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Court of Criminal Appeal 22 July 2015

Stepanovic v R

[2015] NSWCCA 191

Fraud & dishonestyTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE CREDIT CARD FRAUD JOINT CRIMINAL ENTERPRISE AGGREGATE SENTENCE.

Citation: Stepanovic v R [2015] NSWCCA 191
Court: Court of Criminal Appeal, NSW
Date: 22 July 2015
Judge(s): Price J (with R A Hulme J and Davies J agreeing)

Background

The appellant was convicted in the District Court on four counts arising from events on 28 March 2012. The first count was breaking and entering a dwelling at Glebe with aggravating circumstances, involving the theft of a briefcase containing credit cards, cash, and personal items. The remaining three counts were fraud charges under s 192E(1)(a) of the Crimes Act 1900 (NSW), relating to the use of the stolen credit cards at three separate Sydney retailers on the same day.

The prosecution case rested heavily on the evidence of a co-accused, who had pleaded guilty to her role in the break-in. She gave evidence that the appellant organised the burglary, directed her to use the stolen credit cards at each location, and retained the cash found in the briefcase. CCTV footage captured the co-accused, not the appellant, physically using the cards at each retailer.

The appellant, who was unrepresented before the Court of Criminal Appeal, argued that because he was not the person shown on CCTV using the cards, he should not have been convicted of the fraud counts. He also sought a modest sentence reduction, and challenged the imposition of an aggregate sentence rather than separate sentences for each count.

  • Whether the jury's guilty verdicts on the three fraud counts were unreasonable or unsupported by the evidence, given that the appellant did not physically use the credit cards.
  • Whether the trial judge's directions to the jury on the doctrine of joint criminal enterprise were adequate.
  • Whether the sentencing judge erred in imposing an aggregate sentence under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) rather than separate sentences for each offence.

Decision

On the conviction appeal, Price J applied the well-established test from M v The Queen (1994): whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The prosecution relied on the doctrine of joint criminal enterprise, which holds that all participants in an agreed criminal scheme are equally guilty of offences committed in furtherance of that scheme, regardless of their individual role.

The Court found the Crown case was overwhelming. The co-accused's evidence established that the appellant recruited her to assist with the burglary, directed her to use the stolen cards, and shared in the proceeds. The jury was entitled to accept that evidence, and the fact that the appellant himself did not physically present the cards at each shop did not prevent a conviction under joint criminal enterprise principles.

On the jury directions, Price J found that the trial judge had given careful and accurate directions on joint criminal enterprise, correctly explaining that the agreement need not be express and may be inferred from surrounding circumstances. No error was identified in those directions.

On sentence, the Court noted that the appellant's primary complaint was effectively a repetition of his conviction appeal. As to the aggregate sentence, s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 expressly permits a court to impose a single aggregate sentence for multiple offences, provided it records indicative sentences for each. The sentencing judge had done precisely that, and no error was found in the approach.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • Under the doctrine of joint criminal enterprise, a person who organises and participates in a criminal scheme is equally guilty of offences carried out by a co-participant in furtherance of that scheme, even if they were not physically present at or did not personally execute each criminal act.
  • The Court of Criminal Appeal confirmed that the appropriate appellate question on an unreasonable verdict ground is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt, consistent with M v The Queen and SKA v The Queen.
  • In dismissing the conviction appeal, the Court accepted that a co-accused's testimony, corroborated by CCTV and other evidence, can form a sufficient basis for a jury to convict under joint criminal enterprise principles.
  • Section 53A(1) of the Crimes (Sentencing Procedure) Act 1999 permits aggregate sentencing for multiple offences, provided the sentencing court records an indicative sentence for each individual offence pursuant to s 53A(2)(b). No error arises merely because a single aggregate term was imposed rather than separate sentences.
  • No error was established in the trial judge's joint criminal enterprise directions, which correctly identified that the relevant agreement need not be express and may be inferred from all surrounding facts and circumstances.

Legislation and Cases Referenced

Legislation:
- 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:
- 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