By Sahar Adatia and Jimmy Singh
On October 4, 2018, a man was arrested following carjacking a Range Rover in Redfern (https://www.smh.com.au/national/nsw/man-ejected-from-range-rover-after-carjacking-leading-to-police-pursuit-20181004-p507tb.html) while a 61-year-old man was still inside the vehicle.
According to NSW Police, just before 1:30pm on the day, reports were made that the Range Rover was stolen from a car wash on Cleveland Street. The 24-year-old man from Harris Park entered the car where the driver remained for a brief time before eventually being ejected on the Sydney street. The victim was uninjured.
Following this, officers from Redfern Police Area Command witnessed the Range Rover on Laing Road and attempted to stop the vehicle. However, the carjacker allegedly drove away, striking a male leading senior constable who was standing on the road, leading police on a chase through Sydney’s eastern suburbs.
The pursuit halted near Moore Park a short time later after police felt its termination was necessary due to safety concerns.
The Range Rover then made its way through Centennial Park and continued on to Kingsford. It eventually stopped in Eastlakes on Maloney Street.
The driver was arrested and taken to Redfern Police Station for questioning. The investigation continues.
Australian Institute of Criminology: The issue of carjacking in Australia
According to the Australian Institute of Criminology (https://aic.gov.au/publications/tandi/tandi351), car-jacking in Australia is considered both a crime against the person and a form of property crime, which is also referred to as violent property crime.
The Australian Institute of Criminology recommends 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. These include:
- Targeting of moving vehicles, which can occur by tailing a vehicle and bringing it to a halt, or bumping it intentionally causing a minor rear-end collision
- Targeting of stationary vehicles at sites where access to keys is possible, including petrol stations, automatic teller machines, car washes, at traffic lights
- Targeting vehicle owners outside the immediate vicinity of their automobile
- Home invasions where offenders have secured a vehicle from the homeowner, although considered rare incidents.
Carjacking incidents are regularly attributed to organised offenders motivated by financial gain via vehicle disposal, along with more diverse intentions too. These include a need for transportation, fraudulent vehicle disposal, and the objective of committing another crime, such as armed robbery.
In Australia, carjacking appears to comprise only a minor proportion of motor vehicle thefts, of which the rates are the lowest they have been (http://www.abc.net.au/news/2017-04-03/nsw-crime-at-its-lowest-in-40-years/8411126) since records began in the early 1970s.
Understanding the term carjacking
As the Australian Institute of Criminology advises, the term carjacking is multifaceted. For this reason, it is also difficult to accurately capture and count instances of carjacking in Australia, and this specifically relates to:
- Differing understandings of what the notion of carjacking describes
- Varying offences that could be involved in a carjacking incident
- Jurisdictional differences in legislation and police recording practices.
Similarly, media portrayals of carjacking also present varying ideas. These tend to emphasise violence, underscoring any ensuing injuries or emotional distress to victims, although a defining feature of this crime is the specific targeting of a vehicle by thieves.
One such incident that ignited widespread public interest involved the carjacking of a prominent Sydney obstetrician back in 2007 (https://www.news.com.au/national/carjack-doctor-tells-of-escape-from-flames/news-story/fb5b343107f3f82e291a6f7dcf46dd8b) who was on his way to deliver a baby in North Sydney. The 34-year-old specialist was stopped by two men claiming to be police officers, who removed the ignition keys and eventually pulled him from the driver’s seat of his BMW. He was then struck in the stomach with a hammer, robbed and forced into the boot of his car. His captors then set the vehicle alight, however the doctor fortunately was able to escape.
The Australian Bureau of Statistics (http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4510.0Glossary12014) suggests that a critical defining component in understanding the term is the presence of threat or menace to the victim and advises a definition 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.”
The Law and Penalties for Car-Jacking in NSW
In NSW, the offence of car-jacking is understood as a stealing offence and is referred to as “stealing (https://www.criminaldefencelawyers.com.au/criminal-law/offences/robbery-or-stealing/larceny/) a motor vehicle or vessel with assault or with an occupant on board”. It varies from the offence of taking a conveyance without the consent of the owner – also known as joyriding – in that it is more serious.
A person guilty of ‘taking a motor vehicle with assault or with occupant on board’ will face a penalty of up to 10 years imprisonment under section 154C(1) of the Crimes Act 1900 (NSW) (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s154c.html).
The offence also carries a ‘standard non-parole period’ of 3 years. This means that Parliament has indicated to Courts that a standard 3 years minimum full-time custody should be considered as a guidepost for this offence if it’s considered to fall in the middle level of objective seriousness by the Judge.
There are many factors that are considered or taken into account when a Judge assesses the objective seriousness of an offence. This includes, extent of any injuries caused, damage to the vehicle, extent of planning and premeditation to commit the crime, type of any threats made, or violence displayed, and period in which the vehicle is used for.
To illustrate what ‘objective seriousness’ means, Justice Price in Trad v R  NSWCCA 56 at  (https://jirs.judcom.nsw.gov.au/nswcca/judgments/2009/2009_NSWCCA_56.html) said, “it seems to me that the value of the motor vehicle, the subject of the car-jacking, is a relevant consideration as that motor vehicle is the victim’s property which is taken. The car-jacking of a brand-new Lamborghini… would normally be considered more serious than the car-jacking of a vehicle of a common make and model. Car-jackings are in many cases motivated by the make and model of the vehicle to be taken.”
When a Judge imposes a sentence of imprisonment, the sentence will generally include a ‘non-parole period’, and ‘parole period’. The parole period is the term of the sentence that allows the offender to serve in the community.
You will be guilty of car-jacking (taking a motor vehicle with assault or with an occupant on board) if the prosecution can prove each of the following elements of the crime:
You will be guilty of car-jacking, in the case of taking a vehicle with assault under s154(C)(a) if:
- You assaulted a person; and
- You did that with the intention of taking a motor vehicle; and
- You took and drove the motor vehicle without the owner’s consent (or without the consent of the person in possession of the vehicle).
You will be guilty of car-jacking, in the case of taking a vehicle when a person is in it under s154(c)(b) if:
- You took and drove a motor vehicle; and
- You did that without the owner’s consent (or without the consent of the person in possession of the vehicle); and
- At the time of taking or driving it, another person was in the vehicle.
A person guilty of car-jacking ‘in circumstances of aggravation’ will face a penalty of up to 14 years imprisonment under section 154C(2) of the Crimes Act 1900 (NSW).
You can be guilty of car-jacking ‘in circumstances of aggravation’ if the above 3 elements are proven in addition to any one of the following:
- You were in the company of another person or persons; or
- You were armed with an ‘offensive weapon (https://www.criminaldefencelawyers.com.au/blog/what-are-the-defences-and-penalties-for-being-armed-with-an-offensive-weapon-in-nsw/)’ or instrument; or
- You intentionally (or recklessly) inflicted actual bodily harm (https://www.criminaldefencelawyers.com.au/criminal-law/offences/assault/assault-occasioning-actual-bodily-harm/) on any person.
What are the Defences to a Charge of Car-Jacking?
Your charge of car-jacking will be dismissed if any one of the following defences apply:
- Where you believed you had the right to the motor vehicle. This defence can be run if you genuinely (honestly) held this belief whether or not in truth you had a right to it. that belief must be a belief as to legal entitlement, not moral entitlement.
- At the time of taking the vehicle, you didn’t intend to permanently deprive the owner of it.
- Lost property: Where you had discovered and took the vehicle.
- You didn’t drive away or take away the vehicle, or you didn’t have the requisite intention to do this.
- You had the consent to take and drive away in the vehicle.
- You did this under duress or necessity.
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