The taking or carrying away of someone by force or fraud without the consent of that person and without a lawful excuse constitutes the criminal offence of kidnapping.

 

THE LAW

Section 86(1) of the Crimes Act 1900 set out the offence stating:

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.

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.

 

Maximum/Possible Penalties

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.

In NSW, a court can impose any of the following penalties for a Kidnapping charge of:

1. Full time Imprisonment
2. Intensive Corrections Order (ICO)
3. Community Correction Order (CCO)

 

THE FACTS THAT MUST BE PROVEN

Since Kidnapping is a criminal offence, the burden of proof lies on the Prosecution. 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

3. [the accused] did so with the intention of obtaining an advantage by that detention.

 

Defences

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.

 

CHOICES AT LAW OPTIONS

For Kidnapping, Rep-Revive Criminal Lawyers® offers the following options:

1. We initiate negotiation with prosecutors (police/DPP) (a term referred to as “plea negotiations”) and plead to withdrawal or downgrade of the charge or alternatively, seek amendments to the police fact sheets or documents.
2. At the hearing/trial, Rep-Revive Criminal Lawyers® shall if you so instruct Plead Not Guilty and drive the argument based on prosecution’s inability to prove the elements of their accusation.
3. Alternatively, Rep-Revive Criminal Lawyers® may plead guilty on your instructions however, the hearing shall revolve around the facts with an objective to obtain a moderate or minimum punishment.
4. Lastly, Rep-Revive Criminal Lawyers® on your instructions enter a plea of guilt where you accept all the charges pressed by the police, but we present a case so solid on your behalf, with an objective to persuade and convince the Court to not record a criminal conviction against you.

For further information on your choices at law click on (CHOICES AT LAW tab on our website)

 

WHY REP-REVIVE CRIMINAL LAWYERS®

There are several reasons to engage Rep-Revive Criminal Lawyers®:

•  We are always in your corner

At Rep-Revive Criminal Lawyers® we understand the gravity of a criminal charge on your reputation. Thus, we work with the utmost diligence and fervour to restore any dints to our client’s repute. We fight for your rights and liberty earnestly, and for the best results, irrespective of the intensity of the matter. All these factors have made us known in the industry as always being in our client’s corner. 

•  We bring about excellent results

Rep-Revive Criminal Lawyers® is driven by positive outcomes and defend your case with skills which have been sharpened by years of experience. You will be dealing with lawyers who are proficient at their craft and will defend your case with rigour and an aim to have the matter withdrawn, downgraded, dismissed or the minimal penalty available at law imposed.

Rep-Revive Criminal Lawyers® are adept in all forms of advocacy and will present your case in the most skilful manner in Court. 

• Your case will be in the hands of an experienced lawyer

Irrespective of your decision in deciding the course of the case, you will be supported and guided by Rep-Revive Criminal Lawyers® who have been in the provision of legal service for over 21 years. 

If you are caught up in this charge our team at Rep-Revive Criminal Lawyers® are best suited for representing your case.

Please contact our office on 0419 998 398 or 0492 857 721 or email info@rpr5.sydney for more information. The first consultation is free.