Citation: R v Lukasik [2022] NSWDC 745
Court: District Court of New South Wales
Date: 12 April 2022
Judge(s): King SC DCJ
Background
The offender, a 31-year-old man, appeared for sentencing on three separate offences committed between August and October 2020. The offences each involved the dishonest acquisition or attempted acquisition of motor vehicles and were described by the court as relatively sophisticated in their planning and execution.
The first offence involved using a false identity, a falsified driver's licence, and a fake credit card to obtain a Mercedes-Benz from a rental company for 16 days without payment. The second was a carjacking-style assault, where the offender threatened a victim at a smash repair facility in order to take a Range Rover, which he then disguised with handmade false number plates. The third involved an elaborate attempt, with a co-accused, to steal a Porsche Cayenne SUV by creating fraudulent paperwork and making a false report to police to bolster a fabricated claim of ownership.
The offender had a significant prior criminal history, including a 2016 sentence of four years and six months for drug supply and a 2021 Intensive Correction Order for related dishonesty offences. He had been in custody for a total of one year, four months, and nine days at the time of sentencing, of which just over one year and one month was referable solely to the current matters.
Legal Issues
- The appropriate objective seriousness of each of the three offences
- Whether the offender's prior criminal record constituted an aggravating factor or merely disentitled him to leniency
- Whether the offences were planned in advance, as an aggravating factor under s 21A(2)(n) of the Crimes Act 1900
- The applicable subjective considerations, including time in custody, psychological reports, and prospects of rehabilitation
- How to calculate the aggregate sentence and non-parole period, including credit for pre-sentence custody and the 25% plea discount
Decision
King SC DCJ assessed each offence's objective seriousness individually. The false document offence (the Mercedes-Benz fraud) was placed below mid-range but not at the lowest end. The assault with intent to take a motor vehicle (the Range Rover carjacking) was assessed as just below the mid-range, with the court noting that although no physical force was used, the confrontation would have been distressing for the victim. The attempted Porsche theft, which involved fabricated paperwork and a false police report, was assessed at the mid-range of objective seriousness.
The court found that all three offences were planned in advance, treating that as an aggravating feature under s 21A(2)(n) of the Crimes Act. The offender's extensive criminal history was held to disentitle him to leniency rather than operating as a standalone aggravating factor under s 21A(2)(d). The court noted that some of the prior offending had technically been committed before the current matters but was not sentenced until afterwards.
On subjective matters, the court considered two psychological reports from Mr Watson-Munro and a letter from a legal firm indicating potential claims relating to historical sexual abuse. The court observed that evidence of rehabilitation prospects was limited but did not foreclose the possibility. It accepted that the s 5 threshold for imprisonment had been crossed, a concession made by defence counsel.
The court applied a 25% discount for the early plea, commencing the aggregate sentence from 3 March 2021 to account for pre-sentence custody. An indicative sentence was set for each charge before arriving at the aggregate, and the statutory non-parole period ratio was slightly adjusted to account for the three months of pre-sentence custody attributable to the earlier unrelated matters.
Orders Made
- Indicative sentence for use of false document to obtain financial advantage (count 1): 1 year's imprisonment
- Indicative sentence for assault with intent to take a motor vehicle (count 2): 18 months' imprisonment
- Indicative sentence for attempt to dishonestly obtain property by deception (count 3): 2 years' imprisonment
- Aggregate sentence: 3 years and 6 months' imprisonment
- Non-parole period: 2 years and 6 months, commencing 3 March 2021
- First eligible for parole: 2 September 2023
- Total sentence to expire: 2 December 2024
Key Takeaways
- A prior criminal record that is extensive but does not precisely mirror the offences charged may disentitle an offender to leniency without necessarily constituting a formal aggravating factor under s 21A(2)(d) of the Crimes Act 1900.
- Planning and premeditation across all three offences was treated as a distinct aggravating feature under s 21A(2)(n), even where the individual acts varied in their level of sophistication.
- The District Court placed significant weight on the sophistication and multi-step nature of the schemes, particularly the third offence, which involved manufactured paperwork and a false police report to create a veneer of legitimacy.
- Where an offender has served pre-sentence custody partly referable to unrelated matters already accounted for in a prior sentence, the sentencing court may adjust the commencement date and non-parole period to avoid double-counting that period.
- In Bugmy v The Queen (2013) 249 CLR 571, the High Court addressed the relevance of background and personal circumstances to sentencing, a principle the court had regard to in evaluating the offender's subjective case here.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 154C(1)(a), 192E(1)(a), 254(b)(ii), 344A(1), s 21A(2)(d), s 21A(2)(n), s 5
Cases:
- Bugmy v The Queen [2013] 249 CLR 571