What is Kidnapping?

Kidnapping is an offence under section 81 of the Crimes Act 1900 (NSW). The basic offence applies where a person takes or detains another person without their consent with the intention of:

• holding the person to ransom;
• committing a serious indictable offence; or
• obtaining some other advantage.

The “advantage” does not have to be financial. It may include any benefit or outcome the accused intended to obtain by taking or detaining the other person.

Elements of a Kidnapping Offence

To prove kidnapping, the Prosecution must establish each required element beyond reasonable doubt.

1. The Victim Was Taken or Detained

The Prosecution must prove that the accused took or detained another person.

2. The Victim Did Not Consent

The Prosecution must establish that the taking or detention occurred without the person’s consent.

3. The Accused Had the Required Intention

The Prosecution must prove that the accused intended to:

• hold the person to ransom;
• commit a serious indictable offence; or
• obtain another advantage.

Without the required intention, the offence of kidnapping may not be established.

Aggravated Kidnapping

The offence becomes more serious where aggravating circumstances are present.

Aggravated kidnapping may involve:

• committing the offence in the company of another person; or
• causing actual bodily harm to the victim at the time of, immediately before, or immediately after the offence.

A more serious form applies where the offence is committed both in company and where actual bodily harm is caused.

What Are the Penalties for Kidnapping?

The maximum penalty depends on the seriousness of the offence.

For the basic offence under section 81, the maximum penalty is 14 years imprisonment.

For aggravated kidnapping, the maximum penalty increases to 20 years imprisonment.

Where the offence is committed in company and actual bodily harm is caused, the maximum penalty increases to 25 years imprisonment.

The sentence imposed will depend on factors including:

• how long the person was detained;
• whether violence was used;
• whether weapons were involved;
• whether the offence was committed with other people;
• whether the victim suffered injury;
• the reason for the detention;
• the accused person’s criminal history; and
• whether the matter proceeds as a guilty plea or trial.

Pleading Guilty

If you plead guilty to kidnapping, the matter will proceed to sentencing.

The Court will consider the seriousness of the offence, any harm caused to the victim, your criminal history, personal circumstances, rehabilitation and any remorse shown.

A guilty plea may also be taken into account when determining the appropriate sentence. Your lawyer can prepare sentencing material and make submissions aimed at achieving the most favourable outcome available.

Pleading Not Guilty

If you plead not guilty, the Prosecution must prove every element of the offence beyond reasonable doubt.

Your lawyer may challenge issues such as:

• whether the person was actually taken or detained;
• whether the person consented;
• whether the accused had the required intention;
• whether the alleged victim suffered actual bodily harm;
• whether the offence was committed in company;
• the reliability of witness evidence; and
• inconsistencies in the Prosecution case.

If the Prosecution cannot prove the offence beyond reasonable doubt, you should be found not guilty.

Defending a Kidnapping Charge

Depending on the circumstances, possible defences or issues may include:

• consent;
• lack of the required intention;
• mistaken identity;
• disputing that any detention occurred;
• duress;
• necessity; or
• challenging the reliability of the Prosecution evidence.

Every kidnapping matter is different and requires careful consideration of the specific allegations and evidence.

Which Court Will Hear a Kidnapping Matter?

Kidnapping is a serious indictable offence and is generally dealt with in the District Court of NSW or, in appropriate cases, the Supreme Court of NSW.

Your lawyer can advise you about the court process and what to expect at each stage.

How We Can Help

At Chidiac & Associates, we understand the seriousness of a kidnapping allegation and the impact it can have on your liberty, reputation and future.

We can assist by:

• reviewing the police brief and evidence;
• advising you about your plea and legal options;
• examining whether the Prosecution can prove the required intention;
• identifying possible defences;
• challenging witness and forensic evidence;
• negotiating with prosecutors where appropriate;
• seeking withdrawal or reduction of charges where available;
• representing you at all court appearances; and
• preparing your matter for trial or sentencing.