Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Stepanovic v R [2015] NSWCCA 191 Hearing dates: 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 1. 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: 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. Counts 2, 3 and 4 are offences of fraud contrary to s 192E(1)(a) of the Crimes Act, the maximum penalty for which is imprisonment for 10 years. 8. The trial commenced on 25 March 2013 and the jury returned its verdict of guilty to all counts on 27 March 2013. 9. On 23 August 2013, an aggregate sentence of imprisonment was imposed by the trial judge comprising of a non-parole period of 3 years 9 months commencing on 1 October 2012 and expiring on 30 June 2016, with a parole period of 2 years commencing on 1 July 2016 and expiring on 30 June 2018. 10. Notice of Grounds of Appeal 11. The applicant, who represented himself in this Court, appeals against his convictions for the three counts of fraud. He does not appeal against his conviction on count 1. The applicant's handwritten Notice of Grounds of Appeal discloses the following: 12. The applicant appeals the 3 counts of obtain money by deception due to him not having used the credit cards that he was found guilty of using. Further, he believes that the trial judge erred in giving the jury proper instructions in the way they came up with the trial verdict for the fraudulent counts. 13. That the co-accused pleaded guilty to her role with the credit card changes and that the credit cards had nothing to do with the applicant. 14. The applicant does not believe that he should have been tried for the fraud charges when the co-accused is the one captured on CCTV using the cards and not himself. 15. The applicant alleges that the lawyer that was appointed to him failed to follow any of his instructions that he put to him to ask the main witness. 16. That the main witness should have been asked about her bipolar disorder and her misleading police in the past and credibility (sic). 17. According to paragraphs one to three of the Notice of Grounds of Appeal, the applicant, in reality, contends that the jury's verdicts in the fraud counts are unreasonable and cannot be supported by the evidence. He also challenges the trial judge's directions to the jury in respect of these counts. 18. It is unnecessary to consider the matters raised in paragraphs four and five. No submissions were made, or evidence adduced, in support of the applicant's complaints concerning his legal representation at trial. There is nothing in the trial transcript to suggest that he was not competently represented during the trial. 19. It became evident from the applicant's written submissions that his appeal was not confined to the convictions for the three counts but that he wishes to appeal against sentence. The applicant states: 20. "I just want to try and get a few months of (sic) if possible if (sic) I was given extra time fore (sic) something she did And I belive (sic) that they were sepret (sic) crimes and that maybe they should have been seprented (sic) sentences 4 each crime" (AWS 3). 21. Argument on the conviction appeal 22. The applicant submitted that Jennifer Townsend ('the co-accused') committed the credit card fraud, which was recorded on camera. He contended that the co-accused was not threatened or forced to do what she did. The applicant pointed out that she pleaded guilty. He argued that the trial judge had not directed the jury properly. 23. Ms Dowling SC, for the Crown, argued that this was an overwhelming Crown case. Ms Dowling submitted that the applicant's involvement in the joint criminal enterprise with the co-accused, to steal and use Mr Moseley's credit cards, was well established on the evidence (CWS 11). 24. Legal principle 25. The doctrine of joint criminal enterprise was explained in Gillard v R [2003] HCA 64; (2003) 219 CLR 1 by Hayne J at [110]: 26. "In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission." 27. In considering the applicant's appeal against conviction, the Court is required to examine all of the evidence in determining whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. In Hawi v R [2014] NSWCCA 83, Bathurst CJ said at [307]: "The principles on which an appellate court is required to deal with a ground of appeal that a verdict was unreasonable are now well established. They were set out by the High Court in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 (M) and have been consistently reaffirmed since that time. They were summarised by a majority of the High Court in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 (SKA) in the following terms: "[11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'" (italics added). 1. The evidence at trial 2. 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. 3. 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). 4. The co-accused signed a written undertaking that she would give evidence on behalf of the prosecution against the applicant. 5. 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. 6. 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). 7. 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). 8. 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. 9. 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. 10. While Ms Townsend was in the Newsagency using the credit card, the applicant was elsewhere trying to use the other cards (T100-101; 102). 11. 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). 12. 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. 13. They then had a drink in a hotel. Ms Townsend left the hotel in search of someone from whom she could purchase cocaine. She met a person in a park who was selling drugs and telephoned the applicant, telling him to come. After waiting for 10 minutes, Ms Townsend rang the applicant again, saying "I don't want to stick around here, I'm gonna move the car around the corner" (T104). 14. Upon returning to the car, Ms Townsend was arrested. 15. Graeme Moseley gave evidence that the theft occurred at his house in Glebe between 7.15am and 7.45am on 28 March 2012 (T59 40-41; T60 23-24). He had not locked the sliding doors which led onto a patio area. His briefcase and mobile phone were missing. The briefcase contained, inter alia, a set of keys, his wallet with a driver's licence, ATM card, American Express credit card, Visa card and between $300.00 and $350.00 in cash (T60-61; 65). 16. Ex O, photo 1, which is still CCTV footage, shows that the applicant and Ms Townsend entered the Town Hall shopping centre at 7:47am. 17. Ex O, photo 4, shows the applicant standing at the entrance to the Town Hall Newsagency at 7:50am on 28 March 2012, while Ms Townsend enters the shop. At 7:52am, Ms Townsend used Mr Moseley's American Express card to purchase two Vodafone pre-paid recharge vouchers. Ex C is a receipt for $80.70 from Town Hall Square Newsagency which includes two Vodafone recharge vouchers each worth $29.00, purchased by Amex at 7:52am. Ex B, Mr Moseley's American Express card statement records the purchase of $80.70. 18. Ex A, Mr Moseley's ANZ Credit Card Visa statement shows that on 28 March 2012, two purchases were made: $49.00 from St Martins City News Sydney and $84.50 from Meing Kiosk Sydney. Ex S shows that the applicant's phone was recharged to the value of $49.00 at 8:09am on 28 March 2012. 19. Senior Constable Imrie gave evidence that at about 9:45am on 28 March 2012, he observed a gold Toyota Camry (registration no. AJ15RJ) parked on the northern side of Cathedral Street in Woolloomooloo. He watched the applicant open a bin and then jam a large black item, about the size of a suitcase, into the bin and close the lid (T71 47-50; T72 7-9). Shortly thereafter Senior Constable Imrie saw the applicant throw a silver item from the passenger side window of the vehicle as it was moving (T72 17-18). The items were later identified as a briefcase and a set of keys belonging to Mr Moseley, the subject of an aggravated break and enter that same morning (T72 44-50; T73 4). 20. The applicant's case was that Ms Townsend was a dishonest and unreliable witness, who had lied to the sentencing judge in order to reduce her sentence. 21. Consideration 22. 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]: 23. "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." 24. 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. 25. 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): 26. "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). 27. In my view, the appeal against conviction must be dismissed. 28. The sentence appeal 29. 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. 30. Section 53A(1) of the Crimes (Sentencing Procedure) Act provides: 31. "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." 32. The trial judge imposed an aggregate sentence upon the applicant in accordance with s 53A(1). Before doing so, he announced an indicative sentence for each offence, as required by s 53A(2)(b). I do not detect any error in his Honour's approach. 33. Orders 34. I propose the following orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted. 3. Appeal dismissed. 1. R A Hulme J: I agree with Price J. 2. Davies J: I agree with Price J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2015