Aggravated Carjacking

Police Interview

Police will usually want to interview you, often shortly after arrest and while you are still in custody. By that stage they normally hold CCTV, telephone data, forensic material or a statement from the driver. Anything you say can be used against you. Do not take part in an interview before speaking to a criminal lawyer. We can attend the police station with you.

Bail

Aggravated Carjacking is a Schedule 1 offence under the Bail Act 1977. That means bail must be refused unless you satisfy the bail decision maker that exceptional circumstances exist justifying a grant of bail. The burden sits with you, and it is the highest threshold in Victorian bail law. If exceptional circumstances are established, the court then separately considers whether you are an unacceptable risk.

Most people charged with this offence are remanded. A bail application needs proper preparation, and you generally get one real attempt at it.

Pleading Not Guilty

Aggravated Carjacking is built in layers. The prosecution must prove the theft, then the carjacking, then the aggravating feature. Every layer has to be proved beyond reasonable doubt.

If you instruct us to fight the charge, we will go through the brief and consider matters such as:

• Whether you can be identified as the person involved.
• Whether you intended to permanently deprive the owner of the vehicle, or only to use it.
• Whether force or a threat of force was used in order to take the vehicle, and whether it happened immediately before or at the time of the taking.
• Whether you had a weapon with you at the time, as opposed to picking something up afterwards.
• Whether anything relied on as a weapon meets the legal definition.
• Whether any injury was in fact caused, and whether it was caused in the course of the carjacking.

Our firm has in-house counsel who appear in County and Supreme Court trials, so serious matters have lawyers working on them from an early stage.

Pleading Guilty

Do not plead guilty to this charge without advice. Aggravated Carjacking is a category 1 offence under the Sentencing Act 1991, so section 5(2G) requires a court to impose a custodial order. Section 10AD goes further and requires a term of imprisonment with a non-parole period of at least three years, unless the court finds a special reason under section 10A.

Our lawyers focus on negotiating the summary of offending, on whether the facts genuinely support the aggravating element or whether a plea to carjacking is available, and on assembling the material a court will want to see. That includes character references, evidence of your background and evidence of any treatment or courses completed. Where a special reason under section 10A may be open, expert reports may be needed.

On a charge with a mandatory minimum, the difference between a well prepared plea and a poor one can be measured in years.

Sentencing

Sentencing in the higher courts of Victoria

Source: Sentencing Advisory Council of Victoria (SACStat), Crimes Act 1958 (Vic) s 79A(1) — 107 charges across 80 cases, higher courts, 1 July 2019 to 30 June 2024.

These figures show that a custodial sentence is close to universal for aggravated carjacking. Every charge in this period resulted in either imprisonment or a youth justice centre order. The sentence will depend on factors such as the seriousness of the incident, the weapon involved, any injury caused, your age and your personal circumstances.

One thing to keep in mind is that all of these sentences were imposed while the maximum penalty was 25 years. The maximum is now life imprisonment, so these figures are unlikely to be a reliable guide to sentences for offences committed after that increase took effect

Which court will the case be heard in?

Aggravated Carjacking is a strictly indictable offence. It does not appear in Schedule 2 of the Criminal Procedure Act 2009, which lists the indictable offences a magistrate can deal with summarily. This is a real difference from plain carjacking under section 79, which is listed and can be heard in the Magistrates’ Court.

If the accused is a child, recent Victorian reforms have changed which court deals with serious youth charges, and aggravated carjacking is among the offences affected. Ask us how the current rules apply to your charge.

Examples of Aggravated Carjacking

• A person holds a knife towards a driver stopped at lights, tells them to get out, and drives off in the car.
• Two people pull a driver out of a car in a shopping centre car park and the driver’s wrist is broken in the struggle.
• A person takes a car from a service station forecourt after threatening the owner, while carrying something that looks like a handgun.

What is the legal definition of Aggravated Carjacking?

Under section 79A(1) of the Crimes Act 1958, a person commits an aggravated carjacking if the person commits a carjacking and either, 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.

The weapon words mean the same here as they do in section 77. An offensive weapon can be an ordinary object, depending on what you intended or threatened to do with it, and an imitation firearm is anything that looks like a gun even if it cannot be fired. “Injury” takes its meaning from section 15 and covers physical injury and harm to mental health. Fear on its own is not enough.

Did you have the weapon on you when it happened, or did you pick something up afterwards?

Legislation

The legislation for this offence can be found in section 79A of the Crimes Act 1958.

Elements of the offence

The prosecution must prove each of the following beyond reasonable doubt.

1. The accused committed a carjacking
2. Either a weapon, or injury caused

Defences

Possible defences include:

1. mistaken identity
2. a factual dispute about what happened
3. that you did not intend to permanently deprive the owner of the vehicle
4. that no force or threat of force was used in order to take it,
5. you did not have a weapon with you at the relevant time,
6. Duress
7. Running through all of it is the requirement that the prosecution prove every element beyond reasonable doubt.

Questions in cases like this

• Did you intend to keep the vehicle, or only to use it?
• Was force or a threat used in order to take it?
• Did you have anything on you at the time that the law would treat as a weapon?
• Was anybody actually injured, and did it happen during the carjacking?

Maximum penalty for section 79A of the Crimes Act 1958

Aggravated Carjacking (s79A of the Crimes Act 1958) is a strictly indictable offence carrying level 1 imprisonment, which is life imprisonment. The maximum was increased from 25 years to life by Act No. 54 of 2025.

Two further schemes apply on sentence.

Category 1 offence. Aggravated Carjacking is a category 1 offence under the Sentencing Act 1991. Section 5(2G) requires the court to impose a custodial order and prevents it from imposing imprisonment combined with a community correction order.

Statutory minimum non-parole period. Section 10AD requires the court to impose a term of imprisonment and fix a non-parole period of at least three years, unless it finds under section 10A that a special reason exists.

Other important resources

https://www.sacstat.vic.gov.au/hc-vic/aggravated-carjacking-6231-79a-1-hc.html