The Law and Penalties on Kidnapping in NSW

By Sahar Adatia and Jimmy Singh.

It’s every parent’s worst nightmare; the nagging fear constantly running in the back of their brain – a scenario where their child is forcibly kidnapped, putting their safety at risk or even worse, subjecting them to indecent treatment.

Worryingly, this is a situation that is not uncommon.

In fact, last week saw another kidnapping case unravel in which a 27-year-old man pleaded guilty to abducting a young girl at a shopping centre in Brisbane before molesting her in bushland.

The Incident: Young Girl Lured from Toy Aisle at Brisbane Kmart and Sexually Assaulted

The incident occurred on 10 December 2019 when Sterling Free lured a seven-year-old girl from metres of her mother at Kmart at the Westfield North Lakes shopping centre.

CCTV footage from the mall captured the incident, showing the disturbing moments before the little girl was convinced to follow the man from the store.

In the footage, Mr Free can be seen lingering in the toy aisle, before throwing just two words to trap her – “follow me”.

He then casually leads the girl out of the entrance of the shopping centre past dozens of unsuspecting shoppers.

Police report Mr Free then took the seven-year-old to Pumicestone Passage, a bushland area about 30 minutes’ drive away, where she was sexually assaulted.

More than an hour later, he returned her to the Westfield shopping centre.

The girl and her mother were reportedly Christmas shopping at the time of the kidnapping.

Mr Free was arrested two days following the incident after police managed to track him down with the help of the CCTV footage and an investigation that involved detectives from the Child Abuse and Sexual Crime Group.

Mr Free Pleads Guilty to Kidnapping Child Under 12 Years of Age

Last week, Mr Free, who is a father of twin girls, pleaded guilty in a Brisbane Court to taking a child for immoral purposes, deprivation of liberty and indecent treatment.

The victim’s family was present in court but did not wish to make comment.

Outside the court, Mr Free’s lawyer Shaune Irving told ABC News that his client was “somewhat relieved” to have the end in sight, however would not go into details about the facts of the case.

“He’s given us pretty detailed instructions that he wants to resolve the matter … and obviously have his punishment delivered and he wants to do that as quickly as possible,” Mr Irving said.

“Mr Free’s actions and instructions to us demonstrate a level of remorse.

“He is somewhat relieved that we now have an end in sight and the matter will be dealt with.”

Facts about Kidnappings in Australia

The Australian Bureau of Statistics highlights some facts about kidnappings in Australia.

During 2014, the kidnapping rate in Australia was at 2.3 victims per 100,000 persons, while the number of kidnapping victims was largest for persons aged between 10 and 14 years.

Females tend to account for a slightly larger proportion of all kidnapping and abduction victims, while private dwellings are the most common location for this occur.

Meanwhile, in 2014, just over half (51%) of all kidnapping and abduction in investigations were finalised by police within 30 days.

What the Law says about the Penalties for Kidnapping in NSW

According to the Australian Institute of Criminology, kidnapping is defined as the unlawful seizing or taking away of another person either against that person’s will, or against the will of any parent or legal guardian of that person.

Examples of kidnapping may include detaining someone against their wishes or transporting a person somewhere against their wishes.

There is a maximum penalty of up to 14-years imprisonment for the offence of kidnapping a person in NSW (section 86(1) Crimes Act 1900 (NSW)).

A person will be guilty of kidnapping if he/she:

• Takes or detains a person without consent; and
• Intends to hold that person to ransom; or
• Intends to commit any crime carrying at least a maximum penalty of 5-year imprisonment; or
• Intends to obtain any advantage.

Alternatively, there is a maximum penalty of up to 20-years imprisonment for the offence of aggravated kidnapping under section 86(2) Crimes Act 1900 (NSW).

A person will be guilty of aggravated kidnapping if he/she commits the above offence of kidnapping either:

• In the company of another person; or
• The alleged victim sustains actual bodily harm either at the same time, immediately prior to, or after the offence.

Further to these two types of kidnapping, there is also another version of kidnapping called specially aggravated kidnapping which carries a maximum penalty of up to 25-years imprisonment under section 86(3) Crimes Act 1900 (NSW).

A person will be guilty of ‘specially aggravated kidnapping’ if he/she commits the offence of kidnapping while being in the company of another person where the victim sustains actual bodily harm (either at the same time, immediately before or after the offence is committed).

There is a maximum penalty of up to 10-years imprisonment for abducting a child aged under the age of 12 under section 87 Crimes Act 1900 (NSW).

A person will be guilty of child abduction in NSW if he/she takes or detains a child with the intention to remove or keep the child from lawful control of a person who has parental responsibilities for the child, if it is done without consent.

A person will also be guilty of child abduction in NSW if he/she detains or takes a child with the intention to steal from the child.

The Defences to a Kidnapping Charge in NSW

You will be ‘not guilty’ to kidnaping if you acted under a necessity or duress, or if the person taken or detained is your child or where you had the consent of the parent of the child provided court orders be not being breached.

Further, you will also be considered ‘not guilty’ to a kidnapping offence if there was no action taken from you to cause the alleged victim to accompany you, or where there was nothing you did that caused the alleged victim to remain with you.

“Detaining” a person includes causing the person to remain where he or she is.

“Parent” of a child means a person who has, in relation to the child, all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children.

“Taking” a person includes causing the person to accompany a person and causing the person to be taken.

Have questions? Contact our friendly Sydney criminal lawyers today.

We’re available 24/7 and offer a free first appointment. We can be contacted directly on anytime on (02) 8606 2218.

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