Car-jacking and car rebirthing offences
[20-400] “Car-jacking” offences
Section 154C Crimes Act 1900 provides for offences of taking a motor vehicle (or vessel) without consent, with assault or with an occupant on board (car-jacking).
In the Second Reading Speech for the Bill introducing the offences, the then-Attorney General explained:
It is not the intention of this new offence to override existing and adequate laws … It is an attempt to fill the gap between robbery and larceny.
The new offence will provide police with a simple and straightforward offence. 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 simpliciter offence, which has a maximum penalty of 10 years imprisonment and a standard non-parole period of 3 years. It is a Table 1 offence and may be dealt with summarily: Item 9, Pt 2, Table 1, Criminal Procedure Act 1986.
Taking motor vehicle or vessel with assault or with occupant on board in circumstances of aggravation: s 154C(2)
Section 154C(2) provides for an aggravated s 154C(1) offence. Section 154C(3) specifies “circumstances of aggravation” means circumstances where the offender:
- (a)
is in company,
- (b)
is armed with an offensive weapon, and/or
- (c)
intentionally or recklessly inflicts actual bodily harm on any person.
The aggravated offence has a maximum penalty of 14 years imprisonment and a standard non-parole period of 5 years.
Objective seriousness
In R v Barker [2006] NSWCCA 20, Howie J (Basten JA and Hall J agreeing) set out the following non-exhaustive list of factors which may be relevant to the objective seriousness of a s 154C(2) offence, where the aggravating circumstance is that the offender was in company:
… whether the offence was planned; the number of persons involved in committing the offence and their conduct; the type of threats made; 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.
[Objective seriousness] will be increased if either of the other two aggravating elements of the offence are also present: that is that the offenders, or any of them, are armed with an offensive weapon or actual bodily harm is inflicted upon the victim. If they are present then the nature of the weapon and its capacity to inflict serious injury, and the nature of the injury inflicted, will be relevant factors: [63]–[64].
Further, for a s 154C(2) offence where the aggravating circumstance is the offender was in company, the fact it was the co-offender (rather than the offender being sentenced) who produced a weapon will be relevant in assessing objective seriousness: R v Baghdadi [2008] NSWCCA 239 at [55].
See R v Matthews [2007] NSWCCA 294 at [27] for a discussion of the offence in relation to taxi drivers and their vulnerability.
There are conflicting authorities about whether the value of the vehicle the subject of the offence is relevant to the assessment of objective seriousness: see R v Barker at [63] and Trad v R [2009] NSWCCA 56 at [18].
[20-420] Car rebirthing offences
Section 154G Crimes Act 1900 contains the offence of knowingly facilitating an organised car, boat, or trailer rebirthing activity.
The offence has a maximum penalty of 14 years imprisonment and a standard non-parole period of 4 years.
Car rebirthing “covers a range of illegal activities that have one thing in common: to allow a stolen vehicle, or a vehicle that has parts that have been stolen, to be passed off and registered as a legitimate vehicle”: Second Reading Speech to the Crimes Amendment (Organised Crime and Boat Theft) Bill 2006. Re-birthing has adverse financial consequences for the owners of stolen cars; for the unwitting purchasers of “rebirthed” vehicles; and for the community through higher insurance premiums: R v Elkhouri [2001] NSWCCA 277 at [16] (in the context of offences involving the theft of cars for the purpose of rebirthing).
Relevant sentencing principles
In R v Hamieh [2010] NSWCCA 189, the Court identified the following matters relevant to sentencing for a car rebirthing offence:
- 1.
-
General deterrence must be given weight: at [45], [63]. The intention of creating the offence was to deter involvement in car rebirthing and to “send a clear message to those thinking of being involved in rebirthing activity that the punishment will far outweigh any illegal benefits”: [48]; Second Reading Speech to the Crimes Amendment (Organised Car and Boat Theft) Bill 2006.
- 2.
-
The creation of an offence with a maximum penalty greater than the offences which previously caught the same type of criminal activity (taking a conveyance without consent under s 154A Crimes Act 1900) requires higher sentences be imposed to “reflect the legislature’s purpose and concerns”: [49].
- 3.
-
Section 154G includes a significant range of different types of offending of varying degrees of severity: [33]. A court’s task is to punish an offender for the actual offending conduct engaged in: [50]; Ibbs v The Queen (1987) 163 CLR 447 at 452. Even where an offender is not alleged to have been involved in the theft of the vehicles from which the stolen parts came, every step in the rebirthing industry is necessary and interrelated: [52].
- 4.
-
While it is difficult to reconcile the standard non-parole period of 4 years with the maximum penalty of 14 years imprisonment, the court must nevertheless approach the determination of the appropriate sentence by reference to both, with the standard non-parole period being the statutory reference point for an offence in the mid-range of seriousness: [54], [56].