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A person who leads, takes or entices away or detains a person with intent to hold that person for ransom or for any other advantage to any person is guilty of the offence of kidnapping.

The Offence of Kidnapping

Kidnapping is found at Section 38 of the Crimes Act 1900 (ACT).

On conviction, an offender faces a maximum penalty of 20 years’ imprisonment if the victim suffers any grievous bodily harm while being led, taken or enticed away, or detained.

In any other case, the maximum term of imprisonment is 15 years.

What Actions Might Constitute Kidnapping?

  • Detaining someone against their wishes;
  • Transporting someone somewhere against their wishes;
  • Taking a child in contravention of a Parenting Order made by a court.
  • That this was done for financial or other advantage. While financial advantage is easy to recognise, “any other advantage” is not defined in the legislation. It could include a case, for example, where two Crown witnesses in a forthcoming trial were kidnapped and forced to sign statements retracting the evidence that they were to give at trial. It could include kidnapping for sexual favours or detaining someone until they provided details of people or events sought by a kidnapper, or holding someone to make them hand over drugs or some other commodity.

What the Police Must Prove

To convict you of the basic kidnapping charge in section 38, the police or prosecutors must prove each of the following matters beyond a reasonable doubt:

  • You took or detained a person; and
  • This was done without the consent of that person; and
  • This was done with the intention of either holding the victim to ransom or obtaining any other advantage.

If seeking to expose you to the longer prison term, they must prove, again beyond reasonable doubt, that grievous bodily harm was inflicted. Grievous bodily harm is more serious than actual bodily harm, which is the standard for an aggravated form of the offence in other jurisdictions, such as NSW.

Possible Defences for Kidnapping

Possible defences to a kidnapping charge are:

  • The accused is the parent of the victim if the victim is a child (and the act alleged in not a contravention of an order of a court regarding the child)
  • The accused is acting with the consent of the victim’s parents if the victim is a child.

Which Court Will Hear Your Matter?

Kidnapping is strictly indictable which means that it can only be finalised in the Supreme Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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