What is Kidnapping-Take/Detain person for advantage ?
Kidnapping consists of taking or carrying away someone by force or fraud without the consent of that person and without a lawful excuse.
Case law/Jurisdiction
An offence of Kidnaping is a serious criminal offence which can only be tried at Higher Courts (District or Supreme Court) on indictment by the Director of Public Prosecutions (DPP).
The nature and elements of the offence for sentencing of Kidnapping together with the legal principles were considered in R v Speechley [2012] NSWCCA 130.
Furthermore, the court in R v Newell [2004] NSWCCA 183 at [32] identified factors relevant to the seriousness of a given offence under s 86 which include:
the period of the detention
the circumstances of the detention
the person being detained, and
the purpose of the detention.
What must the prosecution prove?
Since Kidnapping is a criminal offence, the burden of proof lies on the Prosecution.
The prosecution must prove the Accused’s guilt beyond reasonable doubt.
That is a high standard of proof that the prosecution must achieve before someone can be convicted of Kidnapping.
To establish Kidnapping, the prosecution must prove each of the following matters beyond reasonable doubt:
- That [the accused] detained [the alleged victim]
- knowing that [he/she] was not consenting to that detention; and [the accused] did so with the intention of obtaining an advantage by that detention.
The Law
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.
The offence 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.
If you are charged with the offence of kidnapping what are your options?
National Criminal Lawyers have been successful in defending a number of Kidnapping charges where the prosecution could not establish each of the elements of Kidnapping.
NCL offer the following options for those who have been charged with Kidnapping:
- We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
- NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
- Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
- Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.
Fequently Asked Questions
If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.
Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.
Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining the best result.
In a non-aggravated cases Kidnapping can be punished with a maximum imprisonment of 14 years. Cases which are “Aggravated” Such as those done “in company” of another person or persons or if the victim sustains actual bodily harm carries a maximum Imprisonment of 20 years whereas specially aggravated cases carries a period of imprisonment for up to 25 years.
Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.
If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.
A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.
National Criminal Lawyers have defended several people charged with Kidnapping and are experts at these hearings.
Some of the possible defences available for those charged with Kidnapping can include:
- Duress-If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”
- Necessity – If your actions were necessary to prevent a greater harm from occurring, you may have the defence of-Necessity.
- Self-defence – If you were defending yourself or another OR yours or another’s property you may have a Defence of Self-Defence even in situations where “Pre-Emptive Force” is used. Moreover, at times there “No duties or need to retreat”.
- You are the parent of the victim if the victim is a child (only if not in contravention of a order of a Court regarding the child); Or
- You are acting with the consent of the victim’s parents if the parent is a child.
In NSW, a court can impose any of the following penalties for a Kidnapping charge.
1)Prison sentence
2)Home Detention
3)Intensive correction order (previously periodic detention)
4)Suspended sentence
5)Community service order (CSO)
However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:
1)Full time Imprisonment
2)New ICO (ICO) with a home detention condition available
3)New Community Correction Order (CCO)
Our client aged 36 from Bondi was charged with 1 count of detain person for advantage pursuant to section 86 of the Crimes Act 1900 (NSW). The allegation was that our client, an uber driver, had taken an intoxicated female to his home with the intention of committing a serious indictable.
The maximum penalty for the offence is 14 years imprisonment.
The offence is a strictly indictable offence meaning it proceeds through the early appropriate guilty plea (‘EAGP’) process.
During the case conference, our office revealed to the Director of Public Prosecutions (‘DPP’) dash cam footage that showed the complainant to be touching and kissing our client’s body as he was driving. It was the complainant that was shown to be very sexual, while our client numerous times pulled away and attempted to maintain professionalism. This version of events was to the stark contrary to the version the complainant had provided to police. The complainant had described herself as being very scared and frightened when they were travelling in the car.
Following the DPP reviewing the footage and making further inquiries, our office was formally informed the charge would be withdrawn at the case conference mention. This was a fantastic result for our client in circumstances where for a period of time he was under tremendous stress.
Why National Criminal Lawyers?
There are three reasons to choose National Criminal Lawyers:
1. Your best chance to get the result you’re after
We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.
2. How a Senior Defence Lawyer Can Help You Deal With Criminal Charges
No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.
3. National Criminal Lawyers are the best defenders of your rights
At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.
If you have been charged with any Kidnapping offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.
Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.
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