Criminal Offences

Kidnapping

Kidnapping is the taking or detaining of a person without their consent with the intention of holding to victim to ransom or for obtaining any other advantage. This crime is found under section 81 of the Crimes Act 1900 (NSW) which states that:

    1. Basic Offence: A person who takes or detains a person, without the person’s consent:
      1. With the intention of holding the person to ransom, or
      2. With the intention of committing a serious indictable offence, or
      3. With the intention of obtaining any other advantage,

is liable to imprisonment for 14 years.

  1. Aggravated Offence: A person is guilty of an offence under this subsection if:
    1. The person commits an offence under subsection (1) in the company of another person or persons, or
    2. The person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

  1. Specialty aggravated offence: A person is guilty of an offence under this subsection if the person commits an offence under subsection (1):
    1. In the company of another person or persons, and
    2. At the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

A person convicted of an offence under this subsection is liable to imprisonment for 25 years.

It is also important to be aware that obtaining an advantage is not solely limited to a monetary payment, and any advantage whereby a person has been unwillingly detained equates to the crime of kidnapping.

PENALTIES

As per section 81 of the Crimes Act 1900, kidnapping is a serious crime with potentially significant penalties. The basic offence of kidnapping attracts a maximum penalty of 14 years imprisonment, while kidnapping in circumstances of aggravation can attract a maximum penalty of 20 years imprisonment. Furthermore, if the offence is further aggravated, whereby the offence occurs in the company of at least one other individual and actual bodily harm is inflicted on the victim, the offender is liable to imprisonment for 25 years.

However, in NSW the Court has the ability to inflict alternative penalties in appropriate circumstances. To be eligible, the Court will consider the nature of the crime, personal character, criminal history and individual circumstances to determine whether you should receive the maximum penalty or a lesser sentence. Upon consideration, the Court may determine that less significant penalties such as Community Service Orders (CSOs), Intensive Corrections Order (ICOs), good behaviour bonds or fines may be appropriate in this instance.

For more accurate advice in relation to the penalties that relate to your specific case should you be facing charges of kidnapping, contact our expert criminal defence lawyers for a FREE first consultation.

GUILTY

For you to be convicted of kidnapping, it is up to the prosecution to prove the following beyond a reasonable doubt:

  • That you took another individual without their consent, and
  • You held the victim to ransom, or
  • You held the victim in order to obtain advantage

If the prosecution is aiming to convict you of aggravated kidnapping, they also must establish the following points beyond a reasonable doubt:

  • That the act was undertaken in the company of at least another person, and/or
  • Actual bodily harm was inflicted on the victim, immediately before, during or immediately after the act.

If you believe these allegations to be true and the prosecution are successfully able to prove these claims, you have the option to plead guilty. In this instance, the case will then proceed to sentencing whereby you will be liable to the relevant penalties as outline above.

Although this will mean that you may be liable to the penalties outlined above, the Court may also reward those who plead guilty with less serious sentence after considering the facts of the case, any previous criminal history, personal circumstances and other relevant factors. A guilty plea typically shows remorse and regret for the actions that resulted in the charge, which is seen favourable in the eyes of the Court.

NOT GUILTY

You also have the option to plead not guilty to the charge of kidnapping. If this is the case, the prosecution team must prove beyond reasonable doubt that you did commit the offence as per section 81 of the Crimes Act 1900. If it can be proven, it is likely that you will be convicted as per the penalties listed above.

However, at Benjamin Leonardo – The Defenders, our Sydney based criminal lawyers have achieved successful results for clients in such situations. In order to avoid conviction, our criminal defence lawyers will challenge the allegations set out against you, by arguing the following defences. If we are able to successfully do this, the Court may completely dismiss the charges in which you will no longer be penalised. It may also result in less serious penalties or be downgraded to a less significant charge which is more favourable than imprisonment.

For relevant advice in relation to whether you should plead guilty or not guilty, please do not hesitate to contact our Sydney based criminal law firm for a FREE first consultation.

THE DEFENCE

If you or someone you know is facing charges relating to kidnapping, it is advised to seek legal representation from expert criminal defence lawyers immediately. Should we represent you, we may be able to establish the following defences appropriate situations:

Duress: Involves the use of harmful threats to coerce an individual to participate in an unlawful activity. Typically, these threats take form of death or grievous bodily harm in which it is firmly believed that by the accused that if they do not participate in the activity, the threat will take place. For example, for the crime of kidnapping, if it can be established that the defendant only participated in the kidnap as a result of harmful threats, and the defendant believed these threats would take place should the act not happen, the defendant shall not be found criminally liable.

Necessity: Our criminal defence lawyers may be able to raise the defence of necessity if it can be proven that our client only acted unlawfully to protect themselves or another individual from external threats from either natural or human forces. It must be proved that the situation was some what of an emergency, and the accused would have to believe that if they didn’t act, their life would have been in danger. As an example, a defence of necessity could be potentially being raised whereby a natural disaster has caused significant destruction. In order to protect and help other individuals, a defendant may have taken another individual against their will. As there is no intent of obtaining an advantage, as well as an individual was aiming to protect the other by means of necessity, this defence strategy could be successful.

WHICH COURT?

Charges of kidnapping are classified as an indictable offence in NSW. This means that the matter either be heard at the District Court or Supreme Court.

With 29 years of extensive experience in criminal law, Benjamin Leonardo – The Defenders have achieved exceptional results for our clients. We are home to some of Sydney’s best criminal defence lawyers and possess the knowledge, dedication and commitment to achieve to best outcome possible regardless if the matter is dealt with in Local, District and Supreme Courts. With extensive experience working in all of these Courts, our criminal defence lawyers can accurately advise you on in relation to what to expect at each.

For a FREE first consultation, call our expert criminal law firm now.