Kidnapping

The Law

Section 86(1) of Crimes Act 1900 (NSW) 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.

Jurisdiction / Case Law

An offence of Kidnapping is a serious criminal offence that 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.

To establish Taking/ Detaining a Person for Advantage, 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.

If you are charged with the offence of Kidnapping, what are your options?

National Criminal Lawyers (NCL) have been successful in defending many Kidnapping charges where the prosecution could not establish each of the elements to the required threshold of beyond reasonable doubt. We have also achieved several non-convictions for these charges for those who are found guilty or plead guilty.

It is for that reason that National Criminal Lawyers are the preferred specialist criminal solicitors in Sydney.

Our Senior Criminal Defence Lawyers, headed by Michael Moussa, one of Sydney’s Best Criminal Lawyers, will ensure that your case is closely examined to achieve the best of results.

NCL offer the following options for those who have been charged with Take/Detain a Person for Advantage:

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 the 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.

Please contact us now for more information about your options.