Kidnapping

– section 63A of the Crimes Act 1958
Kidnapping

Kidnapping is when you take someone else away or detain them. You do so to get a payment (ransom) for releasing the person. Or you detain the other person to gain an advantage for yourself or someone else.

Examples of Kidnapping
  • A man kidnaps the daughter of a millionaire and demands that her father pay $100,000 for her release.
  • A woman is a nanny and takes the child she cares for to another country without the parents’ permission.
What are some of the possible defences to a charge of Kidnapping?
  • You did not take or detain anyone.
  • You did not take or detain anyone and ask for money or gain an advantage.

There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.

Questions in cases like this
  • What did you actually do?
  • What do they think you did?

 
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Maximum penalty and Court that deals with this charge

The maximum penalty for this offence is level 2 imprisonment (25 years).

This charge is heard in the County Court.

“Did you detain someone for money?”
What is the legal definition of Kidnapping?

The Prosecution must prove that you took, enticed away or detained another person intentionally, to demand payment, or some other advantage from the detained person or any other person.

Legislation

The section that covers this offence is section 63A of the Crimes Act 1958.

Elements of the offence

An accused may be found guilty of Kidnapping if the prosecution successfully proves the following:

  • The accused led, took, or enticed away or detained any person (C); and
  • The accused, in doing such an act, had an intent to demand from C or from any other person any payment by way of ransom for the return or release of C; or
  • The accused, in doing such an act, had an intent to gain for themselves or for any other person any advantage (however arising) from the detention of C.

A secondary offender can be liable if they participate in the detention at a point. They do not need to be there for the initial abduction.

The accused may be found guilty if the intent to kidnap develops during the detention rather the beforehand.
 

What can you be sentenced to for this charge?

As this is a very serious offence, if you are found guilty you will generally receive a prison sentence.

Sentencing in the higher courts

From 1 July 2011 to 30 June 2016, there were 21 cases (39 charges) of Kidnapping that were heard in the higher courts of Victoria. Sentences imposed on these cases include Imprisonment (81%), Community Correction Order (9.5%), and Fine (9.5%).

Of the cases that led to imprisonment, majority were sentenced to a term that was between 5 and 6 years (35.3%). The highest term imposed was between 11 and 12 years (5.9%).1

Other Important Resources

 



[1] Sentencing Advisory Council. "SACStat Higher Courts - Crimes Act 1958 (Vic): s 63A - kidnapping." SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_6231_63A.html (accessed February 18, 2019).