Carjacking

An individual commits the offence of ‘Carjacking’ if they steal a vehicle using force or a threat of force. An Aggravated offence of Carjacking applies when a weapon is used, or if the alleged victim is injured during the commission of the Carjacking. In this article, we discuss the offence, the elements the Prosecution must prove and possible defences to both a Carjacking and Aggravated Carjacking charge.

Elements of the Carjacking Offence

The Police are required to prove the following elements beyond reasonable doubt in order to establish the offence of Carjacking:

1. You committed theft of a vehicle;
2. At the time, or immediately before, you used force and put the alleged victim in fear (or attempted to put the alleged victim in fear) that force will be used on either themselves or another person;
3. You did to in order to commit the theft of a vehicle.

‘Theft’ of a vehicle requires the Police to prove that you stole a vehicle without the owner’s consent. Theft of a vehicle also means ‘use’ without the consent of the vehicle’s owner. This can include situations where you used a stolen vehicle as a passenger. ‘Vehicle’ means either a motor vehicle intended to be used on a roadway (e.g. car), a vehicle intended to be used on a railway or tramway (e.g. train or tram), a motorised wheelchair (e.g. gopher) or a marine vessel (e.g. boat).[1] ‘Vehicle’ can also include a pedal-powered bike, trailer or other design intended to be propelled.[2]

It is irrelevant to the charge as to whether force was successfully used in the Carjacking, but the Police must prove that you sought to create fear in the alleged victim that force would be used.

Aggravated Carjacking Elements

The aggravated offence of Carjacking carries an additional element:

1. You either used a prohibited weapon (including firearm, imitation firearm, explosive, offensive weapon) or intentionally caused injury to the alleged victim during the theft of the vehicle.[3]

‘Injury’ means either physical or harm to one’s mental health.[4]

Possible Penalties

The maximum penalty for the offence of Carjacking is 15 years imprisonment.[5]

An Aggravated Carjacking offence carries a maximum penalty of up to 25 years imprisonment.[6]

Aggravated Carjacking also carries a mandatory minimum term of imprisonment of 3 years (unless special circumstances exist, which if established, enable the judge full sentencing discretion).[7] The mandatory penalties only apply to offences committed after 1 July 2017.

Defences

If any of the elements for Carjacking or Aggravated Carjacking are not proven beyond reasonable doubt, the offence cannot be established. For example, if you can establish that you believed you had a legal right to the vehicle, it will be a defence to a Carjacking charge. It may also be a defence to a Carjacking charge to argue that you did not intend to commit theft of the vehicle.

Additionally, you can defend an Aggravated Carjacking charge if you can prove that you did not have a firearm or weapon on you at the time of the alleged offence or that the subject weapon was not for the purposes of Carjacking.

If the Aggravated Carjacking charge follows from causing injury to the alleged victim, you may argue that the injury was ‘superficial’ or ‘trivial’ and therefore does not meet the definition of ‘injury’.[8] For example, if the alleged victim did not suffer psychological harm, but only distress, fear or anger, the Aggravated component will not be satisfied. You can also argue that it was not your intention to injure the alleged victim and that the injury occurred by mistake. Finally, you may also have a defence of a factual dispute relating to the charge.

We suggest that you should contact an experienced legal practitioner as soon as possible if you are to be interviewed in relation to this offence so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

[1] Road Safety Act 1986 (Vic) s 3; Marine Safety Act 2010 (Vic) s 3.
[2] Road Safety Act 1986 (Vic) s 3.
[3] Crimes Act 1958 (Vic) s 79 (1); Crimes Act 1958 (Vic) s 77.
[4] Crimes Act 1958 (Vic) s 15.
[5] Crimes Act 1958 (Vic) s 79 (2).
[6] Crimes Act 1958 (Vic) s 79A (2).
[7] Sentencing Act 1991 (Vic) s 10AD.
[8] Crimes Act 1958 (Vic) s 15.