Stepanovic v The Queen - [2015] NSWCCA 191

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Stepanovic v R
Medium Neutral Citation:	[2015] NSWCCA 191
Hearing Date(s):	23 June 2015
Decision Date:	22 July 2015
Before:	Price J at [1]; R A Hulme J at [39]; Davies J at [40]
Decision:	(i) Appeal against conviction dismissed. (ii) Leave to appeal against sentence granted. (iii) Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction and sentence – credit card fraud – joint criminal enterprise – aggregate sentence.
Legislation Cited:	Crimes Act 1900 (NSW) ss 112(2) and 192E(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 12, 53A(1) and 53A(2)(b)
Cases Cited:	Gillard v R [2003] HCA 64; (2003) 219 CLR 1 Hawi v R [2014] NSWCCA 83 Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Category:	Principal judgment
Parties:	Ivica Stepanovic (Applicant) Director of Public Prosecutions (Crown)
Representation:	Counsel: S Dowling SC (Crown)
File Number(s):	2012/98905
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	Trial: 25/03/13 – 27/03/13 Sentence: 23/08/13
Before:	DCJ Charteris SC
File Number(s):	2012/98905

JUDGMENT

Price J: Ivica Stepanovic, the applicant, was tried in March 2013, before Charteris SC DCJ and a jury of 12 on an indictment containing the following charges:
Count 1: That [the applicant] on 28 March 2012, at Glebe, in the State of New South Wales, did break and enter the dwelling house of Graeme Moseley situated at 20/150 Wigram Road, Glebe, and did commit a serious indictable offence therein namely larceny of a briefcase containing a wallet, bankcards, personal documents, keys, a pair of glasses, a sum of money and a mobile phone, in circumstances of aggravation, namely, knowing that there was a person or persons in the said premises.
This is an offence contrary to s 112(2) of the Crimes Act 1900 (NSW), the maximum penalty for which is imprisonment for 20 years.
Count 2: That [the applicant] on 28 March 2012, at Sydney, in the State of New South Wales did dishonestly obtain items, namely two Vodafone recharge vouchers to the value of $29 and other items to the value of $22.70 from Town Hall Square Newsagency by deception, namely, using a stolen credit card in the name of Graeme Moseley.
Count 3: That [the applicant] on 28 March 2012, at Sydney, in the State of New South Wales did dishonestly obtain items to the value of $49.00 at St Martins City News Sydney by deception, namely, using a stolen credit card in the name of Graeme Moseley.
Count 4: That [the applicant] on 28 March 2012, at Sydney, in the State of New South Wales did dishonestly obtain items to the value of $84.50 at Meing Kiosk Sydney by deception, namely, using a stolen credit card in the name of Graeme Moseley.
Counts 2, 3 and 4 are offences of fraud contrary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stepanovic v The Queen

Details

AGLC: Stepanovic v The Queen [2015] NSWCCA 191
Case: [2015] NSWCCA 191
Decision Date: 22 July 2015

CaseChat Overview and Summary

In the case of Stepanovic v The Queen, the appellant challenged both his conviction and sentence on appeal. The primary issues involved the appellant’s involvement in a joint criminal enterprise where credit cards were stolen from a residence and subsequently used fraudulently. The appellant argued that he should not be convicted of credit card fraud as he did not personally use the stolen cards, and he also contended that the trial judge erred in instructing the jury regarding the principle of joint criminal enterprise. Additionally, the appellant appealed the aggregate sentence imposed for the various offences, arguing that separate sentences should have been imposed for each count.

The court examined whether the appellant's understanding of the joint criminal enterprise doctrine was accurate. It concluded that the jury was correctly instructed and that it was open to them to find the appellant criminally responsible for the acts of the co-accused under the joint criminal enterprise doctrine. The court emphasised that under this doctrine, each participant in a criminal agreement is responsible for the actions of others in executing the crime, regardless of the specific roles played. The court found that the trial judge provided comprehensive directions to the jury, correctly summarising the law on joint criminal enterprise and allowing the jury to consider the factual circumstances of the case.

As a result of the appeal, the court dismissed the conviction appeal, affirming that the jury's conclusion that the appellant was part of a joint criminal enterprise was legally sound. The sentence appeal was also dismissed, with the court upholding the imposition of an aggregate sentence as permitted under the Crimes (Sentencing Procedure) Act. The court found no error in the trial judge's sentencing approach and confirmed the appropriateness of the aggregate sentence imposed.

In conclusion, the court upheld both the conviction and the aggregate sentence imposed on the appellant, finding no merit in the arguments presented regarding the joint criminal enterprise doctrine or the sentencing methodology.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence at trial I do not propose to recount all of the evidence, but will summarise significant parts of it. The applicant did not give evidence nor did he call any evidence in his case. The principal Crown witness was Ms Townsend, the co-accused. Ms Townsend pleaded guilty to one count of breaking and entering with a 25 per cent discount for her plea and a further 15 per cent discount for providing assistance to authorities. She was sentenced to 19 months imprisonment which was suspended pursuant to s 12 Crimes (Sentencing Procedure) Act 1999 (NSW). The co-accused signed a written undertaking that she would give evidence on behalf of the prosecution against the applicant. Ms Townsend gave evidence that in the early hours of Wednesday 28 March 2012, she arranged to meet the applicant at his home in Glebe. She drove from Bowral, arriving at about 5am. The applicant was waiting for her at the window and came down to let her in. Ms Townsend and the applicant consumed ice. The co-accused said that the applicant asked her to drive him around to look for a house to break into to get money for drugs (T98 1-4). After driving around, the applicant told Ms Townsend to stop because he had seen an open window with a hedge outside. Ms Townsend stopped the car and waited while the applicant entered the house. Approximately 10 or 15 minutes later, the applicant returned carrying a briefcase which was covered by his jacket (T98 21-28). Ms Townsend testified that the applicant, who was seated in the front passenger seat, opened the briefcase and told her that it contained a mobile phone, credit cards, keys, a wallet (she was unsure about the wallet), money and a man’s reading glasses (T99 29-43). The applicant kept the money. Ms Townsend and the applicant then went to Town Hall in the city. After parking, the applicant told Ms Townsend to use one credit card, possibly the American Express and she said that they may not be able to as the card was in a man’s name. Ms Townsend used the card at a Newsagency to purchase phone credit with Vodafone and possibly cigarettes. While Ms Townsend was in the Newsagency using the credit card, the applicant was elsewhere trying to use the other cards (T100-101; 102). After using the credit card at the Newsagency, Ms Townsend tried to purchase cosmetics at the Woolworths, Town Hall but the card was declined and the woman serving her became suspicious, asking to see her identification (T101). Ms Townsend remained in the Town Hall Woolworths area for approximately half an hour, trying to find the applicant. At one point, Ms Townsend found the applicant trying to buy something from a street stall which sold magazines and drinks outside Town Hall station. Later, Ms Townsend rang the applicant who told her that he was on his way back to Glebe. Ms Townsend then drove towards Glebe and picked him up. The applicant wanted to drive to Kings Cross to buy drugs and Ms Townsend drove with him in the front seat, towards Kings Cross. As the applicant wanted to get rid of the suitcase, which was in the boot, Ms Townsend stopped the car in a backstreet while the applicant got the suitcase out of the boot and put it in a bin. As they were driving towards Kings Cross, the applicant threw the keys out of the car window and they parked on the main street.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Consideration The applicant’s contention that he should not have been convicted of the credit card fraud as he had not personally used the stolen credit cards arises, it seems, from his lack of understanding of the doctrine of joint criminal enterprise. It was plainly open to the jury to be satisfied beyond reasonable doubt that the applicant and the co-accused had agreed to break into Mr Moseley’s home and to thereafter dishonestly use the stolen credit cards. Although they may have had different roles in carrying out the agreed crime, each is equally responsible for the acts of the other. It does not matter that the applicant did not personally use the stolen credit cards. As was said by the majority (French CJ, Crennan, Kiefel, Bell and Gageler JJ) in Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 at [37]: “The doctrine of joint criminal enterprise provides the means of attaching liability for the agreed crime on all the parties to the agreement regardless of the part played by each in its execution.” The applicant’s complaint that the trial judge erred in giving the jury proper instructions in the way they came up with the verdicts in the three counts of fraud is without foundation. The trial judge gave careful directions to the jury concerning the doctrine of joint criminal enterprise and summarised the competing cases. The directions included the following (T9 27/03/13): “The prosecution in this case has relied on what is known as the principle of joint criminal enterprise. The law of this State is that if two or more persons carry out a joint criminal enterprise, that is an agreement to carry out a particular criminal activity, each is to be held criminally responsible for the acts of the other participants in carrying out that enterprise or that activity. That is so regardless of the particular role that might be played in the enterprise by the various participants. To rely on joint criminal enterprise the prosecution must establish firstly that there exists a joint criminal enterprise and secondly, that the accused participated in that joint criminal enterprise. Under our law a joint criminal enterprise exists when two or more persons reach an understanding or an arrangement that amounts to an agreement between them that they will commit a crime. The agreement need not be expressed in words. Its existence may be inferred from all the facts and all the circumstances surrounding the commission of the offence” (italics added). In my view, the appeal against conviction must be dismissed. The sentence appeal The applicant’s appeal against sentence is essentially confined to his belief that he should not have been convicted of the three counts of fraud. However, a further complaint is that an aggregate sentence should not have been imposed and that he should have been separately sentenced for each of the four counts. Section 53A(1) of the Crimes (Sentencing Procedure) Act provides: “A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.”