Car-jacking and car rebirthing offences

[20-400] Car-jacking offences

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. In his Second Reading Speech for the Crimes (Amendment) (Gang and Vehicle Related Offences) Bill, the then Attorney General (NSW), the Hon RJ Debus, explained the rationale for the new offence:

The new offence needs to be understood in light of the existing laws relating to car theft and kidnapping. It should be remembered that there are already comprehensive and adequate laws dealing with robbery, assaults and kidnapping.

It is not the intention of this new offence to override existing and adequate laws. Rather, it is 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.

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 offence of taking a motor vehicle or vessel with assault or with an occupant on board. The section provides that:

A person who:

(a)

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, or

(b)

without having the consent of the owner or person in lawful possession of a motor vehicle or vessel, takes and drives it, or takes it for the purpose of driving it, when a person is in or on it,

is liable to imprisonment for 10 years.

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:

(a)

the alleged offender is in the company of another person or persons,

(b)

the alleged offender is armed with an offensive weapon or instrument,

(c)

the alleged offender intentionally or recklessly inflicts actual bodily harm on any person.

Standard non-parole periods

Section 154C is included in the Table — Standard non-parole periods: s 54D Crimes (Sentencing Procedure) Act 1999. For offences committed on or after 1 February 2003:

the basic offence under s 154C(1) has a standard non-parole period of 3 years: item 14
the aggravated form of the offence under s 154C(2) has a standard non-parole period of 5 years: item 15.

Court of Criminal Appeal sentencing decisions which consider the aggravated form of the offence under s 154C(2) can be accessed on the SNPP Appeals component of the Judicial Information Research System (JIRS).

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. In R v Barker [2006] NSWCCA 20 at [63], Howie J, Basten JA and Hall J agreeing, set out the following non-exhaustive list of factors which may be relevant to an assessment of the objective seriousness of an offence under s 154C(2), 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.

Howie J added at [64]:

Of course the objective seriousness of the offence 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.

While Howie J doubted at [63] that the value of the vehicle is a consideration relevant to the assessment of the objective seriousness of an offence against s 154C(2) (as in such an offence there is no intention to permanently deprive the owner of the vehicle), in Trad v R [2009] NSWCCA 56 at [18], Price J, Grove and Buddin JJ agreeing, stated that:

Whilst I otherwise enthusiastically endorse what Howie J said in the passage I have quoted, 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 by way of illustration 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.

It was open to the sentencing judge in R v Matthews [2007] NSWCCA 294 to find 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: at [32]. The offence did not involve restraining the driver for a long period of time, threats of serious injury or the actual infliction of injury.

Taxi drivers and objective seriousness

The court in R v Matthews at [27] discussed the relevance of the commission of the offence against taxi drivers:

The vulnerability of taxi drivers is a significant concern not only for taxi drivers and their families, but also for the general community. They provide what has become an essential service to the public and their protection from the consequences of criminal behaviour is a significant factor to be considered in the sentencing process particularly with a view to deterrence from and denunciation of such behaviour: s 3A Crimes (Sentencing Procedure) Act 1999. However the fact of vulnerability, simpliciter, does not mean that any offence involving a taxi driver is to be categorised in the middle of the range of objective seriousness. It will depend on all the circumstances of the case.

Role and objective seriousness assessments

The fact that it was a co-offender rather than the offender being sentenced who produced a weapon will be relevant in assessing the objective seriousness of the offence: R v Baghdadi [2008] NSWCCA 239. In R v Baghdadi the 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: at [55]. However, Baghdadi’s reduced role did not necessarily justify a finding that his offence fell below the mid-range of objective seriousness: at [55].

[20-420] Car rebirthing offences

The Crimes Amendment (Organised Car and Boat Theft) Act 2006 inserted s 154G into the Crimes Act 1900 (effective 1 September 2006), creating an offence of knowingly facilitating an organised car (or boat) rebirthing activity.

In the Second Reading Speech for the Crimes Amendment (Organised Car and Boat Theft) Bill 2006, Ms Alison Megarrity, on behalf of the then Attorney General (NSW), the Hon RJ Debus, stated that the Bill’s aim was to deter those who engage in “rebirthing”, a term which “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”. 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).

Section 154G(1) provides:

(1)

A person who facilitates a car or boat rebirthing activity that is carried out on an organised basis knowing that:

(a)

it is a car or boat rebirthing activity, and

(b)

it is carried out on an organised basis,

is guilty of an offence.

The maximum penalty for an offence under s 154G(1) is 14 years imprisonment.

Standard non parole period

The offence under s 154G(1) has a standard non-parole period of 4 years: s 54D Crimes (Sentencing Procedure) Act 1999, Table — Standard non-parole periods, item 15A.

Where the offence is dealt with on indictment, it is necessary to identify where on the scale of objective seriousness the offence lies: R v Hamieh [2010] NSWCCA 189 at [28], [33], [51]. A court’s fundamental obligation to give reasons as part of the sentencing process encompasses giving reasons for such a finding: R v Hamieh at [32]–[33]. A finding that a car rebirthing offence “did not fall within the mid-range of seriousness” was not “very illuminating” as offences under s 154G include a significant range of different types of offending of varying degrees of severity: R v Hamieh at [33]. Where the judge departs from the standard non-parole period, reasons should be provided: R v Hamieh at [39].

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 is a factor which must be given weight: at [45], [63]. As was said in the Second Reading Speech for the Crimes Amendment (Organised Car and Boat Theft) Bill 2006, 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”: at [48].
2.: The creation of a new offence with a maximum penalty greater than the offences which previously caught this type of criminal activity (car stealing under s 154A Crimes Act 1900) requires that the sentences imposed for such criminal activity “reflect the legislature’s purpose and concerns” resulting in higher sentences: at [49].
3.: Section 154G encompasses a wide range of criminal activity. A court’s task is to punish an offender for the actual offending conduct engaged in: at [50]; Ibbs v The Queen (1987) 163 CLR 447 at 452. An offender’s knowledge of how to source repairable write-off vehicles, how to register those vehicles and then how to substantially rebuild those vehicles with parts from stolen vehicles are all relevant to the assessment of the objective seriousness of the offence: at [52]. Every step in the rebirthing industry is necessary and interrelated: at [52].
4.: The court must give consideration to the standard non-parole period. It is difficult to reconcile a standard non-parole period of 4 years with the maximum penalty of 14 years imprisonment: at [54]. However, the court must nevertheless approach the determination of the appropriate sentence both by reference to the maximum penalty of 14 years and to the 4-year standard non-parole period, which is the statutory reference point for an offence in the mid-range of seriousness: at [56]. It is first necessary to determine where in the range of objective seriousness the offence lies: at [57]. This part of the sentencing exercise does not require a mathematical approach, but some sense of “scaling” is required: at [57].

In R v Hamieh at [87], an order for periodic detention (not available in NSW as a sentencing option since 1 October 2010) was held to be inappropriate because of the objective seriousness of the offence; the need for general deterrence for such offences; and the respondent’s prior record which showed he had “a history of disrespect for lawful authority” which indicated a need for personal deterrence. The offender had been sentenced to 24 months imprisonment, with a non-parole period of 12 months, to be served by way of periodic detention. The Court of Criminal Appeal allowed the Crown appeal and resentenced the respondent to 3 years full-time imprisonment comprising a non-parole period of 2 years and a balance of term of 12 months.