Have you been charged with Aggravated Carjacking?
In Victoria, aggravated carjacking is an offence under section 79A of the Crimes Act 1958. If you have been charged with aggravated carjacking, you need to consult an experienced criminal lawyer before appearing in Court.
Aggravated carjacking is a serious offence subject to mandatory imprisonment, and many factors must be considered before advising the Court whether you plead guilty or not guilty. Speak to a specialist criminal lawyer before proceeding further.
The offence of carjacking is a statutory alternative to aggravated carjacking. This means that if a jury is not satisfied that a person is guilty of ‘aggravated carjacking’, the person may still be liable for carjacking (under s 79).
Elements of Aggravated Carjacking
The following elements must be proved beyond a reasonable doubt for a jury to find an accused guilty of aggravated carjacking:
- The accused committed carjacking; and
- Either:
- At the time the person had a firearm, an imitation firearm, an offensive weapon, an explosive or an imitation explosive; or
- In the course of the carjacking, the person causes injury to another person (Crimes Act 1958 s 79A(1)).
As already noted, the elements of carjacking are the same as for robbery, except that while robbery can involve the theft of any property, carjacking involves the theft of a vehicle only.
The second element of aggravated carjacking consists of two alternatives: either that the accused possessed a proscribed weapon or that the accused caused injury to a person.
If a jury finds that the prosecution has not proved any of these elements beyond reasonable doubt, the accused must be found not guilty of aggravated carjacking.
However, if a jury is not satisfied that a person is guilty of a charge of ‘aggravated carjacking’, the person may still be liable for carjacking (under s 79).
Defences to aggravated carjacking
If you have been charged with aggravated carjacking, you may have a valid defence, such as acting under duress or mistake of fact. Experienced legal advice is important to ensure an appropriate defence is raised to a charge of aggravated carjacking.
Penalties for aggravated carjacking
Maximum penalty for aggravated carjacking
Aggravated carjacking under section 79A is liable to a maximum penalty of 25 years imprisonment.
Mandatory imprisonment for carjacking
Aggravated carjacking is subject to mandatory sentencing as a category 1 offence under the Sentencing Act 1991 (Vic). This means that a court must impose a sentence of imprisonment with a minimum non-parole period of at least three years for aggravated home invasion (Sentencing Act 1991 s10AD, s10AC(1)).
Penalties typically imposed
In the higher courts, in the five years to 30 June 2022, the most common sentence for a charge of carjacking was imprisonment (71% of charges), with the longest prison sentence being 5 years and the shortest sentence being 0.26 years (Sentencing Advisory Council).
Where will my case be heard?
Charges for aggravated carjacking are heard in the County Court or the Supreme Court.
What to do if you have been charged
Aggravated carjacking is a serious charge with mandatory imprisonment, and if found guilty, the range of penalties, aggravating and potentially mitigating factors mean that it is crucial to seek legal advice as early as possible.
A legal practitioner with specialist experience defending carjacking charges is essential to navigate this serious area of the law, plan your defence and achieve the best possible outcome.
Legislation
Crimes Act 1958 s79A
Aggravated carjacking
- A person commits an aggravated carjacking if the person commits a carjacking and—
- at the time the person has with them a firearm, an imitation firearm, an offensive weapon, an explosive or an imitation explosive; or
- in the course of the carjacking the person causes injury to another person.
- A person who commits an aggravated carjacking commits an offence and is liable to level 2 imprisonment (25 years maximum).
- In this section—
“explosive, firearm, imitation explosive, imitation firearm”, and offensive weapon have the same meanings as in section 77;
“injury” has the same meaning as in section 15.
Notes
1AA An offence against this section is a category 1 offence under the Sentencing Act 1991. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.
1 Section 10AD of the Sentencing Act 1991 requires that a term of imprisonment be imposed for an offence against section 79A and that a non-parole period of not less than 3 years be fixed under section 11 of that Act unless the court finds under section 10A of that Act that a special reason exists.
