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:

  1. That [the accused] detained [the alleged victim]
  2. 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:

  1. 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;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. 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
  4. 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

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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