Kidnapping (NSW)

In New South Wales, kidnapping is a serious offence. It is dealt with in the District Court and can carry a maximum penalty of 14 to 25 years imprisonment depending on the circumstances.

The legislation

The offence of Kidnapping is contained in section 86(1) of the Crimes Act 1900, which states:

A person who takes or detains a person, without the person’s consent:

with the intention of holding the person to ransom, or
with the intention of committing a serious indictable offence, or
with the intention of obtaining any other advantage,

is liable to imprisonment for 14 years.

Circumstances of aggravation

The offence of kidnapping is aggravated if it is committed in the company of another person or persons, or if actual bodily harm was occasioned to the alleged victim at the time of, or immediately before or after the kidnapping. The maximum penalty is 20 years in these circumstances.

The offence is specially aggravated if it is committed in both the company of another person or persons, and if actual bodily harm was occasioned to the alleged victim at the time of, or immediately before or after the kidnapping. The maximum penalty is 25 years in these circumstances.

What actions may constitute kidnapping?

A person may be charged with kidnapping if they do any of the following.

Detain someone against their wishes;
Transport someone somewhere against their wishes;
Take a child in contravention of a Parenting Order.

What must be proven

To convict e person of kidnapping under section 86(1), the police must prove each of the following matters beyond a reasonable doubt:

the accused 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.

To convict a person of aggravated kidnapping, the prosecution must also prove either of the following:

that they were in the company of a person or persons; or
Immediately before, at the time of, or immediately after the commission of the offence actual bodily harm was occasioned to the victim.

To convict a person of specially aggravated charge, the prosecution must prove both of the following:

that they were in the company of a person or persons; and
Immediately before, at the time of, or immediately after the commission of the offence actual bodily harm was occasioned to the victim.

Possible defences

Possible defences to a kidnapping charge include

That the offence was committed under duress
That the accused was the parent of the victim and the victim was under the age of 18. However, this defence is not arguable if the offence occurred in contravention of a Court Order.
The accused was acting with the consent of the victim’s parents and the victim was a child.