $3,800 in cash, clothing linking him to the ATM skimming events described above, and a large quantity of personal items believed to have been purchased from the proceeds of his fraudulent conduct.

15 The appellant made a 'no comment' record of interview.

16 In sentencing the appellant, the judge observed that there were a number of mitigating factors present in this case. First, he had pleaded guilty, having indicated an intention to do so at an early stage. Secondly, the plea was taken as some evidence of remorse. However, the weight to be accorded to that factor was reduced somewhat because the appellant had sought to rely, on his plea, upon an allegation of coercion, a version of events that the sentencing judge squarely rejected. Thirdly, the appellant was able to call in aid some matters relating to his personal background that were seen as ameliorating the gravity of his offending. These included a dysfunctional family upbringing during which his father had been violent towards him and his siblings. He had left home aged 17 and made his way to the United Kingdom where he fell in with other homeless people, and a group of Romanians, in East London. It seems that most of them were there as illegal immigrants, and a number of them were involved in various criminal activities.

17 The evidence was that the appellant lived in London between 1998 and 2010. He was involved in various frauds, and was imprisoned on several occasions.

18 There was evidence that the appellant was suffering from a depressive mood disorder, and what was said to be post-traumatic stress disorder. The sentencing judge accepted that evidence, but not the suggestion that the appellant had been acting under coercion. His Honour also found that the appellant would struggle to cope with a prison environment in this country, having regard to his social isolation and his lack of ties with anyone within the wider community. The judge concluded, in effect, that the appellant's prospects of rehabilitation were somewhat uncertain.

19 The appellant was sentenced on the basis that he had travelled to this country solely in order to commit the various offences outlined above. He had no other reason to come to Australia.

20 In such circumstances, general deterrence was said to be an important sentencing consideration, as it plainly was. So too was specific deterrence, given the fact that the appellant had been involved in credit card skimming in both 2006 and 2007 in the United Kingdom. We were informed on the hearing of the appeal that he was sentenced in January 2007 at the Croydon Crown Court to a total effective sentence of 20 months' imprisonment in relation to two separate sets of card skimming related offending, and that he in fact served 10 months of that sentence. He was sentenced in relation to other fraud and dishonesty related offences in November 2007. Counsel for the appellant indicated to us that the appellant had received a total effective sentence of 30 months on that occasion (of which he served approximately half). Although it was not made perfectly clear to us at the hearing precisely what conduct gave rise to the November sentence, we were told that it involved the misuse of credit cards.

21 There were also other convictions involving shoplifting, drug and vehicle offences, but these were of less relevance. The appellant's prior sentences of imprisonment for credit card skimming had not deterred him from committing precisely the same offences in this country. That made specific deterrence a matter of particular importance.

22 The appellant relied, in support of this appeal, upon the fact that the non-parole period of four years represented 80 per cent of the total effective sentence of five years' imprisonment. He acknowledged, in his written submissions, that there was no single correct ratio, but said that 80 per cent was well beyond the more orthodox ratio of about two-thirds of the total effective sentence.[1] He referred, in that regard, to R v Detenamo,[2] and submitted that it was significant that the sentencing judge in this case 'gave no reasons for taking this unusual course'.[3]

23 The appellant went on to contend that no such reasons would have been available. It is at this point that the submission runs into some difficulty. While there were mitigating factors present, all of which were specifically noted, and commented upon, by the sentencing judge, there were also powerful reasons for concluding that the appellant's criminality merited a significant term of imprisonment. His Honour was perfectly entitled to conclude that nothing less than four years' actual incarceration would have been sufficient for offending of this gravity.

24 The appellant suggested that the sentencing judge might have imposed a high non-parole period because he recognised that, at the expiration of that period, the appellant would immediately be deported. That would mean that he would not undergo any period of parole, a result which would favour the appellant over an offender who happened to reside in this country. The appellant contended that if his Honour had reasoned in that way, his approach would have been flawed since it would have offended the principle of equality before the law. It would also have run directly counter to authority.[4]

25 There is nothing in his Honour's sentencing remarks that suggests that he was influenced, in his choice of a non-parole period, by any such consideration. Rather, it seems that he, quite rightly, took the view that this offending was very serious, and that the appellant had shown, by his prior criminal history, that a lengthy term of imprisonment was the only possible disposition.

26 It must be remembered that the non-parole period is the 'minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.'[5] The Crown rightly characterised the appellant's criminality as 'very serious'. Both general and specific deterrence had to feature heavily in relation to the sentences imposed for these two offences. A non-parole period of four years was entirely reasonable, given the circumstances of this case. If anything, the total effective sentence of five years might be viewed as somewhat lenient.[6]

27 In my opinion, the Crown's submission regarding ground 1 should be accepted. No appealable error has been disclosed.

28 The same can be said in relation to ground 2. The appellant was part of an organised gang, operating internationally, that engaged in fraudulently obtaining money from accounts of unsuspecting bank customers. Although offences of this nature may be marginally less prevalent than they were several years ago (largely as a result of improvements in bank security and the effectiveness of police operations), they remain a serious problem, costing banks a great deal of money and impairing confidence in the integrity of the ATM system. Their continued prevalence explains why customers are repeatedly warned by banks to conceal their PIN numbers when withdrawing cash from ATM machines.

29 The appellant's actions involved a high degree of moral culpability. Such mitigating factors as were present were all taken into account and given appropriate weight. It was entirely proper to cumulate a portion of the sentence imposed on charge 1 upon the sentence imposed on charge 2. No component of the appellant's sentence can be seen as manifestly excessive.

31 Shortly prior to the hearing of this appeal the Court was informed that there had been an error in the record of orders made below relating to the presentence detention served by the appellant. Although the sentencing judge in his remarks had noted that the appellant had served 383 days of presentence detention and ordered that figure to be entered into the records of the Court, the County Court records in fact reflect only 323 days of presentence detention. It appears that there has been an administrative error. There is no dispute that 383 days was the correct figure at the time of sentence.

32 At the hearing of the appeal, counsel for both parties were agreed that this

Court had the power, pursuant to s 412 of the Criminal Procedure Act 2009, to make the necessary amendment to the record of orders. That section provides that 'for the purpose of correcting any defect or error in substance or in form, a court may amend any summons, warrant, plea, judgment or order'.

33 If, contrary to the parties' agreed position, s 412 is not apt to permit correction of the presentence detention declared in the Court below, the same result has variously been achieved by invoking s 104A(3) of the Sentencing Act 1991 (power to correct clerical mistakes),[7] or as a last resort, by adjusting the presentence declaration after having allowed the appeal and resentenced the offender.[8]

34 It is unnecessary in the present circumstances to say any more about the precise method by which the problem should be cured. It may be that more than one solution is available.

35 I would therefore order, pursuant to s 412 of the Criminal Procedure Act 2009, that the declaration made below be amended to state that the appellant had served 383 days of presentence detention as at the date of sentence.

[1] To say that such a ratio is 'orthodox' is to do no more than state that it is a relatively common sentencing disposition. It has no function as a principle relating to the proper duration of the non-parole period, still less as a 'starting point' from which to make additions or subtractions given the circumstances of the case: see Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 534 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (in the context of sentencing for federal offences); Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 131 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (in the context of New South Wales legislation specifying a 'standard' non-parole period).

[2] [2007] VSCA 160, [18]-[28] (Redlich JA).

[3] Applicant's Written Case dated 28 February 2012, [16].

[4] R v Binder [1990] VicRp 50; [1990] VR 563; Guden v The Queen (2010) 28 VR 288.

[5] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 (Barwick CJ, Menzies, Stephen and Mason JJ). See also Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 533 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[6] That is not to say, as counsel for the appellant implicitly suggested during the course of argument, that his Honour may have started with the non-parole period, and then fixed a head sentence, rather than the other way around. There is nothing in his Honour's sentencing remarks to support that contention.

[7] WCB v The Queen (2010) 29 VR 483, 500 (Warren CJ and Redlich JA).

[8] R v Chimirri [2003] VSCA 45, [3] (Winneke P).

Zamfirescu v The Queen [2012] VSCA 157

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Zamfirescu v The Queen [2012] VSCA 157 (25 July 2012)

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