Australia: New South Wales: The kidnapping capital state of Australia

More than 500 people were abducted across the nation in the past financial year, according to figures released by the Australian Bureau of Statistics (ABS).

Out of 534 kidnappings and abductions nationwide, 225 of them were in New South Wales.

Victoria recorded the next highest number with 158 people abducted or kidnapped, while Queensland and South Australia recorded 59 cases.

In Victoria, NSW and South Australia women were more often the victims than men, but in Queensland, more men were victims of the crime.

Despite what we might have come to believe about 'stranger danger', in NSW, Victoria and SA most of the kidnappers were known to their victims, either as family members or someone in their wider circle.

In recent years, an increasing number of reported kidnappings have arisen from a 'virtual kidnapping' scam.

Last year, a Chinese international high school student was found safe and well after her family had already paid more than $200,000 in ransom. She spent several days with a Chinese university student who believed he was hiding a witness.

Neither of them knew they were being scammed until they spoke with Australian authorities. The young man had been contacted by people pretending to be Chinese Police who instructed him to meet the girl, take her home, and keep her there because she was a protected witness.

The woman received a complicated series of threats from people also purporting to be Chinese police, claiming she was implicated in a crime, but the situation could be fixed if she followed their instructions. Over the following days she sent videos of herself back to her family, telling them she was the victim of a kidnapping and they had to pay money for her release.

Her parents transferred $213,000 into a bank account located in the Bahamas.

Eight similar kidnappings were reported to NSW police last year, with scammers obtaining more than $3 million in ransom payments. While Australian Police are investigating, neither of the young people is facing charges. It would appear they were both gullible victims themselves.

It comes as no surprise that extortion is the most common motive behind kidnappings and, given the post-pandemic recession, the New South Wales Police Force has expressed concerns that desperate times could result in a spike in offences with monetary motives.

Last year, a New South Wales man was charged with giving false information  of a person/property in danger, false representation resulting in a police investigation, using a carriage service to menace/harass/offend and stalking/intimidating intending fear or harm.

Police allege the man attempted to extort money from his own mother while falsely claiming to be a victim of an assault and kidnapping, sending her a number of texts claiming he was being held for ransom, including an image of a torso with two apparent stab wounds.

He was found hours after the reported kidnapping safe and well at a cafe in Brighton Le Sands.

Kidnapping is an offence under section 86 of the Crimes Act 1900 (NSW) which carries a maximum penalty of 14 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:

1. Took or detained a person,
2. Did so without the other person's consent, and
3. Intended by doing so to hold the person to ransom, or commit a serious indictable offence, or obtain any other advantage.

A serious indictable offence is one which is punishable by at least 5 years in prison, which includes larceny (stealing).

The maximum penalty increases to 20 years in prison where the defendant:

• was in the company of another person or persons, or
• caused actual bodily harm to the complainant.

Actual bodily harm is that which is more than 'transient or trifling', and includes lasting cuts or bruises.

The maximum penalty increases to 25 years in prison where the defendant was:

• in the company of another person or persons, and
• caused actual bodily harm to the complainant.

Defence to the charge include:

1. Self-defence
2. Duress
3. Necessity, and in cases where the act was done to obtain property
4. Claim of right

A claim of right defence is available where a person is charged with an offence which contains an element of larceny (stealing), and the person honestly believed on reasonable grounds he or she was entitled to the whole of the property attempting to be obtained.

Section 249K of the Crimes Act 1900 (NSW) prescribes a maximum penalty of 10 years in prison for the crime of blackmail, which is where a person makes any unwarranted demand with menaces with the intention of:

• obtaining a gain or causing a loss, or
• influencing the exercise of a public duty.

The maximum increases to 14 years where the person threatens to commit a serious indictable offence, which is any offence that carries a maximum penalty of at least five years' imprisonment.

Examples of serious indictable offences include larceny (stealing), assault occasioning actual bodily harm, robbery etc.

Section 249L explains that a demand with menaces is 'unwarranted' unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menace is a proper means of reinforcing the demand.

'Menaces' is defined by  section 249M to include:

• an express or implied threat of any action detrimental or unpleasant to another person, and
• a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office.

The section makes clear that a threat against an individual does not constitute a menace unless it would cause:

• an individual of normal stability and courage to act unwillingly in response to the threat, or
• the particular individual to act unwillingly in response to the threat and the person who makes the threat is aware of the vulnerability of the particular individual to the threat.

Further, a threat against a Government or body corporate does not constitute a menace unless it would:

• ordinarily cause an unwilling response, or
• cause an unwilling response because of a particular vulnerability of which the person making the threat is aware.

In any event, it is immaterial whether the menaces relate to action to be taken by the person making the demand.

Section 249N defines the terms 'gain', 'obtaining a gain', 'loss' and 'causing a loss'.

A 'gain' is defined as any gain in money or other property, whether temporary or permanent, and includes keeping what one has.

'obtaining  a gain' includes obtaining a gain for oneself or for another person.

A loss is a loss in money or other property, whether temporary or permanent, and includes not getting what one might get.

'causing a loss' includes causing a loss to another person.

And finally, section 249O defines 'public duty' as a power, authority, duty or function:

• that is conferred on a person as the holder of a public office, or
• that a person holds himself or herself out as having as the holder of a public office.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.