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Court of Criminal Appeal 28 April 2023

Lukasik v R

[2023] NSWCCA 94

Assault & violenceFraud & dishonestyTheft & property
CHARACTERISATION AS “CAR RE BIRTHING” OPEN APPEAL DISMISSED

Citation: Lukasik v R [2023] NSWCCA 94
Court: NSW Court of Criminal Appeal
Date: 28 April 2023
Judges: Button J (principal judgment); Fagan J and R A Hulme AJ agreeing

Background

The applicant had pleaded guilty in the Local Court to three offences, all carrying a maximum penalty of 10 years imprisonment. The first was using a false document to obtain a financial advantage (dishonestly obtaining the free use of a Mercedes-Benz for over two weeks by presenting false identity documents and a fabricated accident story to a car rental company). The second was assault with intent to take a motor vehicle (forcibly taking a Range Rover from a worker at a smash repair workshop by threatening him). The third was attempting to dishonestly obtain property by deception (attempting to take a Porsche Cayenne from a car park, preceded by weeks of elaborate preparation including false documents and a sham business registration).

In May 2022, Judge King SC imposed an aggregate head sentence of 3 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months. The sentencing judge found that all three offences were planned, that the planning was an aggravating factor under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, and that the offences amounted, in effect, to the "re-birthing" of vehicles (a term describing the process of disguising stolen vehicles to give them false identities for resale or other profit).

The applicant sought leave to appeal against sentence on three grounds, each challenging factual findings made by the sentencing judge.

  • Whether the sentencing judge made an erroneous finding of fact in relation to the first offence (use of a false document), specifically whether it mattered that the false document was a driver's licence rather than a credit card.
  • Whether the sentencing judge made an erroneous finding of fact in relation to the second offence (assault with intent to take a motor vehicle), including findings about the applicant's motivation for taking the Range Rover.
  • Whether the sentencing judge erred in finding that all three offences were planned and constituted an aggravating factor, and in characterising the offending as involvement in "re-birthing" of vehicles.

Decision

Ground one concerned the sentencing judge's characterisation of the false document used to obtain the Mercedes-Benz. The Court of Criminal Appeal accepted that the sentencing judge may have described the document as a false credit card rather than a false driver's licence. However, Button J found this distinction immaterial. The applicant clearly obtained a substantial benefit, namely the free use of a prestige vehicle for more than two weeks, and the precise nature of the false document did not affect the seriousness of that outcome.

Ground two challenged the sentencing judge's findings about why the applicant took the Range Rover. The Court found that the sentencing judge's interpretation of the evidence regarding the applicant's motivation was open on the agreed facts. The facts, as signed by the applicant himself, demonstrated a coordinated effort between the applicant and his associate Mr Chapman to locate and take a specific vehicle, undermining any suggestion that the carjacking was opportunistic or that the applicant genuinely believed he had a right to the vehicle.

Ground three argued that the sentencing judge erred in treating all three offences as planned and in characterising the conduct as "re-birthing." Button J rejected both aspects. Each offence involved preparation that went well beyond what is inherent in the commission of such offences: the first required fabricated documents and a targeted approach to a particular type of car rental business; the second involved two people coordinating to attend at a specific location to take a located vehicle; and the third involved weeks of elaborate steps designed to manufacture a false appearance of ownership. As to "re-birthing," the Court found this characterisation was open given the similar subject matter of the three offences, their interrelationship, the steps taken to disguise the Range Rover after it was taken, and the long-standing personal and professional relationship between the applicant and Mr Chapman. The Court also noted the sentencing judge was not sentencing the applicant for an offence beyond those to which he had pleaded guilty.

Orders Made

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

Key Takeaways

  • No error was established in a sentencing judge's characterisation of a false document where the precise nature of the document was immaterial to the benefit obtained by the offender.
  • A sentencing judge's findings of fact at sentence, including findings about an offender's motivation, will not be disturbed on appeal where those findings were open on the agreed facts placed before the court: see R v Olbrich (1999) 199 CLR 270.
  • Planning as an aggravating factor under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 requires preparation going beyond what is inherent in or part and parcel of the offence itself; the Court of Criminal Appeal confirmed that each of the three offences here met that standard on the facts.
  • Characterising a series of vehicle-related offences as "re-birthing" at sentence does not, of itself, constitute sentencing an offender for an offence greater than those to which they pleaded guilty, provided the characterisation reflects an assessment of the overall pattern of offending.
  • In dismissing the appeal, the Court of Criminal Appeal emphasised the combined significance of the interrelationship between offences, post-offence conduct (such as affixing false number plates), and the personal and occupational connections between co-offenders in assessing the nature and seriousness of planned criminal activity.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 154C(1)(a), 192E(1)(a), 254(b)(ii), 344A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (aggravating factors, including s 21A(2)(n) regarding planning)
- Evidence Act 1995 (NSW), s 144

Cases:
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (principles governing findings of fact at sentence)