Carjacking

Have you been charged with Carjacking? This is a serious charge with strict bail rules and a real risk of imprisonment. Call our office to arrange a conference with one of our criminal defence lawyers.

Police Interview

Police will normally want to interview you if they believe you were involved in a carjacking. By then they usually hold CCTV, telephone data, forensic material or a statement from the driver.

You have the right to say “no comment” to police questions, apart from giving your name, address and date of birth. Anything you say can be used against you. However what to do in an interview is often complex.

Carjacking charges often involve more than one accused person, and what one person says in an interview can affect everybody. Get advice before you interviewed. We can attend the police station with you.

Bail

Carjacking is a Schedule 1 offence under the Bail Act 1977. It was moved into Schedule 1 by amendments that commenced on 26 August 2025, alongside armed robbery, aggravated burglary and home invasion.

Schedule 1 puts the onus on you. Bail cannot be granted at all unless you first establish exceptional circumstances, which is the strictest test in Victorian bail law. Clear that, and the decision maker still moves to a second question, whether releasing you would create an unacceptable risk. Speak to a lawyer before anything goes in.

Pleading Not Guilty

Carjacking is built on top of theft, so the prosecution has to prove the ordinary elements of stealing as well as the elements that make it a carjacking. That gives a defence team several places to look.

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

• Whether you can be identified as the person who took the vehicle.
• Whether any force or threat was used, and whether it was used in order to take the vehicle rather than for some other reason.
• Whether the force or threat happened immediately before or at the time of the taking.
• Where the charge relies on a child being in the vehicle, whether the child was actually inside and under 10.
• Whether police disclosure is complete, and whether material should be subpoenaed from third parties.

Our firm runs many trials in the County Court, so we are used to and experience in handling serious matters.

Pleading Guilty

Get advice before pleading guilty. Carjacking is a category 2 offence under the Sentencing Act 1991, which means a court must impose a custodial order unless one of a limited set of exceptions in section 5(2H) applies.

Where the evidence is strong, there is still real work to do. We may be able to negotiate with the prosecution about the summary of offending, about your role compared with any co-accused, or about resolving the matter to a lesser charge. We will also help you assemble the material a court will want to see, including character references, evidence of your circumstances, and evidence of any counselling, treatment or courses you have completed. On a charge like this, whether the matter stays in the Magistrates’ Court can make a very large difference to the outcome.

Sentencing

Sentencing outcomes in the higher courts of Victoria

Source: Sentencing Advisory Council of Victoria (SACStat), Crimes Act 1958 (Vic) s 79(1) — 69 charges across 42 cases, higher courts, 1 July 2019 to 30 June 2024.

These figures show that imprisonment is the usual outcome for carjacking in the higher courts. Community correction orders and youth justice centre orders are imposed in a small number of cases. The sentence will depend on factors such as the seriousness of the incident, the level of violence involved, your age and your personal circumstances.

Sentencing outcomes in the Magistrates’ Court of Victoria

Source: Sentencing Advisory Council of Victoria (SACStat), Crimes Act 1958 (Vic) s 79(1) — 42 charges across 42 cases, Magistrates’ Court, 1 July 2020 to 30 June 2023.

Imprisonment is the most common outcome in the Magistrates’ Court as well, though a wider range of sentences is imposed there than in the higher courts.

Which court will the case be heard in?

Carjacking is an indictable offence, but it is listed in Schedule 2 of the Criminal Procedure Act 2009, which means it can be heard and determined summarily in the Magistrates’ Court.

More serious matters, and matters charged alongside offences that cannot be heard summarily, will go to the County Court after a committal proceeding.

Examples of Carjacking

• A person opens a driver’s door at a set of lights, pulls the driver out and drives off in the car.
• A person approaches someone in a car park, tells them they will be hurt if they do not hand over the keys, and takes the car.
• A person takes a car from a driveway while the engine is running and a young child is strapped in the back seat.

What is the legal definition of Carjacking?

Under section 79(1) of the Crimes Act 1958, a person (A) commits a carjacking if A steals a vehicle and either, immediately before or at the time of doing so and in order to do so, A uses force on another person or puts or seeks to put another person in fear that they or anyone else will then and there be subjected to force, or a child under the age of 10 is in the vehicle when A steals it.

Section 79(1A) provides that for the child limb it does not matter whether A knew the child was in the vehicle.

Legislation

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

Elements of the offence

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

1. The accused stole a vehicle
2. Either force or a threat of force, or a child under 10 in the vehicle

Defences

Possible defences to this charge include;

1.  mistaken identity,
2. a factual dispute about what happened,
3. no force or threat of force was used

Underlying all of it is the requirement that the prosecution must prove every element beyond reasonable doubt.

You should ring us and discuss your case if you have been charged. Whether to plead guilty or not guilty, and whether to seek a summary hearing, are decisions that should be made after proper discussion with a criminal lawyer.

Questions in cases like this

• Was any force or threat used, and was it used in order to take the vehicle?

• Did anything happen before or during the taking, or only afterwards?
• Was there anyone else in the vehicle at the time?

Maximum penalty for section 79 of the Crimes Act 1958

Carjacking (s79 of the Crimes Act 1958) carries level 4 imprisonment, which is a maximum of 15 years. If the matter is heard summarily in the Magistrates’ Court, that court’s sentencing powers are far lower.

Carjacking is also a category 2 offence under the Sentencing Act 1991. Under section 5(2H), a court must impose a custodial order and cannot impose imprisonment combined with a community correction order, unless one of a limited set of exceptions applies. Those exceptions cover assistance to law enforcement, impaired mental functioning, a proposed treatment order, and circumstances that are substantial, compelling, exceptional and rare.

Other important resources

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