Lukasik v The King

[2023] NSWCCA 94

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lukasik v R [2023] NSWCCA 94

Hearing dates:

9 November 2022

Decision date:

28 April 2023

Before:

Button J at [1];
Fagan J at [72];
R A Hulme AJ at [73]

Decision:

1. Leave to appeal against sentence granted.

2. Appeal against sentence dismissed.

Catchwords:

CRIME — appeals — appeal against sentence –carjacking and other offences to do with motor vehicles – use of false document to obtain financial advantage by way of free use of rental car – assault with intent to take second motor vehicle – attempt to dishonestly obtain third motor vehicle by deception – whether sentencing judge made erroneous findings of fact – immaterial finding that a false credit card was used as opposed to false driver’s licence – clear benefit in the applicant having the use of dishonestly obtained vehicle for more than two weeks – interpretation by sentencing judge of the evidence regarding applicant’s motivation for the forcible taking of the vehicle open – whether error in finding that the offences were part of planned criminal activity – characterisation as “car re-birthing” open – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW) ss 154C(1)(a), 192E(1)(a), 254(b)(ii), 344A(1)

Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A

Evidence Act 1995 (NSW) s 144

Cases Cited:

R v Olbrich (1999) 199 CLR 270; [199] HCA 54

Category:

Principal judgment

Parties:

David Lukasik (Applicant)
Rex (Respondent)

Representation:

Counsel:
T Ramrakha (Applicant)
I Nash (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2021/59098; 2021/59109

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

12 April 2022

Before:

Judge King SC

File Number(s):

2021/00059098; 2021/00059109

Judgment

1. BUTTON J:

Background

On 12 May 2022, Judge King SC sentenced David Lukasik (the applicant) for three offences to which the applicant had pleaded guilty in the Local Court. The first was using a false document to obtain a financial advantage, contrary to s 254(b)(ii) of the Crimes Act 1900 (NSW). The second offence was assault with intent to take a motor vehicle, contrary to s 154C(1)(a) of the Crimes Act. The third offence was attempting to dishonestly obtain property by deception, contrary to s 192E(1)(a) and s 344A(1) of the Crimes Act.

2. All offences carried a maximum penalty of imprisonment for 10 years. There was also a 3-year standard non-parole period applicable to the second offence, the assault with intent to take a motor vehicle.

3. The learned sentencing judge imposed an aggregate head sentence of 3 years 6 months imprisonment, commencing on 3 March 2021, with a non-parole period of 2 years 6 months. An indicative sentence of imprisonment for 1 year was provided for the first offence; an indicative head sentence of 1 year 6 months for the second offence; and for the last offence, an indicative sentence of 2 years. The aggregate sentence was backdated to account for pre-sentence custody, and the date arrived at is not the subject of criticism. The earliest possible release date of the applicant is 2 September 2023.

4. The applicant now seeks leave to appeal against his sentence on three grounds.

Ground one: the sentencing judge made erroneous findings of fact when sentencing the applicant for the offence of use false documents to obtain advantage.

Ground two: the sentencing judge made erroneous findings of fact when sentencing the applicant for the offence of assault with intent to take motor vehicle.

Ground three: the sentencing judge erred in finding that the offences were each planned and therefore aggravated by s 21A(2)(n) and that the applicant was involved in re-birthing of vehicles.

Objective features

5. His Honour sentenced in accordance with a document entitled “proposed facts”, which was, in fact, signed by the applicant, seemingly on 30 August 2021. Remarkably, it extended over ten pages with regard to three reasonably straightforward offences. It was also difficult to follow, confusing, and patently incomplete in some respects. Having said that, it was placed before his Honour without objection, and its contents inform some of the grounds, so I shall discuss it in a little detail.

6. It commences by explaining that the applicant and a Mr Chapman had known each other for about 10 years. Mr Chapman was a tow truck driver, and the applicant worked in smash repairs. A Ms Ferro was in a romantic relationship with the applicant, and lived with him at an address in Matraville.

7. The second offence pertained to a white Range Rover. Mr Chapman had obtained it in late 2018; precisely how he had done so is not explained in the document. It had previously been registered to a company in Victoria that had defaulted on a loan to purchase the vehicle, with the result that debt collectors were called in. In early 2019, unsuccessful attempts were made to repossess the vehicle. Mr Chapman told Mr Hain, a debt collector, that the Range Rover was not in his possession, that it had been fraudulently transferred by another person into the name of someone else, and that the police were involved.

8. In June 2019, Mr Chapman reported the loss of the Range Rover as a fraud, and claimed that the actual loss was $130,000. He named the putative offender as “Jackson Pierce”. After that, Mr Chapman provided the police with two more statements setting out the details of the asserted fraudulent loss of the Range Rover. The police advised him not to take any steps to retrieve the vehicle if he located it.

9. Separately, regarding the first offence, on 18 August 2020, the applicant attended a car rental company. That company was in the practice of renting cars to people who had been in motor vehicle accidents that were not their fault, and who needed a car as a result. The cost of the car rental was to be ultimately recovered from the party that was at fault in the collision, or their insurer.

10. The applicant provided the false name of James Wise, provided a false driver’s licence in that name, and provided registration papers for an Audi that he asserted had been “rear-ended”. He also provided the name of the putative driver at fault, and a photograph of the driver’s licence of that alleged person on his phone. He also provided an insurance claim number. In fact, all of that was founded on a lie: there had been no such accident.

11. The result was that the applicant was provided with the use of a black E200 Mercedes-Benz for about two weeks. No money was available subsequently from any source, of course, to pay for it.

12. Returning to the Range Rover, at some stage a Mr Assad told police that he had owned it for about two years, and that it had been involved in a collision shortly before being stolen. On 19 August 2020, he asserted, he had sold it to yet another person. As of 20 August 2020, the Range Rover had ended up at a smash repair workshop, in that on that day a tow truck carrying the Range Rover arrived at the smash repairers.

13. Later that day, Mr Chapman, as part of his employment, dropped a vehicle off at the smash repair shop. There he saw the Range Rover parked outside. He took two photographs of it, and also “pinpointed” it on Google Maps. He transmitted all of that to the applicant.

14. CCTV showed the Mercedes-Benz (which had been hired by the applicant) and the tow truck of Mr Chapman driving towards the smash repairs. A little later, a worker was sitting in the driver’s seat of the Range Rover. The applicant opened the passenger door and sat in the vehicle. The worker explained that he, the worker, did not own the car. The applicant responded, “I don’t give a fuck whose car it is, get the fuck out of the car, it’s my car now.” The worker was afraid and jumped out of the car. He alerted another worker, and the police were contacted.

15. Later that day, Mr Chapman and the applicant were in contact to a significant degree.

16. The following day, the applicant took some photographs of the Range Rover, some handmade false number plates, and the Range Rover with those number plates affixed to it. Clearly enough, its provenance was promptly being disguised.

17. A few days later, Mr Chapman contacted the police officer in charge of the investigation of the earlier alleged fraudulent taking of the Range Rover, and asked for an update on the investigation, along with the details of the debt collection agency that was involved.

18. A few days after that, Mr Chapman made contact with Mr Hain, the debt collector. Mr Chapman said that the Range Rover had been sighted, but that the person who had done so wanted a “finder’s fee”. Mr Chapman provided Mr Hain with the mobile number of the applicant, and the name James (it is to be recalled that the applicant dishonestly obtained the use of the Mercedes by pretending to be a James Wise). Mr Hain spoke to the person who answered the phone, who said that he had seen the Range Rover being driven into the smash repair shop.

19. Separately, the Mercedes was returned to the car rental company on 2 September 2020, that being a little over two weeks since the applicant had dishonestly obtained it.

20. In short: the first offence was constituted by the applicant himself dishonestly obtaining the free use of a Mercedes-Benz for a little over two weeks. The second offence was constituted by the applicant himself taking, through the threat of force, the Range Rover to which he was not entitled.

21. But it can be seen that the two offences were intertwined, in that the Mercedes-Benz was used by the applicant and Mr Chapman to obtain the Range Rover. It can also be seen that, according to the agreed facts, Mr Chapman played a significant role in the preparation for the carjacking.

22. The third offence is more straightforward. On 24 November 2019, the owner of a black Porsche Cayenne parked it in a parking garage in Chippendale. He then travelled overseas. Due to the pandemic, the owner could not return to Australia, with the result that the registration of the Porsche lapsed.

23. During September 2020, the applicant and Ms Ferro took a number of steps to prepare for an incident that occurred on 3 October 2020 regarding the Porsche. Those steps do not need to be discussed in detail here, but they included opening a post office box, obtaining some false documents suggesting that they owned a Porsche Cayenne, and registering a business of a smash repairer. Clearly enough, the plan was to make it later appear that the applicant had a right to possession of the Porsche.

24. On 3 October 2020, the applicant entered the car park where the Porsche had been left, accompanied by an automotive locksmith. They succeeded in opening the driver’s door of the Porsche. A security guard was aware of the identity of the true owner, and approached the applicant. He falsely claimed that he had purchased the vehicle, and provided false documents to that effect. The true owner was alerted by the security guard, the scheme was thwarted, and the police were contacted. The applicant put forward the completely false claim that he had purchased the vehicle, but the owner was refusing to hand it over. When spoken to by police in person, he maintained his lies.

25. In short, then, the third count was an unsuccessful attempt to obtain dishonestly a valuable motor vehicle, that was founded on lies and false documents, and required quite a bit of preparation.

26. Eventually, the police recovered the Range Rover from the home of the applicant. Ultimately, both the applicant and Mr Chapman were arrested and interviewed. The details of what they had to say does not need to be analysed, except to note that the applicant was not admitting his guilt at that stage.

Subjective features

27. Because they are not the subject of any ground, the findings made by his Honour about subjective matters can be traversed briefly.

28. The applicant was 31 years of age when sentenced, having been born in June 1991.

29. He possessed considerable criminal antecedents, which commenced in 2015. Most serious was that he had been convicted of supplying a large commercial quantity of a prohibited drug, for which he had received a head sentence of imprisonment for 4 years 6 months. He had also been placed on an intensive correction order in late 2021 for an offence of being armed with intent to commit an indictable offence. He had also committed other offences against property, most of which had been “rolled into” the outcome of the intensive correction order.

30. Previous offending showed an ongoing unlawful focus on luxury cars on the part of the applicant.

31. A psychological report recounted that the applicant had been born in Poland. He grew up in the eastern suburbs of Sydney, primarily raised by his grandmother and thereafter his father. At around the same time as the death of his father, the applicant, then about 18 years old, commenced to use prohibited drugs. That was connected to him suffering from depression, anxiety, and some aspects of post-traumatic stress disorder, those psychological conditions in turn connected with his claim that he had been sexually abused at school.

32. The psychologist referred to the use of prohibited drugs as “self-medication”. The applicant has been abusing “ice” since the age of 23. By the time of the offences in question, he was a significant user of that notoriously damaging substance. Eventually, he turned to alcohol and prohibited depressants in an effort to control the effects of the stimulant. Whilst on parole in the past, he had taken active steps to try to get help with his drug issues.

33. Since leaving school, the applicant had basically been unemployed, never married, and had no children. The romantic relationship that I referred to in the context of the offences had broken down by the time of sentence.

34. The sentencing judge adopted a cautious approach to the question of remorse.

35. A similarly cautious approach was adopted to the question of prospects of rehabilitation, not least because of the inability of the applicant to refrain from abusing prohibited drugs. The ultimate finding was that the prospects of rehabilitation must be “guarded”.

36. The effect of the pandemic upon persons in custody in general and the applicant in particular was noted, and taken into account.

37. The sentencing judge refused to find that any aspect of the upbringing of the applicant significantly reduced his moral culpability for the offences. In that regard, the finding was that the offences “appeared to be well-planned by a well-practised offender in conjunction with others”.

38. Effect was given to both specific and general deterrence, and the cost to the community of the offences under consideration was emphasised.

Ground One: the sentencing judge made erroneous findings of fact when sentencing the applicant for the offence of use of false documents to obtain advantage.

39. This ground is based on two separate statements made by the sentencing judge in the remarks on sentence.

40. His Honour stated that the first offence, using a false document to obtain a financial benefit, involved the use of, amongst other documents, “a fake credit card”. His Honour also stated that the applicant derived a financial benefit from the 16 days of use of the luxury vehicle that was “unlikely to be anything less than $1,000 and perhaps unlikely that it was more than $2,000 for that period.”.

41. In relation to this ground, the applicant submitted in writing that the sentencing judge made the following two incorrect factual findings:

1. The sentencing judge incorrectly stated that the offence involved the use of a fake credit card, which was not in the proposed facts signed by the applicant.

2. Separately, the estimated quantum of the benefit of having the use of the Mercedes-Benz for more than two weeks lacked an evidentiary basis. The applicant submitted that there was no monetary financial benefit derived by the applicant, and that the only reasonable benefit that could be found on the facts was the use of the vehicle for 16 days without charge.

42. During oral submissions, the applicant conceded that this ground of appeal is minor; he maintained however that that the use of credit card was a “fact, among a small number of other facts” that fed into to the assessment of objective seriousness.

43. Turning to my determination, it is true that a false credit card was not used to obtain the use of the Mercedes-Benz for two weeks. As I have shown, what was actually used was a false driver’s licence, along with many other well-prepared false documents. In my respectful opinion, the slip is immaterial, and therefore does not constitute an error of fact that would lead to intervention by this Court.

44. As for the second part of the ground, as the result of his well-prepared and targeted dishonesty, the applicant had the free use of a Mercedes-Benz for more than two weeks. That was surely a benefit, and a not insignificant one, for which honest people pay a substantial sum. The rules of evidence are by default not engaged in proceedings on sentence; even if they had been, the sentencing judge would surely have been entitled to take judicial notice generally of the daily rate to rent a Mercedes-Benz in Sydney in 2022, if needs be pursuant to s 144 of the Evidence Act 1995 (NSW).

45. Respectfully, the finding that the value of the use of the vehicle was unlikely to have been “anything less than $1000, and perhaps unlikely that it was more than $2000 for that period” was generous to the applicant.

46. I would not uphold either aspect of this ground.

Ground Two: the sentencing judge made erroneous findings of fact when sentencing the applicant for the offence of assault with intent to take motor vehicle.

47. The background to this ground is as follows. In the remarks on sentence about the dealings with the Range Rover before and after its taking, including the leasing arrangement and the previous attempts to repossess the vehicle that was ultimately taken by way of the threat of force, his Honour said the following:

“I note that from the full facts, it appears that what was of concern was that the vehicle had been the subject of a leasing agreement and the payments had fallen behind. The financing company had sought to obtain the vehicle and it had been on-sold by someone in the intervening period, which was a substantial period of time. The vehicle concerned was a Range Rover, while originally new it was no doubt still of significant value as a second-hand vehicle. I interpret that the purpose of taking the vehicle at the time was in order to prevent it being located and returned to the original financing company and/or to ensure that the trail of dealing with it was not brought home to any particular person, it having passed through the hands of several people in the meantime.”

48. The written submissions for the applicant asserted that the factual findings were not open on the facts “as they applied to the applicant”. It was argued that this finding “effectively cast the applicant’s offending within a much more sophisticated car re-birthing enterprise”. This was supported by the fact that there was no evidence that the offender knew about the leasing arrangements or the previous attempts to repossess the vehicle.

49. During oral submissions, it was argued that the sentencing judge characterised the applicant’s offending by reference to Mr Chapman’s offending which “elevated the seriousness”.

50. The applicant did, however, concede orally that the sentencing judge did not draw an inference as to the applicant’s knowing involvement in a more sophisticated criminal enterprise.

51. Determining this ground, the document containing facts signed by the applicant, as I have shown, went far beyond a simple assertion that he had suddenly entered a vehicle without the right to do so, threatened the driver, and driven off with that vehicle without permission. If it had been the position of the applicant at first instance that the whole history of the Range Rover had nothing to do with him or his proceedings on sentence, one would have expected all of that material to have been the subject of firm objection. In fact, whilst the applicant was represented by counsel at first instance, by consent far more detail about the “back story” of the Range Rover was included and placed in evidence. As I have said, one is entitled to infer that that material was concededly in the facts document as relevant to the applicant.

48. The first three sentences of the impugned passage extracted above simply recount what was contained in the facts document. As for the final sentence, I believe that the interpretation that the sentencing judge placed upon the motivation for the forcible taking of the Range Rover was well open, on all of the evidence placed before his Honour, not least because of the photographs on the phone of the applicant showing the attachment to it of false number plates shortly thereafter.

49. I would not uphold this ground.

Ground Three: the sentencing judge erred in finding that the offences were each planned and therefore aggravated by s 21A(2)(n) and that the applicant was involved in re-birthing of vehicles

54. This ground is based on the following portions of the remarks on sentence:

“In relation to each of the offences, I find they were planned in advance, and that is an aggravating feature under s 21A(2)(n): in general, the offender's participation in the offences, which were in themselves relatively sophisticated, involved some other matters - what might be regarded as, in effect, the re birthing of vehicles.”

55. That subparagraph of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is as follows:

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

(n)  the offence was part of a planned or organised criminal activity

56. The written submissions for the applicant argued that it was not open to the sentencing judge to find that s 21A(2)(n) applied to the first offence, using a false document to obtain a financial advantage. The applicant asserted that the only planning undertaken (that is, using a falsified driver’s licence and a false name) did not go beyond the elements of the offence.

57. The applicant conceded that there was a degree of planning in relation to the second offence, assault with intent to take motor vehicle, however maintained that the level of planning did not exceed the level of planning that might ordinarily be expected. It was submitted that the only planning was the prior notification by Mr Chapman about the location of the vehicle.

58. During oral submissions, the applicant conceded that the third offence, attempting to dishonestly obtain property by deception in the form of the Porsche, was planned.

59. In addition, as I have shown the phrase “what might be regarded as, in effect, the re-birthing of vehicles” was used in the remarks on sentence. The applicant asserted that this erroneously suggested that the three offences formed part of a single criminal enterprise of car-rebirthing, which is a more serious offence than those for which the applicant was to be sentenced, and which carries a maximum penalty of imprisonment for 14 years and a standard non-parole period of 4 years, by way of s 154G of the Crimes Act. It was argued that the use of this phrase by the sentencing judge was intentional and consequential, rather than colloquial.

60. Turning first to my determination of the second aspect of the ground, the question of “in effect, car re birthing”, the “proposed facts” signed by the applicant were, as I have said, unusually detailed, lengthy, sometimes obviously incomplete, and confusing. But they were placed before the sentencing judge without objection, and one can infer that there was a purpose to them; not least, first, how the first two offences fitted together, and secondly how Mr Chapman, a tow truck driver, and the applicant, a smash repairer, had worked together in the commission of the second offence.

61. Having had the facts placed before him by consent, his Honour was entitled to draw such inferences from them as he saw fit (subject of course to the well-known onuses and standards of proof on sentence discussed in R v Olbrich (1999) 199 CLR 270 at 280-282; [1999] HCA 54).

62. As for the Mercedes, it is true that it was returned to the car rental office unscathed. But it was undoubtedly used to effect the second offence.

63. Separately, the facts document went into quite some detail as to the fate of the Range Rover after it was taken by the threat of force, including of course the affixing to it of false number plates, the fact that photographs of that process were found on the mobile phone of the applicant, and the provision of various false and obfuscating stories about its provenance.

64. Finally, the attempt to take the Porsche Cayenne was no spontaneous crime; quite the contrary. The efforts that had been made in the weeks leading up to its attempted taking in order to show that the applicant was entitled to it demonstrated that what was intended must have been a significant ultimate profit from the offence that would justify the time, money, and effort expended in those preparations.

65. Reflecting on the similar subject matter of the three offences; the interrelationship between the first and second offences; what was done with the Range Rover before and after it was taken; and the long-standing personal relationship and occupations of the applicant and Mr Chapman, in my respectful opinion it was well open to find, speaking generally, that the applicant was engaged in “in effect, the re-birthing of vehicles”.

66. Finally on this point, in my opinion the sentencing judge was speaking of his assessment of the offending as a whole, and not presuming to sentence the applicant for an offence greater than those to which he had pleaded guilty.

67. Turning now to the first part of the ground, planning certainly went into obtaining the Mercedes-Benz, as evidenced by the various false documents and dishonest stories that needed to be prepared, and the targeting of the particular car rental business that would be vulnerable to such material. That planning, in my opinion, went well beyond any planning that might be part and parcel of such an offence.

68. In similar vein, the taking of the Range Rover was planned, as evidenced by Mr Chapman, after locating it, alerting the applicant as to its location and appearance, and the two of them attending in their respective vehicles. Again, that working together of two persons to target a particular vehicle particularly sought, went well beyond a spontaneous carjacking.

69. Finally, the attempt to take the Porsche was unquestionably well-planned. Yet again the level of planning went well beyond the elements, or any other inherent characteristic, of the offence in question.

70. I would not uphold either aspect of this ground.

Proposed orders

71. For the above reasons, I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal against sentence dismissed.

72. FAGAN J: I agree with Button J.

73. R A HULME AJ: I agree that each of the three grounds of appeal lack merit for the reasons provided by Button J.  I agree with the orders his Honour proposes.

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Decision last updated: 28 April 2023