The Crimes Amendment (Gang and Vehicle Related Offences) Act 2001 s 154C CARJACKING

PURPOSE OF THE ACT: The Crimes Amendment (Gang and Vehicle Related Offences) Act 2001 inserted s 154C into the Crimes Act 1900, creating a basic offence of taking a motor vehicle (or vessel) with assault or with an occupant on board (car-jacking) and an aggravated form of the offence. Intended that this new offence will apply to circumstances not already covered by a specific offence. In short, it is an attempt to fill the gap between robbery and larceny. It will apply in circumstances which involve actions more serious than joy- riding but not as serious as robbery or kidnapping. In addition, it will apply irrespective of whether the defendant has an intention to permanently deprive the owner of his or her vehicle.

TAKING MOTOR VEHICLE OR VESSEL WITH ASSAULT OR WITH OCCUPANT ON BOARD: S 154C(1)  Section 154C(1) provides for the offence of taking a motor vehicle or vessel with assault or with an occupant on board, is liable to imprisonment for 10 years. Assaults 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, takes and drives it, or takes it for the purpose of driving it.

TAKING MOTOR VEHICLE OR VESSEL WITH ASSAULT OR WITH OCCUPANT ON BOARD IN CIRCUMSTANCES OF AGGRAVATION: S 154C(2) Section 154C(2) provides that a person is guilty of an offence under that subsection if he or she commits an offence under s 154C(1) in circumstances of aggravation. Section 154C(3) specifies that “circumstances of aggravation” means circumstances involving any one or more of the following: tthe alleged offender is in the company of another person or persons, tthe alleged offender is armed with an offensive weapon or instrument, tthe alleged offender intentionally or recklessly inflicts actual bodily harm on any person.”

STANDARD NON-PAROLE PERIODS: S 54D CRIMES (SENTENCING PROCEDURE) ACT 1999: The basic offence under s 154C(1) has a standard non-parole period of 3 years The aggravated form of the offence under s 154C(2) has a standard non-parole period of 5 years

APPLYING FOR NON-STANDARD PAROLE: In order to apply the standard non-parole period legislation, a sentencing judge is obliged to consider where an aggravated car-jacking offence lies on the scale of objective seriousness. whether the offence was planned the number of persons involved in committing the offence and their conduct the degree of violence displayed; the number of persons in the vehicle at the time of the offence the degree of fear instilled in the victim the period over which the vehicle is used; damage to the vehicle (if not giving rise to a separate charge) the place and time the offence is committed (for example whether at night or in an isolated area) the special vulnerability of the victim; and the motive for the commission of the offence”. Value of the vehicle. Weapons involved and was injury inflicted.

R V MATTHEWS [2007] + R V BAGHDADI [2008] OBJECTIVE SERIOUSNESS In R v Matthews [2007] NSWCCA 294 the judge found that the car-jacking offence was “towards the bottom of the range of objective seriousness” for the purposes of applying the standard non-parole period provisions: The offence did not involve restraining the driver for a long period of time, threats of serious injury or the actual infliction of injury. Role and objective seriousness assessments: In R v Baghdadi [2008] NSWCCA 239; the accused circumstance of aggravation was that the offence was committed in company. The fact that Baghdadi’s co-offender carried and brandished a weapon justified a finding of greater criminality on the co-offender’s part. However, Baghdadi’s reduced role did not necessarily justify a finding that his offence fell below the mid-range of objective seriousness.