Detain for advantage/kidnapping

[18-700] Section 86 Crimes Act 1900

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

86 Kidnapping

(1) 

Basic offence

A person who takes or detains a person, without the person’s consent:

(a)

with the intention of holding the person to ransom, or

(a1)

with the intention of committing a serious indictable offence, or

(b)

with the intention of obtaining any other advantage,

is liable to imprisonment for 14 years.

(2) 

Aggravated offence

A person is guilty of an offence under this subsection if:

(a) 

the person commits an offence under subsection (1) in the company of another person or persons, or

(b) 

the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

(3) 

Specially aggravated offence

A person is guilty of an offence under this subsection if the person commits an offence under subsection (1):

(a) 

in the company of another person or persons, and

(b) 

at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

A person convicted of an offence under this subsection is liable to imprisonment for 25 years.

The basic form of the offence with the ingredient “with the intention of committing a serious indictable offence” only applies to offences committed on or after 24 September 2012: Sch 11, Pt 32 Crimes Act.

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).

[18-705] Attempts to commit the offence

The fact that an offender is charged with attempt does not mean that 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 that 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].

[18-710] Gravamen of offence

The modern form 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] NSWCCA 144 at [79]; R v Flentjar [2008] NSWSC 771).

The terms of s 86 and the cases which have applied it will 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, above, at [79].

[18-715] Factors relevant to the seriousness of an offence

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 period of the detention

  • the circumstances of the detention

  • the person being detained, and

  • the purpose of the detention.

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], which was cited with approval in R v Speechley (2012) A Crim R 175 at [55]. The court in R v Speechley referred to several sentencing cases involving s 86 offences at [111]–[114].

There are many factors, other than the purpose of the detention, that are relevant to the assessment of the seriousness of the crime: R v Falls [2004] NSWCCA 335 at [42]; Jeffries v R [2008] NSWCCA 144 at [81].

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 psychological satisfaction or gratification obtained by the offender by the victim’s detention is sufficient to establish “advantage” in s 86(1)(b): R v Rose [2003] NSWCCA 411. The offence is no 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].

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 is not a matter which reduces 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].

Detaining for advantage in a domestic context

“The circumstance that the offence occurred in a domestic context, as distinct from the detention of a stranger, does not lessen its gravity”: Heine v R [2008] NSWCCA 61 at [40], referring to R v Hamid, above; Raczkowski v R [2008] NSWCCA 152 at [46]; Hussain v R [2010] NSWCCA 184 at [68]. In R v Burton, above, Johnson J said at [95] that an “assessment of the objective seriousness of the offence involved an examination of the immediate acts of the Respondent in the context of his violent control of the victim [his partner]”.

It is an error not to have express regard to the need for general and specific deterrence and denunciation of domestic violence offences: R v Burton, above, at [95], following R v Hamid, above, at [86] and Hiron v R [2007] NSWCCA 336 at [32].

Delay, which is a distinctive feature of domestic violence, should not be held against the victim of a detain for advantage offence because it is a direct product of the offending itself: Hurst v R, above, [132]. See generally [10-530] Delay.

In Jeffries v R, above, a significant aggravating factor was that the s 86 offence was committed in breach of an apprehended domestic violence order (at [91]), and that the offender’s “recidivist conduct demonstrated a propensity to act violently towards his partners”: at [92]. Such recidivism increases the weight to be given to retribution, personal deterrence and protection of the community: at [93]; R v McNaughton (2006) 66 NSWLR 566 at [26].

The court in Burton noted (with reference to previous authorities) that, given victims of domestic violence often — and contrary to their interests — forgive their attackers (at [104]), a court should cautiously approach a victim’s expressions of forgiveness and requests for a lenient sentence: at [102], [105].

In Boney v R [2008] NSWCCA 165 at [112], the court held that the judge imposed “unjustifiably high” sentences for three detain for advantage offences committed in a domestic violence context. The court held that although the detentions were “far from short” they were “far less” than the circumstances envisaged by s 86. Hulme J added at [112]:

… it is to be borne in mind that …[the] provision covers also detention for the purposes of ransom, detention that might well extend for much longer than occurred in this case and in circumstances where a victim might be blindfolded, in an unknown location and completely out of contact with anyone not an offender.

When committed against a person with whom the offender has a domestic relationship, an offence under s 86 is a “domestic violence offence” for the purposes of recording such offences as part of an offender’s prior record under the Crimes (Domestic and Personal Violence) Act 2007: ss 11–12.

Motivation and vigilante action

Offences under s 86 are regularly motivated by a desire to retaliate for conduct allegedly committed in the past by the victim upon the offender or a third party. It is necessary for courts to condemn such “vigilante action” and to reflect general deterrence in the sentence: R v Speechley (2012) A Crim R 175 at [110], [122]. However, motive may be relevant to explain why the offence was committed and to indicate a lack of need for personal deterrence where the act of retaliation is unlikely to be repeated: Barlow v R [2008] NSWCCA 96 at [67]–[68] and Rayment v R (2010) 200 A Crim R 48 at [108], both citing principles from R v Swan [2006] NSWCCA 47 at [33] and R v Mitchell (2007) 177 A Crim R 94 at [30]–[32] which are not kidnapping cases. As punishment and humiliation are necessary elements of an offence of specially aggravated kidnapping under s 86(3), it is an error to take quasi-vigilantism into account as an additional aggravating factor: Sorensen v R [2016] NSWCCA 54 at [128]–[129]; Hall v R [2017] NSWCCA 260 at [33]–[35].

Sentences other than full-time imprisonment generally not appropriate

Non-custodial sentences will generally not be appropriate for an offence under s 86, particularly for the aggravated form of the offence: R v Anforth [2003] NSWCCA 222 at [48]; R v Speechley (2012) A Crim R 175 at [116]. In Anforth, the court held that suspended sentences were a manifestly inadequate punishment for two counts of aggravated kidnapping and failed “to demonstrate the community’s abhorrence of offences of [such a] violent and sadistic nature”: at [48]. Suspending a sentence of imprisonment may deprive the punishment of much of its effectiveness and fail to reflect the objective gravity of the offence: R v Speechley at [124]. Similarly, for an offence of aggravated kidnapping under s 86(2), where actual bodily harm and psychological trauma is inflicted, an intensive correction order (ICO) is not an appropriate form of punishment: R v Ball [2013] NSWCCA 126 at [117]. An ICO fails to sufficiently address the issue of general deterrence: R v Ball at [117].

Reliance on statistics

Offences under s 86 are not sufficiently homogenous so as to make reference to statistics of much assistance: R v Newell [2004] NSWCCA 183 at [43]; Jeffries v R [2008] NSWCCA 144 at [82], [85]; Homsi v R [2011] NSWCCA 164 at [116], [124]. Similarly, in Heine v R [2008] NSWCCA 61, it was observed that “the offence is one that is committed in a wide range of circumstances, which makes the statistics of less assistance than is the case with some [other] offences”: at [34]. In Jeffries the court noted that, while the sentence imposed was comparatively lengthy “in mathematical terms”, courts should not sentence offenders by reference to the statistical median range of sentences handed down over a period of time: at [86]; R v AEM [2002] NSWCCA 58 at [116]; R v Flentjar [2008] NSWSC 771 at [49].

[18-720] Elements of the offence and s 21A factors not to be double counted

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].

[18-730] Joint criminal enterprise and role

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].

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.

[18-740] Relevance of s 90A Crimes Act 1900 (repealed)

Section 90A, which was repealed in 2001, did not have levels of kidnapping offences, unlike s 86. The movement away from s 90A, and the enactment of three levels of the offence (basic, aggravated and specially aggravated) requires focus upon the specific terms of s 86: R v Speechley (2012) A Crim R 175 at [105]. A number of the factors identified in R v Collett (unrep, 7/6/79, NSWCCA) remain relevant to kidnapping generally, even though the statutory structure of s 86 is different to s 90A: Speechley at [105]. However, courts must concentrate upon those cases applying s 86 when assessing the seriousness of kidnapping offences: at [105].