Neutral Citation Number: [2018] EWCA 1064 (Crim)
Case No. 201702225 A4
IN THE CORT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday  26th January  2018

B e f o r e:
LORD  JUSTICE  SIMON

MR  JUSTICE  SPENCER

and

HIS  HONOUR  JUDGE  PICTON
 (Sitting as a Judge of the Court of Appeal Criminal Division)
_________________

R E G I N A
 
- v -

IONUT  EMANUEL  LEAHU
____________________
Computer Aided Transcription by
Wordwave International Ltd trading as DTI
165 Fleet Street, London EC4A 2DY
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
____________________

Mr J Holland appeared on behalf of the Appellant

______________________
J U D G M E N T
LORD JUSTICE SIMON:  
1.  On 3rd April 2017, in the Crown Court at Inner London, the appellant changed his plea to guilty to an offence of conspiracy to defraud, contrary to common law.  On 2nd May 2017 he was sentenced by Her Honour Judge Karu to a term of 58 months' imprisonment.

2.  A co-defendant, Gheorghe Mirzac, had also changed his plea to the same offence.  He was sentenced to a term of 34 months' imprisonment.

3.  The appellant appeals against his sentence with the leave of the single judge.

4.  The conspiracy concerned a carefully planned, sophisticated fraud whereby an organised crime group obtained access to 51 ATMs over a spring bank holiday weekend at the end of May 2014 at locations around England, from Blackpool to Brighton.  All the cash machines belonged to a company called Cardtronics.  The computers inside the cash machines were tampered with, and this enabled the offenders to remove cash in very large quantities.  Over a five day period from 21st to 27th May 2014 over £1,300,000 was stolen.

5.  The parties to the conspiracy included four Romanian or Moldovan men: Paladi, Bortos, the appellant and Mirzac.  Paladi was arrested in October 2014.  He pleaded guilty at his pre-trial preparation hearing on 27th January 2015 in the Crown Court at Southwark to an indictment drafted in similar terms.  He was sentenced to a term of five years' imprisonment.  The case of Bortos was tried at the Central Criminal Court.  He initially pleaded not guilty on 25th September 2015, but changed his plea when the trial was listed in December 2015.  He was sentenced to a term of seven years' imprisonment.  

6.  It is unnecessary and perhaps undesirable to describe precisely how the fraud was carried out.  The significance of the bank holiday weekend was that the ATMs were loaded with extra cash in anticipation of the heavier demand by customers during that period.  It was in preparation for this that malware had been loaded late at night prior to the bank holiday weekend.  

7.  The fraud eventually came to light when the police observed suspicious activity by an unidentified male at an ATM in Morden.

8.  A particularly sophisticated virus had been introduced.  The police did not think that ATMs in the United Kingdom had been attacked by the virus before, but it had been used in Russia in June 2014 and in Kuala Lumpur in September 2014.  There was evidence that Paladi and Bortos were in Kuala Lumpur at the time of the offending there, suggesting that the same organisation was involved in all of the attacks.  

9.  Bortos was sentenced on the basis that he held a middle-ranking role that was at a similar level to Paladi. Paladi or Bortos were present or nearby when the malware was loaded.  The appellant's role included identifying and then accessing ATMs so that the malware could be loaded.  There was frequent telephone contact between the conspirators.  Between 19th March and 16th May 2014, there were some 273 calls or texts exchanged, and a further 86 instances of phone contact between the appellant and Bortos' phone between 17th and 19th May 2014, and twice between the appellant and Paladi on 17th May.  The evidence was consistent with the appellant's actions being co-ordinated by Bortos.

10.  The appellant and Mirzac were both arrested on 16th May 2014, a few days before the spate of thefts over the bank holiday weekend.  

11.  Following their arrest they were taken to Brixton Police Station, interviewed and released on police bail.  They were bailed to 14th July 2014.  While they were in custody, Bortos was in contact with the appellant asking where they were.  Within half an hour of their release, Bortos was contacted by telephone.

12.  Mirzac and the appellant both then fled the jurisdiction.  The appellant boarded a flight from Luton to Bacau in Romania on 18th May 2014 and Mirzac went to Moldova via Istanbul on 29th May 2014.

13.  There was an application for European Arrest Warrants and they were extradited – the appellant on 30th September 2016 from Romania and Mirzac on 11th February 2017 from France.

14.  Records also showed that the appellant had travelled to Istanbul with Bortos on 19th April 2014.

15.  It is unnecessary to say anything further about the facts, since the grounds of appeal are confined.  It is said that, in sentencing the appellant, the judge referred to the fact that Mirzac in his basis of plea had said that he had been recruited by the appellant.  Reliance is placed on one short aside in the judge's sentencing remarks, where, in sentencing the appellant, she said:

Mirzac's basis of plea states that you introduced him to Bortos.

16.  This was true.  Mirzac's basis of plea did say that the appellant had introduced him to Bortos.  However, the appellant's basis of plea, at paragraph 6, was that he had not recruited anyone.  It follows that what the judge said was only relevant to Mirzac.  It should have been avoided when dealing with the appellant's sentence in the light of his basis of plea.
17.  In his well-focused submissions this morning, Mr Holland has submitted that if recruitment was treated as an aggravating feature, the question is: to what extent did it aggravate the sentence against the appellant?  He submits, as is undoubtedly the case, that it was listed in the passage dealing with aggravating factors in relation to the appellant, and that the inference can properly be drawn that it aggravated the sentence in the mind of the judge against the appellant.  

18.  In our view, it did not.  On his basis of plea, Mirzac had been involved for a single day – the day of his arrest – and involved in two cash machines.  He had not been paid.  Before the short observation of which complaint is made, the judge had set out a sound basis for sentencing the appellant to a term of 58 months' imprisonment.  She differentiated the roles of the appellant and Mirzac.  She said:

Leahu, in your basis of plea you state your role was that of reconnaissance for a maximum period of two weeks.  You were paid £1,000 per week.  The role evidently included identifying and then accessing ATMs with a view to malware being loaded onto them.  You knew what the purpose of the enterprise which you lent yourself to was although you may not have known the full extent of it and you were content to lend yourself to the facilitation of the fraud.  

The fact that you were provided with the notebook which contained the locations of the ATMs and given the keys to some of them suggests you were a trusted member of the enterprise.  You were in possession of the keys when you were arrested.  You were in frequent contact with Bortos and also with Paladi which suggests co-ordinated activity.

19.  The sentence on the appellant was neither wrong in principle, nor resulted in a sentence that was manifestly excessive – nor, we would add, was it such as to give rise to objectionable disparity.  Indeed, if the appellant and Mirzac had received the same sentence, or if the appellant had received a substantially lower sentence, it would have been Mirzac who would have cause for complaint.

20.  The appeal is accordingly dismissed.