Police v Hristov [2017] NZDC 23284 (12 October 2017)

Last Updated: 23 June 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT AUCKLAND

CRI-2017-004-009676

[2017] NZDC 23284

NEW ZEALAND POLICE

Prosecutor v

STOYAN DIMITROV HRISTOV NEDELCHO KOLEV Defendants

Hearing:	12 October 2017
Appearances:	J Bergseng for the Prosecutor R Keam for the Defendants
Judgment:	12 October 2017

NOTES OF JUDGE C D SYGROVE ON SENTENCING

[1] Mr Kolev and Mr Hristov, you have both been charged with using a document to commit crimes. Your crime involved what is commonly known as “skimming” or “cloning”, using ATM cards. You did this by inserting a card reader device in an ATM machine, by placing it in a green sleeve in the machine, and you obtained the PIN numbers from people who used the machine. Then, using those numbers, you were able to access the various people’s bank accounts.

[2] The losses to New Zealand financial institutions runs into millions of dollars every year as a result of this type of activity but in your case, of course, the amount was limited to $15,060. You said that you had come here to compete in the Masters Games and you both say that you were prevailed upon by persons unknown to commit this criminal activity. Between 20 April and 1 May this year there were 188

NEW ZEALAND POLICE v STOYAN DIMITROV HRISTOV [2017] NZDC [12 October 2017]

events recorded using these cloned plastic ATM cards. You were captured on numerous occasions by bank CCTV cameras at ATM machines at various locations.

[3] You, Mr Kolev, said when you were apprehended that you had been provided the blank cards by unknown persons and told to use them, and in return you could keep some of the money and the other person would keep the balance.

[4] So far as previous convictions are concerned, from the enquiries the police have made you have no previous convictions in New Zealand and it appears you have no previous convictions overseas either.

[5] Your lawyer’s submission is aimed at a starting point of 12 months’ imprisonment and, after various deductions and considerations, the end sentence he says is around eight months’ imprisonment. He refers me to the case of R v Varjan1 and the case of Haron & Anor v Police.2 In that case there were 20 cloned credit cards, the fraud involved a loss of $66,000 and the sentence was two years and two months’ imprisonment. He refers me to other cases but in particular a case of R v Casaneanu3 and Ghirvu.4 In that case the amount involved was only $1780 and $3280, and the end sentence in that case after a starting point of six months was four months’ imprisonment.

[6] Based on those cases, Mr Keam submits an appropriate starting point is 12 months’ imprisonment. He says there are no personal aggravating factors in regard to both of you and that there should be a mitigating factor involved because you both are non-English speaking prisoners and that a one month discount should be warranted for this factor, and refers me to Batick v R.5

[7] The police submissions from Ms Bergseng are that because of the number of withdrawals, 188, and the fact that you were found in possession of 11 cloned credit cards that the offending is sophisticated, premeditated and repeated. She says that the

1 R v Varjan CA87/03, 26 June 2003

2 Haron & Anor v Police HC Auckland CRI-2009-409-000013, CRI-2009-409-000014, CRI-2009-409-000015, 5 March 2009

3 R v Casaneanu

4 Ghirvu

5 Batick v R [2016] NZCA 307

High Court case of Haron v Police indicates that banks in New Zealand are particularly vulnerable to this type of offending, that a deterrent sentence is called for and that a starting point should be 24 to 30 months’ imprisonment to reflect the seriousness of the offending and achieve the relevant purposes of sentencing. Further, Ms Bergseng says that the police are retaining $15,000 as a result of your offending and she seeks reparation of $9191.25 be paid by way of reparation to [the bank] and the balance of the funds be forfeited to the Crown.

[8] The pre-sentence reports both refer to your history; that you came over here to attend the sporting activity, that someone approached you, that you do not speak any English, that you express remorse for what you have done, that you have families back in Bulgaria and that because, of course, you have no family or other support network in New Zealand that a community-based sentence is not available to you and the only sentence for criminal activity of this type is imprisonment. Of course, I agree with that, as do counsel for you and for the police.

[9] In light of the fact that reparation is able to be paid, and my careful consideration of the submissions of both counsel, I agree with the submissions of your lawyer Mr Keam. Accordingly I agree the starting point is 12 months’ imprisonment. I do not think the level of sentencing calls for any greater penalty than that on the basis of the cases and the fact that you are paying reparation in full; indeed, there is a further

$6000 in round figures to be forfeited to the Crown. After a reduction of one month for the fact that you will find it more difficult in prison because you are non-English speaking and the full discount for your early plea, the end sentence should be eight months’ imprisonment for each of you.

[10] Mr Hristov, you are sentenced to eight months’ imprisonment. There will be no release conditions on his release from jail; $7500 is forfeited to the Crown, $4595 to be paid to [the bank] and the balance goes to the Crown.

[11] Mr Kolev, you are sentenced to eight months’ imprisonment. There are to be no release conditions and $7500 is forfeited to the Crown. Of that, $4595 is paid to [the bank]. The balance goes to the Crown.

C D Sygrove District Court Judge