IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	 Revised
Not Restricted
 Suitable for Publication	

CR-21-00058

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
FLORINEL CAMARA		

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JUDGE:	HIS HONOUR JUDGE HOLDING	
WHERE HELD:	Melbourne	
DATE OF HEARING:	08 November 2022. 	
DATE OF SENTENCE:	01 December 2022. 	
CASE MAY BE CITED AS:	DPP v Camara	
MEDIUM NEUTRAL CITATION:	[2022] VCC 2135		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW – Sentence. 
Catchwords: 	Plea of guilty – one charge – conspiracy to defraud – common law – criminal record – Romania – co-accused – parity – totality – drug addiction – ATM skimming – defraud – character reference – deportation.
Legislation Cited:	Migration Act 1958 (Cth) – Sentencing act 1991 (Vic). 
Cases Cited:	Camara v R [2015] VSCA 20 - DPP v Rusu [2021] VCC 1623.
Sentence:	Total effective sentence of 3 years imprisonment with a non-parole period of 2 years and 4 months.  

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Stephen Devlin  	Office of Public Prosecutions	
			
For the Accused	Alexander Patton	Theo Magazis & Associates 	

HIS HONOUR:

1	Florinel Camara, you have pleaded guilty on indictment C2013757B to one charge of conspiring with CATALIN RUSU to defraud diverse financial institutions contrary to common law.  The maximum penalty for that offence is 15 years' imprisonment.
2	Your plea hearing has been brought before me as I was the judge that sentenced your co-offender, CATALIN RUSU, last year in respect of the same offence.  I sentenced Mr Rusu to 21 months' imprisonment for that offence with a period to serve before eligibility for parole of 15 months.
3	It was agreed between the prosecution and defence that although you and 
Mr Rusu played different roles at different times during the conspiracy, neither of you could be regarded as more culpable than the other in terms of what each of you did in furtherance of the conspiracy.
4	It was also not in dispute between the parties that because your criminal history was more extensive than Mr Rusu's and, in particular, involved prior convictions for similar offending, the assessment of your moral culpability for this conspiracy was necessarily greater than that of Mr Rusu's and on that basis warranted a longer sentence of imprisonment being imposed upon you than upon Mr Rusu.
5	The prosecution summary dated 31 October 2022 was tendered during the plea hearing and should be read in conjunction with these reasons.
Circumstances of the offending 
6	Your offending relates to the activity commonly known as ‘Automatised Teller Machine (ATM) Skimming’.  This conspiracy existed between 21 April 2020 and 
15 July 2020 and involved you and Mr Rusu making a criminal agreement to engage in this unlawful activity.
7	I will now briefly describe the method of ATM skimming.
8	ATM skimming involves installing a pinhole camera and a deep insert skimming device to ATM machines.  By doing this, participants are able to steal customer data and Personal Identification Numbers (PIN) whilst banking customers conduct genuine transactions at the ATM.
9	The deep insert device records customer card details while the camera captures and stores the customer's PIN and provides a timestamp whilst transactions are taking place on the ATM.
10	The data from the camera is stored onto a computer and matched with the data obtained by the skimming device.  Customer information is then transferred onto blank clone magstripe cards (that is, blank bank cards) which can then be used by participants to conduct account balance enquiries and make fraudulent withdrawals and purchases.
11	The prosecution opening is extremely detailed and runs to some 24 pages in terms of describing the circumstances of your offending.  For the purposes of these reasons, it is not necessary for me to account such a detailed description.  Instead, I will describe the offending in more general terms.
12	It is apparent that over the period of the conspiracy, you and Mr Rusu were each in each other's company and resided at various Airbnb style accommodation and were in the habit of using false identity documents.  As part of the conspiracy, skimming devices were installed and removed from bank ATM machines in various locations throughout suburban Melbourne.  Significant amounts of cash were obtained and further failed attempts to obtain cash were made.
13	Cameras affixed to the skimmed ATM machines as well as other CCTV cameras located at various points captured footage of both you and Mr Russu involved in skimming activity or in the vicinity of the machines around the time the skimming occurred.  Sometimes the footage from these cameras captured distinctive clothing or items in your possession or the possession of Mr Rusu that were later seized in the execution of search warrants.
14	The prosecution opening contains a number of tables detailing the data and locations where both unsuccessful attempts were made to withdraw amounts of money as well as when these attempts were successful and the amounts obtained from those successful occasions.
15	Your offending occurred in such suburbs as the Melbourne Central Business Districts, Springvale, Glen Waverley, Clayton, Keysborough, Chadstone, Cranbourne, and other suburbs. 
16	This was persistent offending.  As an example, one of the tables in the prosecution opening indicates that on 19 June 2020, there were approximately 15 attempts made to fraudulently use ATM machines across a variety of suburbs.
17	You and Mr Rusu successfully skimmed the data from a hundred and sixty-four cards during the period of your offending.  The total amount of money obtained from this activity was in excess of $35,000 in approved but fraudulent transactions.  Records indicate that further attempts were made to gain by this method in excess of $38,000.  Fortunately, these attempts failed.
18	The investigation ultimately led to your arrest on 24 May 2020.  You were arrested at an address that was linked to Mr Rusu and his passport was found there.  You were also in possession of a mobile phone that contains images of Bank of Queensland stickers that were used to cover pinhole cameras.  Such a method being part of the skimming offending.
19	There were also photos linking bankcards that were subsequently located in a tin that contained skimming devices found in an Audi motor vehicle linked to you.  You were also found in possession of a number of mobile phones.  Analysis of the phones revealed the connection to Mr Rusu and bookings for various places of accommodation used by Mr Rusu.
20	It is apparent from the prosecution opening that after you were remanded in custody, Mr Rusu continued with some aspects of the criminal behaviour.  He was subsequently arrested and found to be in possession of significant amounts of cash and there was some evidence that he had attempted to obtain further skimming equipment that was sent to Australia from overseas.
Objective gravity of the offending
21	As explained in the sentencing reasons for Mr Rusu, the courts must denounce this type of sophisticated attack upon the proper functioning and security of ATM machines.  Such machines are in everyday use by the community and it is important that their proper functioning not be compromised by such organised criminal activity.
22	Such criminality undermines the confidence in the banking system and impacts the members of the community whose funds and personal data are fraudulently obtained.
23	General deterrence and community protection are of particular importance in sentencing for this type of conduct. 
Personal circumstances 
24	You are 33 years of age and were approximate 31 years of age at the time of the offending.  You were born and raised in Romania but hold Australian citizenship.  Your parents are Romanian and met here in Australia where they became citizens but eventually moved back to Romania.  Your parents continued to reside in Romania along with most members of your immediate and extended family.  However, your three sisters reside in Australia.
25	You completed your secondary education in Romania before embarking on tertiary studies.  You discontinued further study in order to work in the family business.  You travelled to Australia at your father's direction in 2012 when you were around 22 or 23 to attend some businesses for your father, including the sale of property.
26	Soon after your arrival in Australia, you were introduced to cocaine by a friend and rapidly became a habitual user.  You are also a heavy drinker.
27	Since your arrive in Australia, you have not held any type of employment.  You are currently single and have fathered no children.  You have a criminal history that is of particular relevance because you have been sentenced in the past for similar criminal behaviour.
28	On 11 April 2014, you were sentenced in the County Court in respect of 
two charges of conspiracy to defraud.  You received a total effective sentence of six years imprisonment with a non-parole period of four years.  That sentence was reduced on appeal to a total effective sentence of five years with a non-parole period of three years.
29	The two charges involved the same activity as this offending.  On the first charge, $184,920 was obtained.  After being charged with the conduct that constituted the first count on the indictment you were released on bail.  While on bail, you committed the conduct that constituted the second count, namely, further conduct of skimming from ATM machines.
30	When released on parole in respect of this sentence, you again reoffended in 
April 2017.  On that occasion you were complicit in the offending of a person named Mihai Camara who was engaged in skimming ATM machines.  You were ultimately charged with conspiracy to commit an indictable offence and on 
29 March 2019, received a sentence in this court of eight months gaol for that offence.
31	Written submissions made by your counsel state, when you were released from custody in 2019, you experienced difficulty obtaining employment, relapsed into drug abuse.  The submissions state you began,
(a)	'resuming regular cocaine and occasional methylamphetamine use, and following a decline in mental health, following his now former partner's miscarriage, commenced heroin use.' 
(b)	It is submitted that without any means to support yourself you returned to offending to support your drug addiction.
Defence Submissions 
32	Mr Patton of counsel who appeared on your behalf sensibly conceded that a gaol sentence with a non-parole period was the only appropriate sentence.  He submitted your plea of guilty although not at the earliest point in time as obviated the need for what would have been a lengthy and complex trial.
33	You have been in custody awaiting the outcome of these proceedings for 871 days as of the day of your plea hearing. In that time you received a sentence for unrelated matters of 87 days which needs to be taken into account in accordance with the principle of totality.  Your time in custody has been impacted by the COVID pandemic.  Your visitation rights, movements within the gaol system, ability to undertake courses, and receive visits have all been impacted and should be taken into account in amelioration of your sentence.
34	Further, you have remained abstinent from illicit and non-prescribed drugs whilst in custody which is something you have not been able to achieve in the past.  It was further submitted that given your history, your prospects of rehabilitation could not be regarded as any higher than guarded.  However, it was suggested that you were now contemplating whether you might return to Romania and resume work in a family business.
35	A letter from your sister was also tendered and it stated that she would support you upon your release by providing you with accommodation and that you would be offered the chance of employment in her cleaning business.  She describes you as not being a lazy man and believes you have learnt from your mistakes.
36	Further, it was submitted on your behalf that although there is little in the personal circumstances of you and Mr Rusu that are similar and it is conceded that these differences justify disparity in sentence, parity still 'looms large'.  The prosecution put the case on the basis that in terms of the role played in the offending, you and Mr Rusu were equally culpable.  Mr Rusu on the same charge of conspiracy received a sentence of 21 months' imprisonment.
Prosecution Submissions
37	The prosecutor, Mr Devlin did not take issue with any of the submissions made on your behalf.  The prosecutor tendered a table summarising comparable cases that have been concerned with this type of offending.  Many of those cases have resulted in a much greater amount of money being obtained than the amount of money you obtained. Although that may be the case, the principles in those cases as to why this is such serious offending are helpful and I have had regard to current sentencing practices.  
38	The prosecutor emphasised that while your role and the role of Mr Rusu in the offending may be regarded is equal in terms of culpability, Mr Rusu had the prospect of deportation after completing his sentence and you have far more significant prior convictions.
Consideration 
39	I accept your counsel's submission as to the relevant factors in mitigation.  You will be accredited with a significant amelioration of sentence as a result of your plea and the difficulties you have experienced and may well continue to experience in custody.  The plea has expedited the course of justice.
40	I will also take account of the principle of totality and that you have served 74 days in custody in addition to your pre-sentence detention for this offending.
41	Mr Camara, you must understand that this is serious offending.  The amount of money involved while not a huge amount compared to other offending is only part of the crime.  The sophistication and persistence with which this offending occurred makes it serious.  The electronic banking system must be protected by the courts.  It is also serious offending to steal the personal account details of innocent members of the public.  While I accept that you have significant drug problems, you have committed this offence a number of times in the past.
42	The sentence in my view, must punish you in an effort to stop you doing this.  The sentence must denounce your conduct and deter others from engaging in similar conduct.  You are not to be punished again for your offending in the past, but that past offending bears on your moral culpability for this offending which I regard as high. 
43	I will take into account that your sentence must be fair in comparison to the sentence passed upon Mr Rusu, but he unlike you, had not committed this type of offending in the past although he had previously committed some dishonesty offences.  In all the circumstances, and considering all relevant matters and purposes of sentences, I have determined that you should receive the following sentence.
44	On the charge of conspiracy to defraud you will be convicted and sentenced to three years' imprisonment.  I declare that you serve a minimum of two years and four months before being eligible for parole.
45	Pursuant to s 18(4) of the Sentencing Act 1991 (Vic) I declare that the 807 days that you have served in pre-sentence detention be reckoned as time already served under the sentence passed today.  I direct that this be entered into the records of the court.
46	In relation to s 6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty to this offence, I would have sentenced you to a sentence of four years and six months imprisonment.  
47	I will make the forfeiture order in the terms sought by the Crown and lodged with the court. 
48	Look, it's not as heavy a sentence as you've got in the past, but don't take that to mean that you can continue to do this type of activity.  Your priors are becoming terrible and you need to make sure that when you get out, you do everything you possibly can to avoid coming back to court.  Do you understand?
49	OFFENDER:  I know Your Honour.  But I think in time I - I will go back to my country anyway.
50	HIS HONOUR:  All right.  We'll adjourn now.  We'll adjourn the court and thank you again for your late attendance counsel.
51	OFFENDER:  Thank you very much, if it please.
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