Have you been charged with carjacking?
In Victoria, carjacking is an offence under section 79 of the Crimes Act 1958. Carjacking is liable to a maximum penalty of 15 years imprisonment.
If you have been charged with carjacking, you need to consult an experienced criminal lawyer before appearing in Court.
Being found guilty of carjacking can result in imprisonment, and there are many factors to consider before advising the Court whether you intend to plead guilty or not guilty. Before proceeding further, speak to a specialist criminal lawyer.
Notably, the elements of carjacking are the same as those of robbery, except that while robbery can involve the theft of any property, carjacking consists of the theft of a vehicle.
Elements of Carjacking
The following elements must be proved beyond a reasonable doubt for a jury to find an accused guilty of carjacking:
- The accused committed theft of a vehicle;
- Immediately before or at the time of the theft, the accused:
- Used force on any person; or
- Put any person in fear that they or another person would, then and there, be subject to the use of force; or
- Sought to put any person in fear that they or another person would, then and there, be subject to the use of force; and
- The accused did so in order to commit the theft (Crimes Act 1958 s 70(1)).
For the purposes of this offence, a ‘vehicle’ includes:
- A motor vehicle; or
- A vessel within the meaning of the Marine Safety Act 2010 (Crimes Act 1958 s 79(3)).
If a jury finds that the prosecution has not proved any of these elements beyond reasonable doubt, the accused must be found not guilty of carjacking.
As the offence of carjacking is a statutory alternative to aggravated carjacking, if a jury is not satisfied that a person is guilty of aggravated carjacking under s79A, the person may still be liable for ‘carjacking’ (under s 79).
Theft of a vehicle
The first element of carjacking is that the accused committed theft of a vehicle. The prosecution must prove the following items for this element to be made out:
- The accused appropriated property belonging to another person.
- The property was a vehicle.
- The accused intended to permanently deprive the owner of the vehicle when they appropriated it. For example, this will be demonstrated if the accused took or used the vehicle without the owner’s consent.
- The accused was acting dishonestly at the time of the appropriation. ‘Dishonesty’, in this context has a particular legal meaning which requires that the accused took the vehicle while not believing they had a legal right to take it.
Acted in order to commit theft
The final element of carjacking is that the accused acted in the way they did to commit the theft of the vehicle. That is, the accused must have used force for the purpose of stealing the vehicle rather than for any other reason.
Defences to carjacking
If you have been charged with carjacking, you may have a valid defence, such as acting under duress or mistake of fact. Experienced legal advice is important to ensure an appropriate defence is raised to a charge of carjacking.
Penalties for carjacking
Maximum penalty for carjacking
Carjacking under section 79 is liable to a maximum penalty of 15 years imprisonment. If the offence is heard summarily in the Magistrates’ Court, a maximum penalty of 2 years imprisonment can be imposed.
Mandatory imprisonment for carjacking
Carjacking is subject to mandatory sentencing as a category 2 offence under the Sentencing Act 1991 (Vic). This means that a court must impose a custodial order and cannot make a combined order (i.e. imprisonment and community corrections order) unless special reasons exist under section 5(2H) of the Sentencing Act 1991.
Penalties typically imposed
Statistics from the Sentencing Advisory Council provide a guide to the penalties typically imposed in Victoria:
- In the higher courts, in the five years to 30 June 2022, the most common sentence for a charge of carjacking was imprisonment (94% of charges), with the longest prison sentence being 5 years and the shortest sentence being 0.11 years.
- In the Magistrates’ Court, in the three years to 30 June 2021, the most common sentence for a charge of carjacking was imprisonment (68.3% of charges).
Carjacking case examples
Russo v The Queen [2021] VSCA 244
In Russo v The Queen, a 30-year-old male (O) and a co-offender stole a car from a victim (V). O drove away in V’s vehicle, driving dangerously at high speeds to avoid police. O had prior convictions for breach offences and violence and drug offences. O was also on a Community Corrections Order at the time of offending.
O was charged with carjacking, conduct endangering life and failing to stop on police request. O entered an early plea of guilty. O had a difficult childhood, including being a victim of family violence, experienced depression and anxiety, had low IQ, PTSD, ADHD and used illicit drugs. O had a good work history, family support, clean drug screens and insight into offending.
The defendant received a total sentence of 4 years imprisonment with a non-parole period of 2 years and 6 months. The individual sentence for carjacking in this case was 3 years.
DPP v Sobh [2021] VCC 1338
In DPP v Sobh, a 38-year-old male (O) leased commercial premises to the victim (V) on the understanding that the premises would be used to store trucks and empty waste bins. V breached the agreement by not paying rent and dumping toxic materials and waste at the site.
After numerous failed attempts to resolve the dispute with V, O went to the site with a co-offender (CO) and used a car to block V from exiting the site in his truck. CO opened V’s truck door and punched him several times before O pulled V out of the truck’s cabin and drove away in the truck after CO moved the car.
O was charged with carjacking and common law assault. O had no prior convictions, had experienced a difficult childhood and had mental health issues, including PTSD. O had family support, was previously of good character, had a good work history, was remorseful and was a family carer. O also demonstrated remorse for the offending. O entered an early plea of guilty and was sentenced to a 2 year Community Corrections Order.
DPP v Green [2021] VCC 1143
In DPP v Green, the offender (O), a 50-year-old male, was informed by his 12-year-old daughter that there had been an altercation between O’s ex-partner (W), W’s new partner CO and CO’s friend V.
O then spoke with CO, telling him to arrange a meeting with V via text. In the text, O and CO threatened to visit V’s mother’s house. V then drove to his mother’s house to check on her before he was intercepted by O and others in another car.
As V got out of his car, he was approached by O, who told him he was taking the car. O told V to get into O’s car. As O walked with V to the vehicle, another offender entered V’s car and drove away. V fled on foot. Upon arrest, O was found to possess 0.2g of heroin and 1.2g of meth. A search of O’s premises revealed possession of a sawn-off rifle.
O was charged with carjacking, possession of a firearm as a prohibited person and possession of a drug of dependence (x2). O had prior convictions for violence, dishonesty offences and drug offences. He had a difficult childhood, a history of drug use, and had guarded prospects rehabilitative prospects.
O pleaded not guilty to carjacking and guilty for the other offences. Pre-sentence detention was considered, and O was sentenced to 2 years and 2 months imprisonment with a non-parole period of 1 year and 6 months. The individual sentence for carjacking was 1 year and 10 months.
Where will the case be heard?
Charges for carjacking can be heard summarily in the Magistrates Court (see Schedule 2 of the Criminal Procedure Act 2009). However, depending on the circumstances of the offence and whether any other charges are laid, charges for carjacking may be heard in a higher court.
What to do if you have been charged
Carjacking is a serious charge, and if found guilty, the range of penalties, aggravating and potentially mitigating factors mean that it is crucial to seek legal advice as early as possible.
A legal practitioner with specialist experience defending carjacking charges is essential to navigate this serious area of the law, plan your defence and achieve the best possible outcome.
The legislation
Carjacking – s79 Crimes Act 1958
- A person (A) commits a carjacking if—
- A steals a vehicle; and
- immediately before or at the time of doing so, and in order to do so, A—
- uses force on another person; or
- puts or seeks to put another person (B) in fear that B or anyone else will then and there be subjected to force.
- A person who commits a carjacking commits an offence and is liable to level 4 imprisonment (15 years maximum).
- In this section—
“vehicle” includes—- a motor vehicle;
- a vessel within the meaning of the Marine Safety Act 2010.
Note
An offence against this section is a category 2 offence under the Sentencing Act 1991. See section 5(2H) of that Act for the requirement to impose a custodial order for this offence unless the circumstances set out in paragraphs (a) to (e) of that subsection exist.
