R v Oprescu [2020] NZDC 20701 (7 October 2020)

Last Updated: 14 February 2022

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2020-004-000657

[2020] NZDC 20701

THE QUEEN

v

IONUT ALEXANDRU OPRESCU VICTOR IONUT GHENDAI

Hearing:	7 October 2020
Appearances:	D Becker for the Crown H Leabourn for the Defendant Oprescu A Spika for the Defendant Ghenadi
Judgment:	7 October 2020

NOTES OF JUDGE R J COLLINS ON SENTENCING

[1] I will come to the specific charges for which you are both for sentence in a moment but it is best that they are identified once there is an understanding of the conduct that you were involved in as briefly set out.

[2] You were both involved in an operation known as card skimming, and it is clear that is a world wide problem. You have both travelled from Europe. You could not have travelled further in the world than to the bottom of South Pacific and New Zealand to commit your offending. Let me say at the outset Mr Ghenadi that you assert that you came to New Zealand for innocent reasons and it was purely by chance that you became involved in this offending. I completely reject that proposition as

R v IONUT ALEXANDRU OPRESCU [2020] NZDC 20701 [7 October 2020]

being totally implausible against the proven facts. To accept your assertion would necessitate accepting a number of propositions which totally defy common sense.

[3] You both arrived on 20 November 2019. After your arrival you imported packages containing card skimming devices into New Zealand. Card skimming works by both using hidden cameras to record a victim carrying out an automatic teller transaction while simultaneously having inserted a device which records the detail from the victim’s bank card and the camera records the PIN number. Thereafter the electronic data held on the victim’s card is transferred onto another card with a magnetic strip, and offenders such as yourselves are in possession of the victim’s PIN number.

[4] In this case you imported into New Zealand all the equipment that you needed to carry out this offending. You put the plan into effect and you obtained at least

$74,000, $44,000 of which Mr Ghenadi you laundered by placing into a Cryptocurrency form where I understand that those funds remain accessible only by you.

[5] When New Zealand Customs became aware of the offending a search warrant was executed at the premises that you were occupying. At this stage that was over two months after your arrival into New Zealand so your offending was sustained over a two month period. It was sophisticated and it was premeditated.

[6] When the police executed the search warrant you were both in the process of manufacturing card skimming devices and deep insert skimmer insertion removal instruments. Customs located four devices in various stages of manufacture that would be capable of skimming magnetic strip data once fully assembled. They found and seized one fully assembled camera capable of capturing personal identification number of a victim. They found 10 cameras in various stages of manufacture that would be capable of capturing PIN entry, five devices were close to full assembly, and five devices were in the early stages of assembly. They found numerous deep insert skimmer insertion removal instruments, an instrument used to push and pull a deep insert skimmer until it latches it into position with an ATM and used to remove the skimmer. They found a fully functioning ATM card magnetic strip reader writer used

to write captured skim data on an ATM card, and they found various tools, components, including magnetic tape, sandpaper, modeller’s putty, solder and solder paste and a mains powered soldering iron.

[7] Concealed within Mr Ghenadi’s pillow were the following:

• (i) altered cards that contained financial information that was inconsistent with what was written on the physical cards;
  
• (ii) a bonfire card loaded with the financial information linked to a victim of Westpac’s Mastercard;
  
• (iii) a Smiggle gift card loaded with financial information linked to another victim’s Westpac Maestro Mastercard;
  
• (iv) a JB Hi-Fi gift card loaded with financial information linked to a victim’s ASB Mastercard;
  
• (v) a Countdown One Card/AA Card loaded with financial information linked to a victim’s Westpac Maestro Mastercard.
  

[8] Search of Mr Ghenadi’s revealed a Farmers card found inside a wallet loaded with financial information linked to a victim’s Westpac Mastercard; a key and swipe card access to the address and two Samsung smartphones. A search of Mr Ghenadi’s rented vehicle revealed modelling clay used in the manufacture of skimming devices and a cash deposit slip. The summary of facts goes on to provide a lot more detailed and technical information. When arrested Mr Ghenadi, as was your absolute right, you elected not to make any statement to the police. Mr Oprescu made a full confession and has cooperated with the authorities.

[9] I turn from the offending to your personal circumstances. Sentencing today proceeds on the basis that you are both first offenders. I have read the pre-sentence reports. I have considered the additional material that has been provided subsequent to the sentencing indication. That includes information about your respective families

and your backgrounds. It seems that in both cases your mothers suffer medical conditions which could be regarded as serious, but different illnesses.

[10] I am not going to repeat what is contained in the sentencing indication, simply to summarise that at that point the Crown submitted that for you Mr Ghenadi the starting point should be one of four years’ imprisonment, and for Mr Oprescu the starting point should be one of three and a half years.

[11] Counsel for Mr Oprescu argued for a starting point of two and a half years, and for Mr Ghenadi one of three years. Based on the cases provided to me, those cases being a number of District Court decisions and one High Court decision, I accepted the Crown submission and set the starting point for Mr Ghenadi at one of four years’ imprisonment, and for Mr Oprescu three and a half years’ imprisonment. I indicated that if a plea came within a period agreed with counsel then a full 25 per cent discount for guilty plea would be granted.

[12] The case that had the most influence on the sentencing indication that I have was the High Court decision in Haron and Men v New Zealand Police.1 Clearly it had to be the most influential because it was the one High Court case. That decision is now over 10 years old. At paragraph 8 of that decision Justice Fogarty endorsed what the District Court Judge had said. In the District Court Judge Doherty had stated:

The purpose of sentencing you is to not only make you accountable and to denounce you but particularly to deter you. I have had a report from a person who is known as the Country Risk Director for Australia and New Zealand and the Pacific Islands for Visa International. This is an experienced person whose job is to examine security and protect his employer. He tells me that visa card fraud in New Zealand for the 12 month period ending 30 June of this year was approximately $US5.7 million, an increase of about 30 per cent for the period ending September 20017 and of that amount counterfeit fraud using plastic cards was $US1.2 million a 100 per cent increase on the year before. He tells me that counterfeit fraud is now the fastest growing credit card fraud in New Zealand and that we are here in this country seen something of a soft touch because as yet we have not got the appropriate investment in chip cards and technology.

[13] When I add that to what I know about what has happened here I think that your coming to New Zealand has been part of that soft touch, and people who do that ought

1 Haron and Men v Police High Court, Christchurch CRI-2009-409-000013 5 March 2009.

to know that the courts will take a stern approach. So it is deterrence that is the highest purpose of sentencing you today. Clearly much has changed since then in terms of technology but the underlying sentiment and concern of the sentencing judge remains unaffected.

[14] I turn then to the matters argued for you today for further discount or credit. For you Mr Ghenadi, Mr Spika submits that you are entitled to a further discount of 10 per cent because serving a sentence of imprisonment in New Zealand will be additionally harsh for you as a foreign national. I do not propose to grant that discount to either you or to Mr Oprescu.

[15] You chose New Zealand as the venue for your crime. You travelled a long way to get here. People who would be minded to commit the sort offending that you would commit and particularly those who would recruit people such as you, need to know that there will be no discount when New Zealand is specifically selected for this type of crime. Indeed we would become a soft touch if it was well known amongst organised criminal groups that if you get caught doing this offending in New Zealand as a foreign national you will get a credit at sentencing from the otherwise appropriate sentence because you have to serve your sentence in a New Zealand prison.

[16] I also accept Mr Becker’s submission for the Crown that the real test is whether the sentence becomes unduly harsh or becomes unacceptably oppressive because you are away from your home country, and that is far more likely to be the case for much longer in terms of imprisonment that arise in Class A drug dealing offending.

[17] I do not consider the lengths of sentences that you will serve in New Zealand do become in anyway oppressive or undue on account of the fact that you are incarcerated in a land which is not your home country.

[18] It is argued for you Mr Ghenadi that you are remorseful and you should get a credit or discount for that. I am unpersuaded that you are objectively remorseful. I have no doubt that you are extremely sorry for yourself in the position you find yourself. Relevantly Mr Becker points out that if there was genuine remorse there would be efforts taken on your behalf to access the stolen funds and to make amends,

or to make offers of reparation. So there will be no credit for you for remorse which I do not accept is objectively made out.

[19] In the case of Mr Oprescu the prosecutor accepts that your expressions of remorse are objectively supported in the most meaningful way, and that you immediately made a full confession and cooperated with the authorities. So in your case Mr Oprescu there will be a discount of 5 per cent from the starting point for that remorse.

[20] You both seek credit for previous good character. I have considered that I accept and sentencing proceeds as I said earlier on the basis that neither of you had previous convictions. However, this was premediated offending. It is blatant unvarnished criminal offending and it extended over a number of weeks, and quite simply in those circumstances I am not prepared to give credit for the fact that you have no previous convictions.

[21] In the case of Mr Oprescu it is argued that you are suffering from depression. There is quite simply insufficient information before me to grant a credit for that, and insufficient information of its severity or of a causative nature that credit should be provided for that.

[22] In addition, it is argued for you Mr Ghenadi that you have a gambling addiction and that should also be a part of credit given to you. Again, I simply do not have available sufficient information in that regard which would satisfy me that it would be appropriate to give you further credit for that.

[23] So applying the appropriate discounts you will be sentences as follows:

[24] Mr Ghenadi on the charge of forgery and that is for you the charging document ending 291 and on the charge of money laundering you are sentenced to concurrent terms of imprisonment of three years, and all other four charges concurrent terms of imprisonment of one year. The total term of imprisonment is one of three years.

[25] Mr Oprescu for you on the charge of forgery that is the charging document ending 294 you are sentenced to imprisonment of two years five months, and all other three charges concurrent terms of imprisonment of one year. Total term of imprisonment of two years five months.

[26] The Crown seeks forfeiture of a number of items set out in schedule 1 to the Crown sentencing memoranda, pursuant to s 142(b) of the Sentencing Act 2002 all matters set out in that schedule will be so forfeited.

R J Collins

District Court Judge