Abduction and kidnapping offences, penalties and laws: Complete guide

Kidnapping and Abduction offences are found in Division 14 of the Crimes Act 1900 (NSW). Kidnapping encompasses three types of offences, namely, the basic kidnapping in section 86(1); the aggravated kidnapping offence in section 86(2); and the specially aggravated kidnapping in section 86(3). Each carry a maximum penalty to reflect the seriousness of the offence, which includes a criminal record and imprisonment. In contrast, abduction is an offence of kidnapping kids under section 87 of the Crimes Act (NSW) which is focused on child abduction.

This article is written and fact checked by our criminal lawyers Sydney team to be used as a guide, and not as a substitute for legal advice. For confidential legal advice, please contact our friendly Sydney office on (02) 8606 2218.

Difference Between Kidnapping and Abduction

Abduction is focused on the non-consensual taking or detaining of a child with an intention of removing or keeping the child from the person who has lawful control with parental responsibilities. While abduction is centred on kidnapping kids or child kidnapping, in contrast, kidnapping is focused on the non-consensual taking or detaining of a victim which includes an adult or a child with the intention of obtaining an advantage such as an intention to hold the victim for random, or to commit a serious indictable offence, or any other advantage including sexual gratification.

Kidnapping Definition?

The meaning of kidnapping includes the basic kidnapping offence which is when a person takes or detains a person, without consent (knowing there was no 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.

The aggravated kidnapping offence is when a person commits the basic kidnapping offence in the company of another person(s); or when a person commits the basic kidnapping offence and at the time of or immediately before or after it, actual bodily harm is occasioned to the victim.

The specially aggravated kidnapping offence is when a person commits a basic kidnapping offence in the company of another person(s); and at the time of or immediately before or after it, actual bodily harm is occasioned to the victim.

There is a presumption of no consent in circumstances a child is taken or detained by a person. Here a "child" means a person under the age of 16 years.

"Detaining" a person here includes causing the person to remain where he or she is.

"Taking" a person includes causing the person to accompany a person and causing the person to be taken.

What is the Penalty and Punishment for Kidnapping?

The basic kidnapping offence carries a maximum penalty of up to 14 years imprisonment prescribed by section 86(1) Crimes Act.

The aggravated kidnapping offence carries a maximum penalty of up to 20- years imprisonment prescribed by section 86(2) Crimes Act.

The specially aggravated kidnapping offence carries a maximum penalty of up to 25 years imprisonment prescribed by section 86(3) Crimes Act.

How is a Basic Kidnapping Offence Proved in Court?

In summary, to prove the basic offence of kidnapping, the prosecution has the onus to prove beyond reasonable doubt the three essential elements of the offence, namely the following:

1. The accused person takes or detains a person, and
2. Does so without consent- meaning that the accused person knew there was an absence of consent by the alleged victim to do this; and
3. The accused person did this 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.

A failure to prove any one or more of the above three elements of the offence of kidnapping will result in the accused person being acquitted of the charge. The charge will therefore be dismissed.

The First Element: Takes or Detains a Person

If the prosecution case is to prove that the accused person "detained" the alleged victim as an element of the offence, then it must prove that the accused person prevented the alleged victim from leaving should he or she wished to do so. This is an interference with liberty. The prosecution will be successful in proving this if it can prove beyond reasonable doubt that the alleged victim was detained for only a very short time.

If the prosecution case is to prove that the accused person had "taken" the alleged victim, it must prove that the accused person has caused a person to accompany him or her so that the person is compelled to go where he or she did not want to go. It is not necessary for a taking that the alleged victim be moved from one place to another. Taking is a form of detention. If the accused person argues that the alleged victim remained in the place of detainment for a reason other than any conduct on the part of the accused person, then the prosecution must prove beyond reasonable doubt that the conduct of the accused person materially contributed to the detention of the alleged victim. The conduct alleged by the prosecution must have been significant in the decision of the alleged victim to remain. If there's a reasonable possibility that the alleged victim remained in the place of detention for a reason that had no real or significant connection with the conduct of the accused person, the prosecution will fail to prove that the accused person detained the alleged victim.

These issues were discussed in the case of Davis v R [2006] NSWCCA 392.

The Second Element: Consent

The prosecution is required to prove that the accused person knew that the alleged victim did not consent. But how can the prosecution prove that the accused person knew there was no consent? The accused person's knowledge of the absence of consent can be established by the prosecution either proving that the the accused person knew there was no consent or that the accused person was reckless as to whether there was consent by the alleged victim.

Being reckless as to whether there was consent for the purposes of the section 86 offence of kidnapping is limited to circumstances that the accused person either continued without caring whether there was consent, or where the accused person is aware of the possibility of no consent but went ahead regardless. Here, for purposes of a section 86 offence, "reckless" as to consent cannot be proved by establishing that the accused person did not turn his or her mind to the question of consent in circumstances where the lack of consent would be obvious if the accused person had considered it. This issue was raised in the case of Castle v R (2016) 92 NSWLR 17.

Consent must be free and voluntary consent. Consent is not given if the alleged victim is detained by the accused person as a result of force or threats.

Consent is also not given if the alleged victim initially consents to being detained by the accused person but later withdraws it, making that withdrawal known to the accused person by his or her words or conduct.

The Third Element: Intention of either Obtaining an Advantage, or Committing a Serious Indictable Offence, or Holding the Person to Ransom

If the prosecution case is required to prove that the accused person had an intention of obtaining an advantage, it is sufficient for it to prove that the accused person had the intention of achieving an advantage by detaining the alleged victim. It is not necessary to prove that an advantage be actually achieved. The advantage sought to be achieved does not have to be financial. It may be psychological or sexual gratification. However, the intention to obtain this advantage must exist at some time during the period the alleged victim is detained. The intention does not have to exist for the entire time.

If the prosecution case is required to prove that the accused person had an intention of holding the alleged victim to ransom, it must prove beyond reasonable doubt that the accused person intended to detain the alleged victim in order to demand and obtain a sum of money for the alleged victim's release. The prosecution does not need to prove that the accused person actually demanded or money or successfully obtained any money.

If the prosecution case is required to prove that the accused person had an intention of committing a serious indictable offence, it must prove beyond reasonable doubt that the accused person intended to detain the alleged victim in order to commit a "serious indictable offence" being an offence that carries a maximum penalty of 5 years imprisonment or more. The prosecution does not need to prove that the accused person was successful in actually committing the serious indictable offence.

Aggravated Kidnapping

An aggravated kidnapping charge is if the prosecution case is that the accused person committed the general kidnapping offence in "circumstances of aggravation", then it must not only prove the basic kidnapping offence, but also prove beyond reasonable doubt that the offence was committed in the company of another person or actual bodily harm was caused to the alleged victim at the time of, or immediately before or after, the kidnapping.

"In company" means when two or more persons are present and share the same purpose to detain the alleged victim for advantage, even if the alleged victim is unaware of the other person(s).

The prosecution must prove that the coercive effect of the group operated to embolden or reassure the accused person in committing the offence or to intimidate the alleged victim into submission. Participation while being present at the scene of the offence is also crucial for the prosecution to prove. For example, if the accused person was not present at the scene of the offence but was outside as a look-out or driver, this will not amount to being "in company".

Actual bodily harm means any hurst or injury that interferes with the health or discomfort of a person. The harm does not have to be permanent, but it must be at least more than transient or trifling. For example, bruises and scratches will generally amount to actual bodily harm injury.

Specially Aggravated Kidnapping

A specially aggravated kidnapping charge is when the prosecution case is that the accused person committed the general kidnapping offence in the company of another person or persons and actual bodily harm was occasioned to the alleged victim at the time, immediately before or after the kidnapping offence.

Abduction Definition | Child Kidnapping

Abduction is an offence generally limited to kidnapping kids. Abduction is when a person takes or detains a child with the intention of removing or keeping the child from the lawful control of any person having parental responsibility for the child, without the consent of that person.

Child abduction is a crime in New South Wales which carries a maximum penalty of 10 years imprisonment under section 87(1) of the Crimes Act 1900 (NSW). The same maximum penalty applies to any person who takes or detains a child with the intention of stealing from the child under section 87(2) Crimes Act.

It is not an offence under section 87 Crimes Act if the person abducted is 12 years or older.

"Detaining a child" includes causing the child to remain where he or she is, whilst "taking a child" includes causing the child to accompany a person and causing the child to be taken.

A person who has "parental responsibility" for a child is a reference to a person who has in relation to a child all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children; or a person authorised to be the carer of the child under the law relating to the care and protection of children.

What are the Defences to Kidnapping and Abduction Charges?

It is not an offence of kidnapping if the person who takes or detains a child is the parent of the child or someone who is acting with the consent of a parent of the child. This only applies if the person is not acting in contravention of any court order relating to the child such as an apprehended domestic violence order or family court order. These defences are outlined in section 86(6) of the Crimes Act.

These offences are each what the law refers to as "specific intent" offences which means that the prosecution in order to be successful must also prove beyond reasonable doubt that the accused person had at the relevant time of committing the offence a specific intention of causing about a particular result or outcome. This task becomes increasingly difficult to prove where the accused person was at the time highly intoxicated that he or she is incapable of being able to form that specific intent, even if it involves voluntary intoxication of alcohol and/or drugs.

Other defences to kidnapping and abduction include:

1. Duress or necessity,
2. A person accused of this crime will be not guilty if there was nothing, he or she did to cause the victim to remain or if he or she took no action to cause the victim to accompany the accused person,
3. An accused person charged for this will be acquitted if the accused person is charged with kidnapping a child, but did so in circumstances he or she held an honest and reasonable belief that the child was at least the age of 16 years, and as such, did so with consent, Once evidence is raised of this honest and reasonable belief, the onus then shifts upon the prosecution to then negate this beyond reasonable doubt. If the prosecution fails to negate this, the accused will be found 'not guilty'. This issue was raised in the case of Ibrahim v R [2014] NSWCCA 160.

Famous Australian Kidnapping Cases

While chilling and deeply concerning, the following top 5 famous kidnapping cases in Australian history also sparks debate about live issues in Australia's criminal justice system and laws.

Lindy Chamberlain and The Azaria Chamberlain Case (1980)

Perhaps the most famous alleged "kidnapping" in Australian history. Azaria Chamberlain, a 9-week-old baby, disappeared from a tent during a family camping trip near Uluru. Lindy Chamberlain claimed adingo took the baby, but she was convicted of murder in 1982.

Lindy was laterexoneratedafter new evidence emerged. A 2012 inquest officially ruled that adingo was responsiblefor Azaria's death.

The significance of this case is that it Sparked nationwide debate and international attention, highlighting media bias and flaws in the justice system.

The Graeme Thorne Kidnapping (1960)

Eight-year-old Graeme Thorne was kidnapped on his way to school after his family won theSydney Opera House Lottery. The kidnapper demanded a ransom but later murdered the boy.

The killer,Stephen Bradley, was arrested and convicted. He was sentenced to life imprisonment.

The significance of this case is that it's Australia's first knownkidnapping for ransom, it led to significant changes inprivacy laws and media practicesregarding lottery winners.

Samantha Knight Disappearance (1986)

Nine-year-old Samantha Knight vanished from Bondi, NSW. For decades, the case remained unsolved, with multiple theories including kidnapping and paedophile rings.

In 2001,Michael Guiderwas convicted of her manslaughter after confessing to drugging and killing her. He had a long history of child sex offences.

The significance of this case is that it isone of Australia's most haunting child abduction cases. It highlighted issues aroundearly release of sex offenders and sparked community outrage when Guider was released in 2019.

The Janine Balding Case (1988)

Janine Balding, a 20-year-old bank worker, was abducted from a Sydney train station car park by a group of youths. She was raped and murdered.

Several teens were convicted, includingBronson Blessington,Matthew Elliott, and others, who were sentenced to life imprisonment.

The significant of this case is that it shocked the nation due to thebrutality of the crimeand the young age of the offenders. It reignited discussions aroundyouth crime and sentencing.

The Sydney Siege (Lindt Café Hostage Crisis, 2014)

While not a traditional kidnapping, this high-profile siege involved18 hostagesheld at gunpoint byMan Haron Monisin a café in Sydney's CBD.

The siege ended with the deaths of two hostages and the gunman after a 16-hour standoff.

This case highlighted national concerns aboutterrorism, gun control, and police response tactics. It led to increased scrutiny ofbail laws and national security protocols.

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.