Kidnapping -Taking or holding a person against their will is seen as an extremely serious offence in New South Wales and all jurisdictions in Australia. There are many factors which may be taken into account by a court which increase the seriousness of the offence of kidnap and in turn may result in a significant penalty such as a long period of full time imprisonment.
Under Section 86 of the Crimes Act NSW 1900 it is an offence in New South Wales to kidnap a person. The definition of kidnap is taking or detaining a person without that person’s consent. The person committing the act of kidnap must have either the intention to hold the person to ransom, commit a serious indictable offence or obtain any other advantage. If a person is found guilty of this offence they are liable to imprisonment for 14 years.
For a person to be found guilty of committing kidnap with the intention of committing a serious indictable offence, the offence must have occurred on or after 24 September 2012. The term ‘serious indictable offence’ refers to an offence that is punishable by imprisonment for life or for a term of five years or more.
Under Section 86 there are a number of factors which if proved to have been committed by the accused person, increase the seriousness of the offence which may lead to a more severe punishment in the event an accused person is found guilty and sentenced. If a person kidnaps another person in the company of one or more others, or causes physical harm to the person kidnapped, this increases the seriousness of the offence. If a person is found guilty of kidnapping a person and only one of these factors occurs, they may be liable for 20 years imprisonment.
If a person is found guilty of kidnap and they are found to have committed the offence in the company of one or more others and the victim is physically harmed, a person convicted is liable to imprisonment for 25 years.
Where a person attempts to commit a kidnap however does not succeed in committing the offence, they may be charged with attempting to kidnap a person. The fact that an accused person failed to commit the offence does not necessarily mean the seriousness of the offence is less than where a person succeeds in committing the offence. In other words, they may receive a sentence just as harsh as if they had succeeded in committing the act.
There are a number of relevant factors which determine the seriousness of the offence and in turn will guide a judge in sentencing a convicted person. These include but are not limited to the length of time the person kidnapped is detained against their will, the circumstances of the detention, the identity of the person being detained and the purpose of the detainment.
If, for example, it is proved that there was a threat of violence from the offender during the commission of the offence, or the presence of a weapon, this may increase the seriousness of the offence. It is not necessary for there to be actual violence or use of a weapon for the seriousness to be increased.
The fact that a person is known to the offender does not lessen the seriousness of an offence of kidnap. For example, if a husband takes or holds his wife against her will and she is deprived of her liberty for a period of time, this is just as serious as an offender taking or holding a person unknown to them and depriving them of their liberty for a period of time.
Further, if the offence is committed in the context of a person who is known to act violently towards partners, friends, family or strangers, this may increase the seriousness of the offence and the penalty the court may impose on an offender.
Courts have taken the view that where a person is convicted of kidnap under Section 86, it is mostly appropriate for the convicted person to be imprisoned. In other words, where a person is found guilty of this offence, it is very difficult to convince a court that the offender should not be imprisoned. Courts consider this and related offences to be among the most serious of offences, and so sentencing options for a judge will be limited.
This and related offences require proper and admissible evidence in order for the offence to be proved beyond a reasonable doubt. Where a person is charged with this or a related offence it is vital the evidence is properly tested in order to ensure the fairest outcome is achieved for an accused person.
For this reason it is essential a person charged with Kidnapping – Detaining A Person Without Consent requires expert legal representation. It is in the best interests of an accused person to have expert legal representation in order to ensure a case is heard properly.
Case Study – Not Guilty Verdict Detain A Person Without Consent