If the judge believes that the aggravating circumstances outweigh the mitigating features, they can raise the sentencing range to six to 30 years. In exceptional cases, a whole life term may be imposed. Therefore, it is clear that this is the type of offense in which the court has wide discretion. It also means that the defendant will require first-class legal representation in order to bring the categorization down to the lowest end of the seriousness scale.
Procedural and Substantive Considerations in the Legal Framework
The defendant’s criminal record is of the utmost importance because the district attorney will want to prove propensity and proclivity for violence. In turn, they will want to highlight any public safety issues that the case raises. If the direct victim is already a vulnerable person, then it is likely that the court will increase the sentence. There are three critical issues that will be examined by both the prosecution and the defense as established in People v Clark:
- What was the intent of the defendant? Did they intend to cause harm or was it an accidental event? How much harm did they intend to cause? Was it an opportunistic crime?
- How much control was the defendant exercising? Did they act on their own? Were they under the influence of any mind-altering substances? What was the age of the defendant at the time? Do they have any mental health conditions that would explain their behavior?
- How much force was used? Was this an unusually violent crime? How did it affect the victim? Were they allowed to escape? Did the defendant demonstrate any level of remorse after the event? Did they make any attempts at restitution?
The development of an effective defense is a deliberate process that takes into account both the relevant law and the specific circumstances of the case. It is best to first define the key ingredients of the crime including:
- The unauthorized taking of a motor vehicle.
- The fact of that action in the presence or absence of the victim.
- The use of some level of force.
- Threats to use force imminently.
Typically, the defense will try to argue that either the defendant had permission to take the vehicle or alternatively that he or she did not take the vehicle at all. The presence of scientific forensic evidence will be critical in determining the strategy that the defense is likely to adopt.
Points of Contention
In any given case, there are key definitions that will always come up for review and contestation. First of all, the prosecutor must establish that the vehicle was taken. Normally this is through driving and rarely through towing. Secondly, there is a requirement for the vehicle to be taken directly in the presence of the victim or another party. The courts spend a lot of time arguing about the notion of “immediate presence.”
Of course the courts have other remedies or prosecutorial powers for alternative crimes if immediate presence cannot be established. A case in point is the use of grand auto theft as an alternative offense. The courts will also consider the proximity of control. Added to this is the notion of the use of violence or threats of violence in order to prevent the victim from stopping the hijack. Call David Freidberg Attorney at Law right now at 312-560-7100 to get the legal help you need today.
(image courtesy of Ant Rozetsky)