Kidnapping is a serious criminal offence under Australian law. In New South Wales (NSW), it involves taking or detaining a person without their consent, often to demand ransom, committing another serious crime, or gaining some form of advantage. If you or someone you know is facing kidnapping charges, it’s critical to understand the legal implications and seek professional legal advice.

What Is Kidnapping?

Under Section 86 of the Crimes Act 1900 (NSW), kidnapping is defined as taking or detaining a person without their consent with one of the following intentions:

• To hold the person for ransom,
• To commit a serious indictable offence, or
• To obtain another type of benefit or advantage.

Elements of the Offence

To secure a conviction for kidnapping, the prosecution must prove:

• Taking or Detaining: This includes leading, enticing, confining, or preventing someone from leaving.
• Lack of Consent: The victim did not willingly or voluntarily agree to the situation.
• Intent: The act was done with a specific purpose, such as ransom or to commit another crime.

Aggravated and Specially Aggravated Kidnapping

The law recognises more serious forms of kidnapping under Section 86(2), which carry higher penalties.

• Aggravated Kidnapping: Involves committing the offence with others or causing actual bodily harm to the victim.
  • Maximum penalty: 20 years imprisonment.

• Specially Aggravated Kidnapping: Occurs when both aggravating factors are present (in company and bodily harm).
  • Maximum penalty: 25 years imprisonment.

Penalties

The maximum penalties for kidnapping offences in NSW are:

• Basic Kidnapping – up to 14 years imprisonment
• Aggravated Kidnapping – up to 20 years imprisonment
• Specially Aggravated Kidnapping – up to 25 years imprisonment

Courts consider factors such as the duration of detention, the level of harm caused, and the purpose behind the act when determining sentences. The Judicial Commission of NSW provides further guidance on sentencing, including the impact of “substantial injury” on penalty severity.

Examples of Kidnapping

Some scenarios that may constitute kidnapping under NSW law include:

• Detaining someone against their will
• Forcibly transporting a person to another location
• Taking a child in breach of a Parenting Order

Legal Defences to Kidnapping Charges

If charged, several defences may be available depending on the circumstances:

• Duress – You were coerced or threatened into committing the act
• Necessity – You acted to prevent greater harm
• Self-Defence – You were protecting yourself or another from danger

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong-Yuan, paralegal.

See author's posts