What is the Law on Car-Jacking?

By Sahar Adatia and Jimmy Singh.

 

When it comes to vehicle theft in Australia, there’s both good news and bad news.

The good news is that car theft has been in gradual decline over the last decade, significantly due to improvements in car security technology such as immobilisers in newer model vehicles.

On the flip side, the bad news is that criminals are still getting away with theft in older cars, motorcycles and vehicles.

Either way you look at things, one message is clear: As a driver, you shouldn’t be complacent when it comes to protecting your vehicle.

Case in point: Last month a Sydney mother was threatened with a stun gun and carjacked during a routine trip to the grocery store.

On 12 March 2019, the 52-year-old woman, who for privacy reasons can only be referred to as Sandra, was returning to her 2015 Porsche Macan 4WD at the rooftop carpark of Eastgardens Westfield with a trolley full of shopping when a man suddenly appeared and took off with her vehicle.

According to terrifying footage that surfaced of the incident, just before 5pm, Sandra began to pack her shopping bags into her car, at which point a man could be seen pacing back and forth, observing her from behind nearby parked vehicles.

As the woman returned her trolley to a bay not far away and then climbed back into her car, the man jogged towards the luxury 4WD and jumped into the front passenger seat.

He instructed the woman to drive and threatened her with a device believed to be a stun gun.

However, thinking quickly, she then kicked open her driver’s side door and immediately rolled onto the concrete to escape her attacker.

The man then sped off in the Porsche – believed to be worth around $70,000 on the used market – leaving the distraught woman to run for help, without her handbag or mobile phone.

The woman was soon aided by members of the public who rushed to her rescue.

 

Car’s Movements Tracked by Woman’s Mobile Phone Left in Car

With Sandra’s phone left behind in the car, officers from Botany Bay Command were rapidly able to track the car’s crusades.

The vehicle was eventually traced to nearby Wentworth Avenue in the close suburb of Eastlakes, where the alleged carjacker, revealed to be Steven Krotiris, was arrested coming out of the bushes.

The 42-year-old was then taken into custody.

 

Man Charged after Carjacking Luxury Porsche

Mr Krotiris was taken to Mascot Police station where he was charged with aggravated taking a motor vehicle with a person inside.

He was also driving during a disqualification period.

 

The Multifaceted Nature of Carjacking

The word carjacking is derived from the word hijacking, in which a person is forcibly removed from an occupied motor vehicle.

Although carjacking has been taking place for many decades, it wasn’t until the mid-1980s that the crime caught the attention of media and started to develop in its definition.

The Australian Institute of Criminology advises that the term carjacking is multifaceted and there are variations in understanding what it constitutes.

According to the Australian Institute of Criminology, the term carjacking encompasses a wide range of situations in which vehicles and/or keys to those vehicles are stolen through threats, violence and/or intimidation.

In comparison, media portrayals of the term tend to emphasise notions of violence, and thus draw attention to the injuries that may occur in the process of being carjacked as well as the emotional distress to victims.

Meanwhile, according to the Australian Bureau of Statistics, a critical defining component in understanding the term is the presence of threat or menace to the victim. The Australian Bureau of Statistics advises a definition of carjacking consistent with robbery:

“The unlawful taking of property, with intent to permanently deprive the owner of the property, from the immediate possession, control, custody or care of a person or organisation, accompanied by the use, and/or threatened use of immediate force or violence.”

When unpacking the criminal offence of carjacking, legislation advises that it is essentially understood as a stealing offence, referred to as “stealing a motor vehicle or vessel with assault or with an occupant on board”. It must be noted that this varies from the offence of taking a conveyance without the consent of the owner – also known as joyriding – in that it is more serious.

Given the variations in perceptions of the term, which consider the impact of violence, and range from a crime against a person to a form of property crime, it is often difficult to precisely capture carjacking cases in Australia. As such, it is also difficult to tally its instances.

 

The Problem of Carjacking in Australia

In Australia, carjacking appears to comprise only a minor proportion of motor vehicle thefts, of which the rates are the lowest they have been since records began in the early 1970s.

That said, the reason carjackings seemed to once rise in popularity is attributed to the fact that car alarm systems and ant-theft devices have considerably advanced. As a result, stealing a car the old-fashioned way has become more difficult thanks to attention-raising car alarms and locking devices in place.

Nowadays, when a criminal needs to steal a car, carrying this out through an unprovoked violent attack that has come out of nowhere is thus less complicated.

In general, carjacking incidents are regularly attributed to organised offenders motivated by financial gain via vehicle disposal. More diverse intentions are sometimes at play too. These include a need for transportation, fraudulent vehicle disposal, and for the objective of committing another crime, such as armed robbery.

What are the Penalties for Car-Jacking in NSW?

In NSW, the offence of carjacking is referred to as a stealing offence.

Stealing is also referred to as larceny, which occurs when you take and carry something that doesn’t belong to you away, with the intention of permanently depriving the owner of it, in circumstances the owner gave no consent for you to do this.

Penalties for larceny very depending on the value of the stolen item.

However, car-jacking is when a person steals a motor vehicle (or vessel) and assaults or where a person steals a motor vehicle with an occupant still in the vehicle, pursuant to section 154C(1) Crimes Act 1900 (NSW).

The offence of car-jacking carries a maximum penalty of imprisonment of up to 10-years.

The offence of car-jacking in circumstances of aggravation carries a maximum penalty of up to 14-years imprisonment.

Further to this, it is also considered a standard non-parole period offence. This means that it also carries a standard non-parole period of 3-years imprisonment. A non-parole period is the period a convicted offender is required to spent in jail for before being eligible for release on parole.

The standard non-parole period prescribed under the law is used to help and guide the Courts when a sentencing Judge is considering the appropriate period of non-parole to impose on an offender who falls in the middle of the range of objective seriousness for this kind of offence.

A Judge will assess many factors of a case when determining on what the appropriate sentence should be for an offender of car-jacking. These factors include the value of the vehicle or vessel stolen, extent of injuries caused, and extent of aggression used and/or displayed at the time (Trad v R [2009] NSWCCA 56).

Where a person commits the crime of car-jacking in circumstances of aggravation, the law prescribed a 5-years standard non-parole period to reflect how serious Parliament considers this offence.

A person will be guilty of car-jacking if he/she:

  1. Assaults a person with the intention of taking the motor vehicle; and
  2. Takes and drives away with a motor vehicle without the owner’s consent

A person will also be guilty of car-jacking if he/she:

  1. Takes and drives away with a motor vehicle without the owner’s consent; and
  2. During this time there was also a person in the vehicle.

A person will be guilty of car-jacking in ‘circumstances of aggravation’ if he/she:

  1. Commits any one of the above two scenarios; and
  2. Does so in any one or more of the following circumstances of aggravation:
    • The offender was armed with an ‘offensive weapon’ or instrument; or
    • The offender either recklessly or intentionally caused actual bodily harm on someone else; or
    • The offender was also in the company of another person.

The common defences to a charge of car-jacking includes, the belief of a right to the vehicle in the sense of a legal entitlement genuinely held; an absence of any intention to permanently deprive the owner at the time; the vehicle was lost property; the vehicle wasn’t taken away; or the crime was committed under circumstances of necessity or duress.

We are available 24/7 with criminal defence lawyers in Sydney City, Newcastle, Wollongong and 5 other locations in NSW. Please contact us if you have any questions.

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