Section 90A was inserted into the Crimes Act 1900 (“the Act”) in 1961 in response to the kidnapping and murder of a young child in Sydney. Parliament considered that the then existing provisions in the Act and the common law did not deal with the offence of kidnapping adequately and that there was a need to provide a more substantial maximum penalty. Section 90A provides—
“WHOSOEVER LEADS TAKES OR ENTICES AWAY OR DETAINS A PERSON WITH INTENT TO HOLD HIM OR HER FOR RANSOM OR FOR ANY OTHER ADVANTAGE TO ANY PERSON SHALL BE LIABLE TO PENAL SERVITUDE FOR TWENTY YEARS OR, IF IT IS PROVED TO THE SATISFACTION OF THE JUDGE THAT THE PERSON SO LED TAKEN ENTICED AWAY OR DETAINED WAS THEREAFTER LIBERATED WITHOUT HAVING SUSTAINED ANY SUBSTANTIAL INJURY, TO PENAL SERVITUDE FOR FOURTEEN YEARS.”
Significantly, this section provides for a single offence of kidnapping but sets out two maximum penalties. The 20 year maximum penalty applies prima facie unless the offender can prove to the satisfaction of the court that the victim was released without substantial injury. This structure is unique in the Crimes Act. Part I of this Sentencing Trends explores the nature of the offence of kidnapping under s 90A by describing the characteristics of offenders, victims and the offences, in addition to mapping sentencing patterns. Part II analyses the relevant law and practice. This analysis considers the unique structure of s 90A, judicial interpretation of the term "substantial injury" and the desirability of legislative change.