R v Lukasik

[2022] NSWDC 745

District Court

New South Wales

Medium Neutral Citation:

R v Lukasik [2022] NSWDC 745

Hearing dates:

11 April 2022

Decision date:

12 April 2022

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

Special circumstances found to re-establish the statutory ratio between parole and non-parole periods.

Indicative sentences of imprisonment:

2021/00059098/002 – 1 year

2021/00059098/003 – 18 months

2021/00059109/001 – 2 years

Aggregate sentence:

Sentenced to a term of imprisonment of 3 years and 6 months comprising a NPP of 2 years and 6 months to commence on 3 March 2021 and expiring on 2 September 2023 and a balance of term of 1 year commencing on 3 September 2023 and expiring on 2 September 2024.

Catchwords:

CRIMINAL - Sentence - carjacking - other offences to do with motor vehicles – use of false document to obtain financial advantage by way of free use of luxury rental car – assault with intent to take second motor vehicle – attempt to dishonestly obtain third motor vehicle by deception –objective seriousness – sophistication of offences - prior criminal record indicating a disentitlement to leniency rather than an aggravating factor – subjective matters

Legislation Cited:

Crimes Act 1900

Cases Cited:

Bugmy v the Queen [2013] 249 CLR 571

Category:

Sentence

Parties:

Regina
Lukasik, David

Representation:

Counsel:
Def: Mr H Maarraoui
Solicitors:
ODPP: Ms C Ervin

File Number(s):

2021/00059098
2021/00059109

JUDGMENT

1. HIS HONOUR: David Lukasik appears for sentence in respect of three offences being:

1. use false document to obtain financial advantage contrary to s 254(b)(ii) of the Crimes Act;

2. assault with intent to take motor vehicle contrary to s 154C(1)(a) of the Crimes Act; and

3. attempt to dishonestly obtain property by deception contrary to s 192E(1)(a)/s 344A(1).

2. In respect of each of those offences the maximum penalty provided by the legislation is ten years' imprisonment and there is no relevant standard non-parole period.

3. The offender, having been arrested on 2 March 2021, was committed for sentence on 23 December 2021 in the Central Local Court. Accordingly, he is entitled to 25% discount for the plea, and such a discount will be provided.

4. There are some ten pages of proposed facts provided by the Crown which do not appear to be disputed by the defence. They are convoluted and highly detailed, confusing, and difficult to follow. I do not intend to waste the next hour reading onto the record ten pages in small print. I will simply refer to the offences according to the summary given by the Crown in the Crown's written submissions.

5. As to the first offence of use false document to obtain advantage, it involved the offender using falsified claim documents, a false driver's license, and a fake credit card to obtain the free use of a luxury motor vehicle, being a Mercedes Benz. He obtained use of the vehicle for a period of 16 days during which time he also committed a number of traffic offences. He obtained the vehicle by alleging that he had been involved in an accident and was entitled to a replacement vehicle as a result of insurance, when in fact that was false, and he did so in the name of “James Wise”, which was obviously not his name.

6. There is no evidence as to the financial benefit from the use of a Mercedes Benz motor vehicle for a period of 16 days. However, it is unlikely that it was anything less than $1,000, and perhaps unlikely that it was more than $2,000 for that period. The provider of the motor vehicle would not have been paid by any insurance company in relation to providing the vehicle because there had been no accident, and was accordingly out of pocket simply to afford the offender the convenience of having a luxury motor vehicle to drive around in. The Crown's submission is that the offending falls just below the mid-range. The submission made by Mr Maarraoui on behalf of the offender is that it falls well below the mid-range. In my view it does fall below the mid-range, and I would not refer to it as being just below. It is, however, not in the lowest end of the range of objective seriousness.

7. As to the second count, assault with intent to take motor vehicle, that involved the offender attending the location of a vehicle he intended to take, waiting for a victim to get into the vehicle and then assaulting the victim by way of threats so that he could then take the vehicle. The offender then drove the vehicle to his residence, where he put fake handmade number plates on it so that it would remain undetected as the stolen vehicle. While the assault did not involve the use of physical force or violence, it would have been very confronting for the victim, who was simply trying to go about his job, moving the vehicle into the security of the smash repair building where it had been left for repair. The Crown refers to the seriousness of that offence as falling below the mid-range, and I accept that it is just below the mid-range.

8. 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.

9. The third offence related to an attempt to obtain property by deception. This involved the offender and his female partner and co‑accused, Dominique Ferrer, taking a series of steps to create a paper trail to create an illusion of legitimacy if he was challenged while attempting to obtain yet another luxury vehicle, this time a Porsche Cayenne SUV. He not only proffered the paperwork while attempting to take the vehicle physically, but also went as far as to make a report to police that he was the lawful owner of the vehicle in the attempt to secure it. It was only by virtue of the battery having failed, and the efforts of a security guard who was familiar with the owner and where the car was parked, that he was unable to obtain it. In my view, this offending falls at the mid-range of objective seriousness.

10. While the offender has a significant prior criminal record, it is such as to disentitle him to leniency rather than an aggravating factor under s 21A(2)(d). A number of offences that he has previously been sentenced for were in fact committed before the offences for which he stands to be sentenced today, but he was not convicted in respect of those offences until after his arrest on the current matters. 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.

SUBJECTIVE MATTERS

11. Before the Court is the offender's criminal history, a New South Wales Corrective Services’ Conviction Sentence and Appeals Report, two reports tendered on behalf of the offender from Mr Watson‑Munro, the first dated 10 August 2021, which was prepared not for these matters but for the matters I previously referred to that he has already been sentenced for, that sentence being an Intensive Correction Order as the aggregate sentence. The second report is dated 4 April 2022 and adopts the content of the first report. In addition, there is a letter from Shine Lawyers, dated 3 November 2021, from Karen Spitz, lead counsellor, simply indicating that they are intending to provide ongoing support to the offender while in custody and while they determine whether he has any claim in respect of a sexual abuse allegation.

12. The offender is now 31 years of age and this offending occurred between 18 August 2020 and 2 September 2020, and further on 3 October 2020. He was arrested on 3 December 2020 on the unrelated matters I have previously referred to and in respect of those he was sentenced to an aggregate term of imprisonment of one year and nine months, to date from 11 August 2021, to be served by way of an Intensive Correction Order. In respect of those matters, he was bail refused solely referrable to those matters for a period of three months before being charged with the current matters while in custody. His total period of time in custody is accordingly one year, four months and nine days, of which one year, one month and ten days is solely referrable to the current matter.

13. Leaving aside driving offences, the offender's criminal history includes offences such as supply prohibited drug, large commercial quantity, in respect of which in 2016 he received a sentence of imprisonment of four years, six months with a non-parole period of three years. He was also dealt with at the same time for an offence of knowingly deal with the proceeds of crime, which was taken into account on a Form 1. He was also dealt with in 2021 for the offence of armed with intent to commit an indictable offence in respect of which, as an aggregate sentence, he received a sentence of one year, nine months and three weeks to be served by way of an Intensive Correction Order. That is the matter I previously referred to.

14. There is also an offence of larceny to a value of less than $2,000, as part of that aggregate sentence; and an offence of goods in personal custody suspected of being stolen, as well as steal motor vehicle, dispose of vessel/part, theft, serious indictable offence, dishonestly obtain financial advantage by deception. In addition, in 2015 he received a fine in respect of an offence of possess prohibited drug which he appealed to the District Court and received a s 10 bond. There were further offences of steal motor vehicle and dishonestly obtaining property by deception which were taken into account in the aggregate sentence that I previously referred to, and a further offence of custody of a knife in a public place, the first offence also taken into account as part of the aggregate sentence; and again, goods in personal custody suspected of being stolen.

15. His custodial record indicates that he first commenced a sentence on 7 March 2015 and was released on parole on 5 March 2018. That has been referred to, he has again been in custody as a result of this and other matters since 3 December 2020. I note that while in custody, he has managed to be almost entirely compliant with prison regulations.

16. The offences concerned here demonstrate that he has a penchant for luxury motor vehicles, either using them or perhaps intending to profit from them. In addition, the Crown bundle contains the fact sheets in relation to some of the offences to which I have referred, being the subject of the Intensive Correction Order. They underline the fact that the offender has been interested in luxury motor vehicles and involved in relatively similar offending to what is the subject of the three charges before me today.

17. He has at times been so blasé about these offences that when approached by the police, he gives them a false story of having entered into an agreement with the actual owner of the vehicle to purchase it and maintains the false story until it becomes impossible to do so. As I said, there is a level of sophistication in relation to the offending overall.

18. I note that in Mr Watson‑Munro's report of 10 August 2021, he provides some background of the offender. The offender did not give evidence on sentence and so the only material in relation to his background is those self-serving statements that he has made to Mr Watson‑Munro. However, as to his general background, I am prepared to accept that material.

19. He was born in Poland in 1991. His father migrated to Australia before his mother, and his mother later joined him here in Australia and they reconciled. The offender came to Australia prior to his mother. His father was a builder and his mother studied to become a dental technician. Because of some issues in his parents' marriage, he was primarily raised by his grandmother for a time and then by his father. He attended Woollahra Primary School and then eventually Rose Bay High School. His father died when he was approximately 18 years of age, and at about that time, he commenced using drugs and is said to have been suffering from escalating symptoms of depression and anxiety and some features of PTSD arising from his claim of sexual abuse when at school, of being abused by a mathematics teacher.

20. Mr Watson‑Munro refers to his use of drugs as self-medication.

21. After leaving school, he attempted a carpentry course at TAFE but failed to complete it, he has essentially been unemployed since that time with the exception of having learnt something about aspects of panel beating. He has never married, and he has no children. Although he was in a relationship at the time of Mr Watson‑Munro's first report, the relationship was with the partner who was a co‑offender in relation to the third count that I am dealing with, and the relationship has broken down. He indicated to Mr Watson‑Munro that he had not wanted to go to school at all, but however managed to complete Year 12 without obtaining his HSC score due to attendance issues because of his avoidance of school.

22. Since the death of his father and his turning to the use of prohibited drugs, his primary drug became “ice” at the age of 23, and he was consuming it at significant levels and suffering from one of the usual sequelae that users of that drug have: that is, paranoia, which became so high that he would stay locked in his garage battling auditory hallucinations and hearing helicopters. He dealt with these by turning to another prohibited drug, Gamma‑hydroxybutyrate, or GHB, to reduce his anxiety, as well as alcohol. He is said to have overdosed on two occasions. He said that his drug use had continued during his earlier sentence but then ceased while he was on parole, before then resuming. He stated that he was drug-affected for most of 2020. There is no evidence that he was drug-affected at the time of any of these particular offences and the report does not suggest that he was.

23. While on parole, he is said to have attended a drug counsellor on a fortnightly basis for some four to six months. I note there was no report from any drug counsellor as to any such attendances or to report on his progress, which would have been useful and would have only required a simple inquiry and letter. He said that he experienced pain from a damaged rotator cuff in his right shoulder, and that he needed analgesics.

24. Mr Watson‑Munro found that he suffered from a depressive disorder and suffered from escalating agitation and irritability as his sentence hearing approaches, that is, his original sentence hearing in which he received the Intensive Correction Order. In that report, as is typical of Mr Watson‑Munro's reports, he stated, "At examination, he expressed appropriate remorse for his behaviour." As is usually the case in respect of Mr Watson‑Munro's reports, he did not state how he expressed that behaviour, and the offender has not given evidence on sentence in this court so that his remorse can be assessed by the Court itself. In the most recent report, prepared for the purpose of these proceedings rather than the last sentence proceedings, Mr Watson‑Munro again referred to, "At examination he expressed appropriate remorse for his past behaviour adding, “I am 100% sorry for what I have done."

25. I am sure that the offender regrets having been detected, arrested and charged with these offences, but the fact that he has pleaded guilty is not in itself an indication of remorse or contrition, particularly in the circumstances where the lengthy facts provided by the Crown indicate a very strong Crown case, and I do not accept that the phrase, "100% sorry for what I have done", necessarily reflects on him being sorry for the impact of his offending on the community and the various victims, in the absence of evidence on oath that could have been tested. Mr Watson‑Munro summarised his earlier report by saying:

"At that time, I noted a complex medical history characterised by longstanding symptoms of depression, anxiety, low self-esteem and an overarching substance abuse disorder referrable primarily to crystal methyl amphetamine. I suggested there was a strong nexus between his untreated symptoms of drug use and offending behaviour, noting in particular that he was suffering from a severe and recurring depressive disorder. I suggested that Mr Lukasik required treatment, whatever the outcome of his pending sentence hearing. I further noted unresolved issues referrable to alleged sexual abuse during his formative years at the hands of a mathematics teacher and attended to those episodes, ongoing and strong emotional consequences continuing to the present. I further noted a prior forensic history."

26. He also referred to the reporting of prior psychotic breaks referrable to the use of “ice”. Depression, anxiety, low self-esteem and indeed, even psychotic breaks are common sequelae to the use of prohibited drugs, and particularly the use of “ice”. That is always exacerbated by the fact of having been detected and charged with committing criminal offences which might inevitably lead to prison sentences. That does nothing other than increase the level of anxiety, depression, and indeed also generally lower self-esteem.

27. I note the offender has been in custody throughout, in effect, the time of COVID in the community, and that that has placed significant restrictions on the prison system in terms of the ability of offenders to confer with their lawyers or to have visits from relatives or friends. I note that the offender has referred to having some 104 days in isolation as a result of COVID. I am uncertain from the report whether that is 104 days isolated by himself in a cell or isolated with another in a cell. He claims to have been substance-free since 3 December 2020 and there is nothing in his prison record which would suggest that is incorrect. He has also reported that he has undertaken a drug and alcohol program while at the John Morony Centre, and I have no reason to disbelieve that.

28. I have already referred to remorse and contrition. In my view there is no acceptable evidence of genuine remorse or contrition, even though there may be some element of remorse and contrition. As to a re‑offending, there is no assessment before me as to the likelihood of re‑offending as a Community Corrections Report was obviously not sought in this matter, although it would have been helpful. Mr Watson‑Munro provides no estimate as to the risk of re‑offending. He has previous serious criminal matters recorded on his record including, in particular, the first commercial drug matter.

29. It has been conceded by Mr Maarraoui on behalf of the offender that his past history in relation to his upbringing in Poland and in Australia does not make this matter fall within the principles of Bugmy v the Queen [2013] 249 CLR 571. Although they do not fall within the principles set out in Bugmy; they are however no doubt nonetheless still relevant to the assessment of sentence and will be taken into account. I am however unable to find that there is any basis on which to significantly reduce his moral culpability for these offences, particularly in circumstances where they appear to be well planned by a well-practised offender in conjunction with others. And of course, the fact that he turned back to drugs, having been released from his first period of imprisonment, does not argue well for rehabilitation, even though he now claims to have been free of drugs since 3 December 2020.

26. In my view it is important in this matter that the Court take into account the need for both specific deterrence and general deterrence. The theft of motor vehicles and improper dealing with them comes at a considerable cost to the community, not just to the owners of the motor vehicles but to the insurance companies, and accordingly, to the general public, who have to then pay inflated insurance fees in order to cover the insurance company's losses so that they can still remain profitable. Each of the offences committed is of a different nature, although related to motor vehicles, and in my view, there is room for some degree of concurrency between the charges taking into account the principle of totality. However, there must be some accumulation, as they involve discrete acts of criminality on different occasions.

27. As to the prospect of rehabilitation, all I can say on the evidence before me is that it must be guarded, and I am unable to make any favourable finding in regard to the likelihood of re‑offending. That is not to say that he is not capable of being rehabilitated or that he will re‑offend in the future, but the evidence before me is of an extremely limited nature. Clearly in this matter, the s 5 threshold has been crossed, and so much has been accepted by Mr Maarraoui on his behalf. I take all of those matters into consideration in determining the sentence. I propose to proceed by way of an aggregate sentence, and accordingly, I am required to indicate an indicative sentence in relation to each of the individual charges.

28. In respect of the first offence of use false documents to obtain a financial advantage contrary to s 254(b)(ii) the indicative sentence is one year's imprisonment. In relation to the second offence of assault with intent to take a motor vehicle contrary to s 154C(1)(a) the indicative sentence is 18 months' imprisonment. And in relation to the third and last offence of attempt to dishonestly obtain property by deception contrary to s 192E(1)(a)/s 344A, the indicative sentence is two years' imprisonment.

29. I note that of the time so far spent in custody from 3 December 2020, the first three months of that sentence was prior to him being charged with the current matters, and he was in custody solely referrable to those matters before being sentenced to the Intensive Correction Order of one year, nine months. He has been in custody for a total period of one year, four months and nine days, of which one year, one month and ten days are solely referrable to the current matter, three months being referrable in my view to the earlier matters, and which would have been taken into account when the Intensive Corrections Order was imposed. Accordingly, I intend to commence the aggregate sentence to take account of those three months from 3 March 2021.

30. The sentence will be a sentence of imprisonment of three years, and six months. The non-parole period will be two years and six months, commencing on 3 March 2021. He will then accordingly be first eligible for parole on 2 September 2023. The balance of term is one year, and the total term of the sentence of three years, six months, will expire on 2 December 2024. I have slightly reduced the statutory relationship between the non-parole period and the balance of term to account for the additional three months of time in custody before the commencement of this sentence. I have otherwise not found special circumstances.

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Decision last updated: 16 June 2023