Criminal law
Stealing a motor vehicle in NSW
The difference between taking a car and stealing one is whether you intended to keep it, and it is worth five years. The difference between driving it and sitting in it is smaller than most passengers expect, because being carried in a vehicle you know was taken is an offence in its own right. For anyone under eighteen there is a further problem, because a strict bail test applies to these charges.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Our lawyers include former prosecutors. We appear in Local Courts across New South Wales and in the District Court, and we can attend a police station.
The offences
| Offence | What it requires | Maximum penalty |
|---|---|---|
| Taking a conveyance without consent | Taking or driving a vehicle without the owner’s consent, or being carried in one knowing it was taken. No intention to keep it. This is what is usually meant by joyriding | 5 years |
| Stealing a motor vehicle, vessel or trailer | The same taking, but intending to permanently deprive the owner | 10 years, or 2 years and an $11,000 fine if dealt with in the Local Court |
| Car-jacking | Taking a vehicle from a person by force or the threat of force | 10 years |
| Aggravated car-jacking | The same, with an aggravating feature such as a weapon, being in company, or injury inflicted | 14 years |
Stealing a motor vehicle can be finalised in the Local Court unless the prosecution or the defence elects to take it to the District Court, which keeps the ceiling at two years rather than ten. Car-jacking is a robbery offence and goes to the District Court. More on robbery and armed robbery.
Joyriding or stealing, and why it is frequently arguable
Both offences involve taking a vehicle without consent. The only thing separating them is the intention to permanently deprive the owner, and that intention has to exist at the time of the taking.
Where a car was taken, driven and then abandoned, the prosecution has to establish that you intended never to return it. Abandoning a vehicle a few streets away, leaving the keys in it, or leaving it undamaged and findable all cut against that. Where it was stripped, re-plated, hidden or sold, they do not.
Five years of exposure turns on this point. It is one of the more commonly overcharged distinctions in property law, and it is worth having someone examine before a plea is entered to the more serious offence. Where the evidence of intention is thin, the appropriate charge is the lesser one.
Taking a conveyance without consent is treated as larceny for the purposes of the Act, so the general principles of stealing apply to it. More on larceny.
Passengers
Allowing yourself to be carried in a vehicle you know was taken without the owner’s consent is an offence carrying the same five years as taking it. You do not have to have driven it, planned it, or been present when it was taken.
The element that has to be proved is knowledge. Getting into a friend’s car and later discovering something is wrong is a different position from getting in knowing where the car came from, and what was said, when you got in, and how the vehicle was being driven are all part of the evidence on that question.
This charge catches a very large number of young people who did not take anything and did not drive anything, and it is frequently the point at which a group matter becomes an individual one.
Bail, and the strict test for young people
A temporary provision applies an additional bail test to young people aged fourteen to seventeen who are charged with certain motor theft offences, serious break and enter offences, or a related performance crime offence, while already on bail for an offence of that kind.
Where it applies, bail must be refused unless the court has a high degree of confidence that the young person will not commit a serious indictable offence while on bail, meaning an offence punishable by five years or more. That is a materially higher bar than the ordinary test, and the refusal rate under it has been roughly double the general rate for young people charged with similar offences.
- It applies only where the young person was already on bail for a relevant offence at the time of the alleged offence
- The relevant offences include stealing a motor vehicle and taking a vehicle with an occupant on board
- The provision is temporary and subject to a sunset date, and it has already been extended once
What this means in practice. A second charge for a young person on bail changes the entire complexion of the matter, and the bail application has to be prepared rather than run on the day. Accommodation, supervision, schooling or work, and a realistic set of conditions are what displace the test. That takes time to assemble, so the call needs to happen immediately rather than after the first mention.
Defences and arguments
Consent
You had permission, or honestly believed you did. This arises constantly between family members, partners, flatmates and employees with access to a work vehicle, and the owner’s later change of mind does not retrospectively remove consent that existed at the time.
No intention to permanently deprive
The argument that reduces stealing a vehicle to taking a conveyance, and takes the exposure from ten years to five.
No knowledge, for passengers
You did not know the vehicle had been taken. Knowledge has to be proved and it cannot be inferred simply from being in the car.
It was not you
These matters are built on CCTV, number plate recognition, fingerprints, DNA and phone data. Forensic material establishes that you were in contact with the vehicle, not when or in what circumstances.
Duress
You acted under threat. It arises regularly where a group is involved and one person was pressured into driving or into getting in.
Claim of right
An honest belief that you were legally entitled to the vehicle. It comes up in disputes over jointly owned cars, unpaid debts and vehicles held as security.
Related charges frequently laid alongside these include goods in custody where parts or property are found, and driving offences where the manner of driving is in issue. More on goods in custody. More on police pursuit charges.
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, and a well-prepared sentencing is what produces the best available outcome.
Dismissal without conviction
No conviction recorded and no further penalty. The matter is finalised as you leave court.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, abstinence, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan. Non-payment leads to enforcement, which can include licence and registration suspension.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision, which can include home detention, electronic monitoring and curfews. Breaches go to the State Parole Authority rather than the court and often result in serving the balance in custody.
A word on written pleas of guilty. Police sometimes hand you a form allowing you to plead guilty in writing without attending. It looks convenient and it is usually a mistake. On a written plea the magistrate has only the police fact sheet and your record, and knows nothing about you or anything mitigating. It is also important that you agree with what the fact sheet says before it is tendered, because the court sentences on that document, and in these matters the fact sheet often asserts an intention to keep the vehicle that the evidence does not establish.
Where the offending is driven by dependency, or by a group dynamic in a young person’s life, evidence of genuine engagement with treatment or support, started early and documented, carries real weight. Restitution for damage, where it can be made, matters too.
Common questions
I only took it for a drive and left it. Is that stealing?
Probably not the ten year offence. Stealing a vehicle requires an intention, at the time of taking, to permanently deprive the owner. Taking it and abandoning it findable and undamaged is taking a conveyance without consent, which carries five years. If you have been charged with the more serious offence, that is the first thing to look at.
I was just a passenger.
Being carried in a vehicle you know was taken without consent is an offence carrying the same five years as taking it. The element the prosecution has to prove is knowledge, and that is often where these matters are won. What you were told when you got in, and what you did once you knew, both matter.
It was my partner’s car and I had driven it before.
Consent, or an honest belief in it, is a defence. Prior permission, shared use and joint ownership all bear on that, and an owner who becomes angry afterwards has not removed the consent that existed at the time. These matters arise frequently after a relationship breaks down and they are often better resolved than defended in a trial.
My son is under eighteen and was refused bail.
If he was already on bail for a similar offence, a stricter test applies and the court has to have a high degree of confidence he will not commit a serious offence while on bail. That is a high bar, but it is displaced by a properly prepared application: accommodation, supervision, schooling or work, and realistic conditions. Contact us straight away rather than waiting for the next mention.
Police found my fingerprints in the car.
Forensic material shows that you were in contact with the vehicle. It does not show when, or in what circumstances, and there is frequently an innocent explanation. It also has to be properly collected and the continuity established. It is evidence to be examined rather than conceded.
Will I lose my licence?
Not automatically for the theft offence itself, but where driving offences are charged alongside it, disqualification is a real prospect. If a pursuit or dangerous driving is involved, that is a separate and serious matter with its own consequences.
Police want to interview me.
You are not obliged to answer questions beyond providing your name and address. In these matters the case usually turns on identification and on intention, and an explanation given at the station tends to supply both. Get advice first.
What should I bring to a first appointment?
The court attendance notice, the police fact sheet, any bail conditions, and the names of anyone else charged. Anything showing your relationship to the vehicle or its owner is worth bringing. If you have none of it, come anyway.
Five years turns on one word in the charge
Whether the allegation is that you took the vehicle or stole it changes the maximum, the court and the outcome, and it is regularly arguable. If a young person is in custody, call us today rather than tomorrow.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. We appear in Local Courts across New South Wales and in the District Court. Courts we appear in.