Sentencing Trends No 17 — Kidnapping — Section 90A Crimes Act 1900 (NSW)

Kidnapping – Section 90A Crimes Act 1900 (NSW)

Natalie Marsic, Research Officer

Introduction

Section 90A was inserted into the Crimes Act 1900 (“the Act”) in 1961¹ in response to the kidnapping and murder of a young child in Sydney.² 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.³

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.” [EMPHASIS ADDED]

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.

Part I – Statistical Analysis

The statistics contained in the Judicial Information Research System (JIRS) do not distinguish s 90A cases on the basis of the applicable maximum penalty and accordingly caution needs to be exercised when referring to them. One of the aims of the present study was to separate the two types of s 90A cases by auditing s 90A matters finalised in the period between 1988⁴ and 1997 in the District Court and Supreme Court. Currently, no provision has been made for coding the two distinct maximum penalties. Instead, one single code exists for the offence of kidnapping as provided for by s 90A. However it was not usually possible to ascertain from the information, contained in the files, which maximum penalty had been considered by the courts.

Despite this, the audit provided much demographic information about offenders and victims and also divulged sentencing patterns. In summary, it was found that over the ten year period dating from 1988, a total of 161 offenders were convicted of an offence under s 90A. From this total, 150 offenders were dealt with in the District Court and 11 offenders were dealt with in the Supreme Court.

The offenders

The 161 offenders were predominantly male (95%, n=153).⁵ Offender age at the time of offence (available for 139 offenders) ranged between 14 and 54 years. The most frequent age was 18 years (17 offenders). Figure 1 illustrates that over 50% of offenders were aged 25 years or less, and shows that the likelihood of committing a kidnapping offence decreases with age.

Figure 1
Age of offenders

Over three quarters of the offenders pleaded guilty (77%, n=124). Just under three quarters of the offenders had prior convictions (73%, n=118). Of these, a quarter had convictions for sexual offences (n=30) and over half had convictions for violent offences (56%, n=66).⁶ More than half of the offenders with prior records had previously served time in prison (58%, n=68).

The victims

The 161 offenders were responsible for kidnapping a total of 175 victims. Details of the sex of victims were available in 160 cases. Seventy-three were female (46%) and 87 were male (54%). The age of victims was available in 153 cases and ranged from six weeks to 76 years. Forty-two per cent of victims were 20 years old or younger, and 25% of victims were between 21 and 30 years old. Male victims were spread almost uniformly across all age groups, whereas female victims were more likely to be under 40 years of age: see Figure 2.

Figure 2
Age and sex of victims

From 160 victims, nearly two-thirds did not know their abductors (n=102, 64%). Forty-two victims (41%) who did not know their abductor were also robbed and 32 victims (31%) were also sexually assaulted.

Of the victims who did know their abductor, approximately 12% (n=19) were in an existing or previously existing intimate relationship with the offender, 25% of victims otherwise knew the offender (eg friend, acquaintance, work/school colleague, n=36) and three victims were otherwise known to the offender (2%).⁷ Of the victims who knew their abductor (except those in the intimates group) nine were kidnapped in relation to a domestic dispute involving the offender (16%), eight were sexually assaulted (14%) and six (10%) were robbed. Female victims were more likely to be in, or have been in, an intimate relationship with the offender than male victims (84% and 16% respectively), whereas male victims were more likely to be known otherwise to the offender than females (75% and 25% respectively).

The offence

In more than half of the cases in this study offenders were convicted of kidnapping as their principal offence (n=89, 55%). The principal offence is the offence which receives the most severe penalty. One hundred and twenty-six offenders were convicted of an additional offence to kidnapping (85%).⁸ Robbery, sexual assaults and assaults were the most common accompanying offences: see Figure 3.

Figure 3
Other offences

Overall there were 139 separate kidnapping incidents. One hundred incidents involved one victim and one offender (72%), 18 (13%) involved one offender and multiple victims, 11 (8%) involved one victim and multiple offenders and 10 (7%) involved multiple victims and offenders.

Weapons were used by 60% of offenders (n=88).⁹ Over a quarter of offenders used firearms and just less than a quarter used knives (n=40 and 36 respectively). Other instruments were used by eight per cent of offenders (n=12).

Sentencing patterns

The majority of offenders were sentenced to full-time custody (n=117, 73%). Five offenders were sentenced to detention in a juvenile justice institution (3%). Periodic detention was imposed upon 15 offenders (9%) and eight received community service orders (5%). The remaining 16 offenders received recognizances (10%).

Where kidnapping was the principal offence with which the offender was charged, and the offender was sentenced to full-time custody, sentences for the kidnapping offence tended to be clustered around the less serious scale of penalties. Where kidnapping was not the principal offence, offenders were more likely to receive a harsher sentence for kidnapping. This is illustrated in Figure 4.

Figure 4
Full terms for kidnapping offenders

In cases where the offence of kidnapping was committed in combination with sexual assault and robbery offences, and the offender was sentenced to full-time custody for the kidnapping offence, these sentences were generally longer. This is true both when kidnapping was determined to be the principal offence (Figure 5) and where other offences were determined to be the principal offence: see Figure 6.¹⁰

Figure 5
Full terms by other offences – kidnapping as principal offence

Figure 6
Full terms by other offences – kidnapping as non-principal offence

Where kidnapping was the principal offence, offenders who were also convicted of sexual assault received harsher sentences for the kidnapping offence than those who were also convicted of robbery: see Figure 5. In contrast, where kidnapping was not the principal offence, offenders who were convicted of robbery as the principal offence received harsher sentences for the kidnapping than those convicted of sexual assault: see Figure 6.

Part II – Law and Practice

According to New South Wales Parliamentary Debates (Hansard), the aim of s 90A is to provide kidnappers with an incentive to return victims unharmed. More specifically, it is intended to deter kidnappers from murdering their victims in order to destroy evidence associated with their crime.¹¹ However, it is at least debatable whether s 90A can achieve these aims. The structure of s 90A is complex and unnecessarily legalistic. Moreover, it is unrealistic to assume that at the time of committing the offence offenders would advert to the terms of the section, appreciate the differing circumstances under which each of the two maximum penalties apply and modify their behaviour in the direction intended by the legislation.

Part II of this paper goes on to consider the unique structure of s 90A to relevant case law and to some practical problems arising from it.

The unique structure of section 90A

The structure of s 90A is unique on two grounds. First, the section enacts one offence of kidnapping, yet it sets out two maximum penalties. The 20 year maximum applies unless the victim is released without having sustained substantial injury, in which case the 14 year maximum applies. Secondly, the wording of s 90A clearly places the onus upon the offender to prove “to the satisfaction of the judge” that the victim was “liberated without having sustained substantial injury”, thus making this circumstance a matter in mitigation. The case law has construed s 90A in the same manner.¹² The standard of proof of facts in mitigation is upon “the balance of probabilities”, whilst facts in aggravation must be proved “beyond reasonable doubt” by the party upon whom the onus lies.¹³

Unlike s 90A, the structure most commonly adopted in the Crimes Act, where different maximum penalties apply to similar offences distinguished only by aggravating circumstances, is to enact two offences. One is a standard offence (for example sexual assault, s 61I) and the other, an aggravated form of the standard offence which attracts a higher maximum penalty (in this case for aggravated sexual assault, s 61J)¹⁴.

The meaning of “substantial injury”

The meaning of “substantial injury” is central to the interpretation of s 90A, as the distinction between the two maximum penalties is dependent upon the scope of substantial injury. The Act does not define “substantial injury” leaving that question to be determined by case law.

The word “substantial” has been the subject of judicial interpretation in a number of different contexts.¹⁵ In R v Hudson¹⁶, the full Federal Court discussed the meaning in terms of s 90A and considered whether “substantial injury” is equivalent to “grievous bodily harm”.¹⁷ The court concluded that these expressions were not equivalent, as the legislature would have used the expression “grievous bodily harm” if this was its intention.¹⁸

The court preferred to define substantial injury as an injury “… more than minor or slight, but that it need not be of the serious kind which would constitute grievous bodily harm.”¹⁹ The court did not think it useful or wise to elaborate further and concluded by saying that each case should be decided on its own facts.²⁰ In this case the court considered the victim’s injuries to be substantial. They consisted of bruises which were not dispelled for several weeks and were described as severe but which had no lasting or ongoing effects.²¹

In Rowe²² the NSW Court of Criminal Appeal followed R v Hudson. Hunt CJ at CL for the court also drew an analogy with the meaning of the word “substantially” in the phrase “substantially impaired” in s 23A of the Crimes Act, being less than total but more than trivial or minimal.²³ His Honour expressed the view that an injury caused to a woman by violence, inflicted during or associated with sexual intercourse without consent, is capable of amounting to serious injury within the meaning of s 90A.²⁴

It was submitted to the court that injury in terms of the Crimes Act must be physical injury. Without deciding that matter his Honour stated that “… an assault which produces minor physical consequences may well become substantial where the circumstances in which it was inflicted (as here) greatly affect its seriousness.”²⁵ The question of whether substantial injury in terms of s 90A could include psychological injury or trauma was raised but not determined in Regina v CPC.²⁶

Current judicial practice

In accordance with the terms of s 90A, the prima facie maximum penalty for the offence of kidnapping is 20 years. The 14 year maximum penalty should only be considered if the offender satisfies the court, on the balance of probabilities, that the victim was not substantially injured. Priestley JA for the court in Regina v CPC²⁷ adopted this approach. Many of the cases appear however to regard 14 years as the ordinary maximum penalty, unless the Crown proves that the victim suffered substantial injury.

In Hawkins²⁸ the offender kidnapped a 15 month old girl, sexually assaulted her causing serious internal injuries and, whilst climbing over a fence, dropped the child causing her further injury. The child was found three hours later. Despite the “horrendous injuries” the sentencing judge stated that the offence of kidnapping carried a maximum sentence of 14 years without further discussion.²⁹ On appeal, the issue of the appropriate applicable maximum penalty was not raised.³⁰

In Heather³¹ the offender forced an 11 year old girl into his unit and subjected her to an act of penile penetration and acts of oral sex. Again, the sentencing judge indicated that the maximum penalty for the offence of kidnapping was 14 years without further analysis.³² The question of maximum penalties was not raised in the Court of Criminal Appeal.³³

In both these cases, kidnapping was not the principal offence, and it is possible that the totality principle played a role in moderating the penalty imposed for the kidnapping offences. This fact alone however does not explain the lack of attention to the dual penalty issue and the need to ensure that an appropriate sentence is seen to be imposed for each offence.

Since Rowe there have been few appeals in the Court of Criminal Appeal relating to s 90A. In Regina v CPC it was clear that the 14 year maximum should apply as the victim, although held for ransom, was not injured or abused. The kidnapping offence in Keal³⁴ was committed in conjunction with an aggravated indecent assault on a four year old girl. In this case a maximum penalty of 14 years was considered appropriate.³⁵ In Stewart³⁶ the victim was shot by the offender. The sentencing judge considered a maximum penalty of 20 years appropriate, although on appeal the 14 year maximum was deemed appropriate as the Crown had consented to the application of the 14 year maximum.³⁷ In that case the sentencing judge was of the opinion that the Crown had overlooked the fact that kidnapping carries a maximum penalty of 20 years, unless the offender can establish that no substantial injury was occasioned to the victim.

A possible explanation for the lack of attention given to the applicable maximum penalties lies in Regina v CPC.³⁸ In that case the offender was sentenced for armed robbery, which carries a maximum penalty of 25 years, in addition to kidnapping. The armed robbery offence was considered to be the principal offence. The Court of Criminal Appeal reported the sentencing judge as having said³⁹ –

“ALTHOUGH IN ONE SENSE THE QUESTION OF THE MAXIMUM PENALTY IS SOMEWHAT ACADEMIC, I THINK IT IS APPROPRIATE THAT I SHOULD RECORD THE VIEW I HAVE TAKEN ON THE MATTER.” [EMPHASIS ADDED]

On appeal, Priestley JA interpreted these comments to mean that the sentencing judge was of the mind to pass a sentence of less than 14 years regardless of the applicable maximum penalty.⁴⁰ Another interpretation is that because the maximum penalty for the principal offence of armed robbery was greater than the possible 20 year maximum under
s 90A, the question of maximum penalty for the kidnapping became less important as it would be subsumed by the sentence for armed robbery. Again, in such situations the court may be preoccupied with the totality principle rather than with expressing excessive concern for the maximum penalties applicable for each offence.

It may be imprudent to regard the question of the maximum penalty under s 90A as academic since maximum penalties set the upper limit of sentences and are generally appropriate in worst category cases. Further, cases which do not fall within the worst category merit sentences proportionate to their objective gravity, with the maximum penalty serving as an important yardstick.⁴¹ It is debatable whether a sentence should be arrived at without adverting to the appropriate maximum penalty. This remains true whether the kidnapping offence is regarded as a principal or secondary offence.

The most plausible explanation for the prevalence of the application of the lesser maximum penalty for kidnapping is that the maximum penalties are the subject of negotiations between the Crown and the defence. Offenders may be encouraged to plead guilty in return for the Crown agreeing to proceed on the basis that the victim sustained no substantial injury, thus relieving the offender from proving that issue. In such cases the Crown may be minded to make submissions on the basis that 14 rather than 20 years penal servitude is the applicable maximum penalty.

Arguably, this practice does not sit well with the intent and purpose of s 90A and may offend the principle that justice must not only be done but be seen to be done.⁴² Under the current wording of
s 90A the absence of “substantial injury” is a mitigating factor for the offender to prove. Justice is not seen to be done in cases where the victim has clearly sustained substantial injury, such as in Hawkins,⁴³ but where the offender is not put to proof on that issue and no explanation for this is apparent on the face of the judgment of the court. Whilst the circumstances surrounding the application of the 14 year maximum penalty may be known to the court and parties involved, the community is not privy to this knowledge and must rely solely on the reasons for judgment. In this situation, it may appear that the 20 year maximum penalty was overlooked or ignored and consequently that the terms of s 90A were not followed.

For the reasons given it is often difficult to reconcile the courts’ choice of maximum penalty with the provisions of s 90A. In practical terms, it could be argued that current practice has tended to blur the distinction between the maximum penalties in s 90A, and this is not helpful in any quest to attain consistency of approach in sentencing for this offence. In setting out reasons for sentence, it is helpful where courts indicate the appropriate maximum penalty⁴⁴ applicable to the case at hand. This is particularly important in kidnapping cases where the reasons for selecting one maximum penalty rather than the other should be set out.

The exceptional structure of s 90A has ramifications for the manner in which the statistics for the offence are collected. The statistical material on sentences in JIRS does not discriminate between the two situations presented by s 90A. The statistics are based on offence type and it is impractical, under current coding practice, to provide separate statistics for a single offence which carries different penalties.

Conclusion

In order to overcome the difficulties referred to, legislators may wish to consider whether it would be desirable to amend s 90A so that it conforms with more conventional standards of legislative drafting. Thus, a standard and an aggravated version of the offence could be created in separate sections, each with its own maximum penalty. The standard offence could be made an alternative verdict of the aggravated form of the offence.

This would be advantageous for two reasons. First, it would be clear from the outset which offence and maximum penalty applied, eliminating the need for courts to give reasons for the choice of maximum penalty. Secondly, the data in JIRS would be more precise and provide greater assistance to sentencers seeking to discover the range of penalties imposed for similar offences.

If the legislation were to be re-drafted by splitting s 90A into two sections, the original intention of parliament would be affected. The offender would no longer be required to prove that the victim sustained no substantial injury and instead it would be for the Crown to prove that there was substantial injury.

An amendment of this type might be preferable to maintaining the status quo. The use of like structures in legislation for like legal problems reduces the potential for error, diminishes the risk of criticism of the way the provisions operate, simplifies an unnecessarily complex section and ultimately, promotes the object of attaining consistency of approach in sentencing.

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Endnotes

1	Crimes (Amendment) Act 1961 (NSW), s 2(a).
2	New South Wales Parliamentary Debates (Hansard), Legislative Assembly, 29 November 1961 per Mr Treatt at 3390; R v Toohey, (unrep, 1 Nov 1974, NSW CCA at 4).
3	New South Wales Parliamentary Debates (Hansard), Legislative Assembly, 29 November 1961 per Mr Treatt at 3390.
4	Data for 1988 is incomplete.
5	All percentages have been rounded to the nearest whole number.
6	Violent offences include offences against the person, excluding sexual offences.
7	Two of these victims were police officers transporting the offender and one victim was accused of having an affair with the offender’s spouse.
8	Data unavailable for 15 offenders.
9	Data available for 145 of the 161 offenders.
10	It should be noted that in Figure 5 there were only 10 offenders who were convicted of a sexual assault offence and 14 who were convicted of a robbery offence where the kidnapping offence was the principal offence.
11	New South Wales Parliamentary Debates (Hansard), Legislative Assembly, 29 November 1961 per Mr Mannix at 3387; New South Wales Parliamentary Debates (Hansard), Legislative Assembly, 29 November 1961 per Mr Mannix at 3389, 3390. See also Rowe (1996) 89 A Crim R 467.
12	Rowe (1996) 89 A Crim R 467 at 471 per Hunt CJ at CL. See also Regina v CPC (unrep, 8 Apr 1997, NSW CCA per Priestley JA).
13	Pilley (1991) 56 A Crim R 202, per Finlay J at 204.
14	This may be done, as in the case of sexual assault, by enacting two separate sections or as in the case of robbery (s 97, Crimes Act 1900), within the same section but under different sub-sections.
15	See R v Hudson (1985) 63 ALR 257 at 270 per Sheppard, Beaumont and Miles JJ for a discussion of Palser v Grinling [1948] AC 291; Day v Pinglen Pty Ltd (1981) 148 CLR 289; 34 ALR 545 and O’Brien Glass Industries Ltd v Cool & Sons Pty Ltd (1983) 48 ALR 625.
16	R v Hudson (1985) 63 ALR 257.
17	R v Hudson (1985) 63 ALR 257 at 270 per Sheppard, Beaumont and Miles JJ.
18	R v Hudson (1985) 63 ALR 257 at 272 per Sheppard, Beaumont and Miles JJ.
19	R v Hudson (1985) 63 ALR 257 at 272 per Sheppard, Beaumont and Miles JJ.
20	R v Hudson (1985) 63 ALR 257 at 272 per Sheppard, Beaumont and Miles JJ.
21	R v Hudson (1985) 63 ALR 257 at 273 per Sheppard, Beaumont and Miles JJ.
22	(1996) 89 A Crim R 467 at 471, 472.
23	See also Regina v CPC (unrep, 8 May 1997, NSW CCA, per Priestley JA).
24	Rowe (1996) 89 A Crim R 467 at 472.
25	Rowe (1996) 89 A Crim R 467 at 472.
26	(unrep, 8 May 1997, NSW CCA, per Priestley JA).
27	(unrep, 8 May 1997, NSW CCA).
28	(unrep, 14 Aug 1991, NSW Sup Ct, per Newman J); (unrep, 15 Apr 1993, NSW CCA).
29	(unrep, 14 Aug 1991, NSW Sup Ct, per Newman J, at 1).
30	(unrep, 15 Apr 1993, NSW CCA).
31	(unrep, 16 Dec 1993, NSW Dist Ct, McGuire DCJ); (unrep, 1 Aug 1995 NSW CCA).
32	(unrep, 16 Dec 1993, NSW Dist Ct, per McGuire DCJ, at 5).
33	(unrep, 1 Aug 1995, NSW CCA).
34	(unrep, 7 Nov 1997, NSW CCA).
35	(unrep, 7 Nov 1997, NSW CCA, per Dunford J).
36	(unrep, 19 Dec 1996, NSW CCA, per McInerney J).
37	See Maxwell v The Queen (1996) 184 CLR 501 regarding a trial judge’s lack of power to review the decision of a Crown Prosecutor to accept a plea of guilty to a lesser charge.
38	(unrep, 8 May 1997, NSW CCA).
39	(unrep, 8 May 1997, NSW CCA, per Priestley JA at 6).
40	(unrep, 8 May 1997, NSW CCA at 6).
41	Dodd (1991) 57 A Crim R 349 at 354.
42	Webb v The Queen (1994) 181 CLR 41, per Mason CJ and McHugh J at 50.
43	(unrep, 15 Apr 1993, NSW CCA).
44	R v Chigot (unrep, 5 Apr 1995, NSW CCA, per Finlay J at 5).

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Acknowledgement

The author wishes to thank the Hon David Hunt QC for his perusal of this paper in draft form, constructively discussing its content and providing critical appraisal of its recommendations.

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ISSN 1036 4722

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Disclaimer
This paper was prepared by officers of the Judicial Commission for the information of the Commission and for the information of judicial officers. The views expressed in the report do not necessarily reflect the views of the Judicial Commission itself but only the views of the officers of the Commission who prepared this report for the Commission.