More than 200 debit/credit cards affected
Two charges of attempted theft from Automatic Teller Machines resulted in a sentence of 16 months’ imprisonment for Andon Krastev Smilyanov, a visitor from Bulgaria who pleaded guilty.
Magistrate Valdis Foldats imposed the sentence on Monday.
Defense attorney Dennis Brady had urged him to impose six months, the same as another defendant in an earlier case. Mr. Brady emphasized that no money was actually stolen by Smilyanov.
The magistrate said the scale of the offending could be measured by the number of credit/debit cards that had been compromised.
When Smilyanov, 32, was first brought to court in April, the estimate was that between 60 and 100 people had been seen on CCTV whose cards were potentially affected. This week, however, Crown counsel Candia James said a little over 200 personal identification numbers had been compromised.
The magistrate pointed to the time, energy and expense the bank had to go through to “re-PIN” the cards, plus the inconvenience to the customers concerned.
Ms. James explained that a senior officer of Cayman National Bank contacted police after someone observed what appeared to be a card-skimming device in an ATM. Officers and bank officials examined CCTV footage from March 26. As a result, officers checked with the Immigration Department and this led them to the West Bay Road resort where Smilyanov had been staying since his arrival on March 21.
Items found in his room included tape, “super glue” and a plastic skimming device. Smilyanov was interviewed with the assistance of an interpreter and he initially denied any wrongdoing. He subsequently pleaded guilty to attempting to steal credit and debit card track data from Cayman National Bank on March 26 and March 27 with the use of a card-skimming device.
Ms. James explained that the attempted theft was of personal information stored on a card’s magnetic strip. The skimming device scans and stores the information, but a PIN is still needed for the information to be used. This scheme required the installation of a camera to view the keypad when a customer uses the ATM.
She noted that the skimmers had been placed in ATMs. at “very heavy traffic areas” – The Strand shopping plaza and the airport Foster’s Food Fair.
Had Smilyanov not been detected, potentially large sums of money could have been stolen, Ms. James pointed out. Further, his offending was a direct attack on the public’s confidence in the banking industry. In addition, it had the potential of causing consumers to be anxious about using ATMs, Ms. James submitted.
Mr. Brady told the court that Smilyanov had not embarked on the scheme out of greed. A trained teacher of physical education and sport, he had also worked as a lifeguard and saved three lives. He left teaching and started his own business. Needing money in 2011, he took out a mortgage on the home he shared with his parents. After a downturn in the economy, the mortgage was being foreclosed.
As a result, Smilyanov took this chance, Mr. Brady narrated. He accepted that his client had not cooperated with authorities in terms of where he had obtained the three skimming devices. “He is not the kind of guy who would stand up and rat out someone. Because of his timidity, self-preservation and concern for his family, he remains a frightened man,” the attorney suggested.
The magistrate accepted that Smilyanov’s remorse was genuine and he was a man of previous good character.
He said he had to consider not only the amount taken but also the amount Smilyanov intended to take – “as much as you could get away with to help with your financial pressure if you had not been stopped by the vigilance of the bank and the police.”
The magistrate cited a 2006 judgment of Justice Alex Henderson. The judge had said that the most important sentencing principle in such cases was deterring others who might be tempted, because this type of offending strikes at the financial underpinnings of this country. The magistrate pointed out that this was a sophisticated, well-planned scheme in which Smilyanov had targeted the Cayman islands. “We still don’t know why, or where these devices came from.” He said lack of cooperation was not an aggravating factor – it was simply the absence of a mitigating factor.
Imposing a short sentence simply as a practical way to save government the cost of imprisonment would undermine the principle of general deterrence, he said.
In his view, a deterrent sentence would be two years imprisonment. The aggravating and mitigating factors balanced each other out, but full credit was given for the guilty plea. Reducing the 24 months by one-third, the final sentence was 16 months for each offense, to be served concurrently. The skimming devices and other items seized were ordered forfeited.