The offence of kidnapping is governed by s 86 Crimes Act 1900. Section 86(1)–(3) creates a basic, aggravated and specially aggravated form of the offence:

Section 86 extends beyond the traditional notion of kidnapping (holding a person for ransom). The gravamen of the offence is directed to interference with a person’s liberty (Davis v R [2006] NSWCCA 392 at [56]) or the unlawful detaining of a person (R v Newell [2004] NSWCCA 183 at [32]; R v Falls [2004] NSWCCA 335 at [42]; R v Burton [2008] NSWCCA 128 at [95]; Jeffries v R (2008) 185 A Crim R 500 at [79]).

The concept of “any other advantage” under s 86(1)(c) includes psychological gratification or satisfaction: R v Rose [2003] NSWCCA 411; R v Speechley (2012) 221 A Crim R 175 at [50]–[51].

The basic form of the offence “has been marked out by the legislature as a serious offence, a maximum penalty of fourteen years imprisonment being provided. When such an offence is committed the punishment must be sufficient to punish and deter the offender from repeating the offence”: Chaplin v R (2006) 160 A Crim R 85, McClellan CJ at CL at [31] (a case dealing with an attempt to commit the basic offence).

The fact an offender is charged with attempt does not mean the offence is necessarily less serious: R v Newell [2004] NSWCCA 183 at [33]. Although the seriousness of an offence may be reduced by the fact the person was not in fact detained, an attempt can nevertheless involve a serious threat which may cause the victim to be terrified: Newell at [33]. The seriousness of the offence is not reduced where the offender has not determined what specific advantage he/she wishes to gain from the victim’s captivity: at [33]. A court need not make findings about the issue. For example, in R v Newell, the judge was not required to determine what the offender might have done to obtain his sexual gratification had he succeeded in detaining the child: at [33]. But where the offender has not decided at the time the victim escapes this is not to be regarded as a matter in mitigation: at [33].

The terms of s 86, and the cases which have applied it, inform the assessment of factors bearing upon the objective gravity of a given offence: R v Speechley (2012) A Crim R 175 at [105]; Jeffries v R [2008] NSWCCA 144 at [79]. Many factors are relevant to the assessment of the seriousness of the crime: R v Falls [2004] NSWCCA 335 at [42]; Jeffries v R at [81].

The court in R v Newell [2004] NSWCCA 183 at [32] identified factors relevant to the seriousness of a given offence under s 86 which include:

The last factor, the nature of the advantage that the offender seeks to obtain, is not conclusive as to the seriousness of the offence: R v Newell at [32]; R v Speechley at [55]. A detention with no rational purpose is not necessarily less serious: Diaz v R [2018] NSWCCA 33 at [44]. Nor is the offence less serious if the relevant “advantage” is to secure the offender’s self-protection: R v Hamid (2006) 164 A Crim R 179 at [131].

An offence which does not involve ransom (as referred to in s 86(1)(a)) may still be so grave as to warrant the imposition of the maximum penalty. See R v Newell at [32] applied in Jeffries v R, above, at [80]. These worst cases need not involve holding the person to ransom.

Circumstances which increase the seriousness of the offence are not confined to the period of detention or the actual use of violence. Rather, a threat of violence and the presence of a weapon are factors of aggravation even though actual injury may not be occasioned to the victim: R v Kerr [2008] NSWCCA 201 at [51]. In Kerr a very real threat of violence to the victim existed during the whole of her detention for around 36 hours. The offender’s threats included sexual assault by his friends, detention in a cellar, and that the victim would be kept as a hostage for a month: at [49]. In R v Burton [2008] NSWCCA 128 the offence was aggravated as it extended over some hours, involved threats of violence with a weapon (including a knife and a hair comb with a metal end), and was committed in the context of the offender’s violent and controlling domestic relationship with the victim: at [95]. In Hurst v R [2017] NSWCCA 114, the fact the offender’s motivation for the detention was that he derived pleasure from inflicting pain, humiliation and fear on the victim, causing her to genuinely fear for her life, and that the offence was committed against a background of domestic violence, resulted in the detention being categorised as very serious: Hurst v R at [112]–[113].

The relative brevity of the detention is of limited assistance in determining objective gravity where the victim escaped and fled his or her captor(s) rather than being released: R v Speechley at [106]. Although the duration of a detention may not objectively be long, the victim’s perspective, his or her position relative to the offender and the purpose of the detention must be taken into account: Hurst v R at [114]. In Bott v R [2012] NSWCCA 191 at [48] the court noted the sentencing judge “correctly rhetorically asked” how long the victim might have been detained if he had not escaped by activating a car alarm. However, in Allen v R [2010] NSWCCA 47 at [22], the court considered it would be speculative to infer, against the applicant’s interests, that he would have prolonged the detention.

The statutory scheme recognises that a kidnapping offence committed in company is more serious because of the force of numbers deployed against the victim: R v Speechley at [60].

An absence of injury to the victim for the basic offence does not reduce the objective gravity of an offence under s 86(2)(a). If actual bodily harm is occasioned to the victim a more serious form of the charge under s 86(2) or 86(3) would apply: R v Speechley at [107]. It would be wrong to have regard to the absence of an ingredient which, if it were present, would constitute a different and more serious offence under s 86(3): R v Speechley at [108].

A court can take into account “anguish”, violence and harm inflicted, including “severe discomfiture simply by reason of the manner in which [the victim is] tied up”: R v Flentjar [2008] NSWSC 771 at [38].

Where an offender is to be sentenced for an aggravated offence (s 86(2)) or a specially aggravated offence (s 86(3)), the aggravating elements of the offence — the infliction of actual bodily harm and/or being in company — are not to be further considered as aggravating features under s 21A of the Crimes (Sentencing Procedure) Act 1999 (s 21A(2)): R v Davis [2004] NSWCCA 310 at [19]; R v VL [2005] NSWCCA 301 at [30]. On the other hand, actual or threatened violence is not an element of the offence under s 86 and therefore may be taken into account as an aggravating factor: R v VL, above, at [32]–[34].

Where the basis of an offender’s liability for kidnapping is joint criminal enterprise and the participants assault the victim, the criminality of the person who did not strike the majority of the blows should not necessarily be assessed as significantly less: R v Turner [2004] NSWCCA 340 at [24]–[26]; see also Rahman v R [2023] NSWCCA 148 at [77]–[80].

However, the lesser role of an offender when compared with co-offenders may warrant a degree of amelioration of the sentence: Bajouri v R [2009] NSWCCA 125 at [47], [50]; cf Charlesworth v R (2009) 193 A Crim R 300 at [80]. In Bajouri, although the offender actively participated in detaining the victim (at [9]), he was not involved “until the last minute and had no part in the planning or preparation”. This reduced the seriousness of the offence.

See also Co-offenders with joint criminal liability at [10-807].