Carjacking Offences and Defences in NSW

Poppy Morandin.

A young woman has been charged following investigations into an alleged carjacking at Castle Hill.

Police allege that the 18-year-old female flagged down a 40-year-old man, driving a Holden Commodore, claiming that she was injured.

After the man had stopped the vehicle to assist the woman, he was threatened by two men armed with a knife.

The 40-year-old man was uninjured, as the men and woman stole the Commodore and fled the scene.

It is reported that a red Honda Jazz with two occupants also followed the Commodore from the area.

Officers from The Hills Police Area Command were called to Gilbert Road, near Caterson Drive, Castle Hill, following the incident.

It occurred around 4.40am.

The woman was arrested at a unit in Kellyville and taken to Castle Hill Police Station where she was charged with aggravated take/drive motor vehicle with person in/on it – in company and aggravated take/drive motor vehicle with person in/on it – armed with weapon.

Police will allege that the woman was also involved in a carjacking at Powell Street, Killara, about 12.45am on Tuesday 23 March 2021.

Investigations continue regarding the identity of the men allegedly involved in the incident.

A recent report released by the NSW Bureau of Crime Statistics and Research into long-term trends in violent and property crime has revealed that per capita rates of motor vehicle theft have fallen 85% in 2020 from 1990.

Per capita rates have also significantly fallen with regard to robbery with a firearm (92% lower), break and enter dwelling (76% lower) and robbery without a weapon (73% lower).

Carjacking Offences and Defences in NSW

‘Carjacking’ is criminalised under section 154C of the Crimes Act 1900 (NSW) and carries a maximum penalty of 10 years in jail. The offence also carries a 3-year standard non-parole period. The standard non-parole period indicates to the court that this should be the minimum full-time custody period as a guide, and applies only if the offence falls in the mid-range of objective criminality for such offences.

Pursuant to section 154C of the Crimes Act 1900 (NSW), it is an offence to:

• assault another person with intent to take a motor vehicle or vessel and, without having the consent of the owner or person in lawful possession of it, take and drive it, or take it for the purpose of driving it, or
• without having the consent of the owner or person in lawful possession of a motor vehicle or vessel, take and drive it, or take it for the purpose of driving it, when a person is in or on it.

The offence applies in instances more serious than joy-riding but not as serious as robbery or kidnapping.

An accused person may face a heavier maximum penalty of 14 years imprisonment if the offence is committed in ‘circumstances of aggravation’.

Under section 154C(3), there are three possible ‘circumstances of aggravation’, namely, where the alleged offender:

• is in the company of another person or persons,
• is armed with an offensive weapon or instrument, or
• intentionally or recklessly inflicts actual bodily harm on any person.

Actual bodily harm entails an injury that need not be permanent, but more than merely transient or trifling (R v Donovan [1934] 2 KB 498).

While the basic ‘carjacking’ offence has a standard non-parole period of 3 years, whereas the aggravated offence has a standard non-parole period of 5 years, pursuant to section 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW).

During sentencing, factors such as whether the offence was planned, the number of persons involved, their conduct, the type of threats made, the degree of violence displayed; the number of persons in the vehicle at the time and the degree of fear instilled in the victim, will be considered with regard to an assessment of the objective seriousness of the offence.

These considerations were outlined in R v Barker [2006] NSWCCA 20 at [63] by Howie J, Basten JA and Hall J.

Defences to Carjacking Charges

Any one or more of the following are legal defences to a carjacking charge in NSW:

1. The accused honestly belief he/she had a legal right to the vehicle. This defence applies even if the accused at law had no legal right to the vehicle. However, there must be an honest believe as to a legal right to it, not a moral right.
2. There was no intention to permanently deprive the owner or person in lawful possession.
3. The vehicle was lost property.
4. The vehicle was not driven away nor taken away.
5. There was consent provided.
6. Duress or necessity.

Question? Get in touch with our criminal lawyers in Penrith and Sydney today.

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