Kidnapping and detain for advantage in NSW.

The charge in the news.

A 28-year-old man was charged on 25 June 2026 over a kidnapping in Sydney last year. The police account is that a man was taken at gunpoint, held, and released after a ransom was sought. The accused was refused bail and the matter is before the Local Court. He is presumed innocent. We hold no instructions in the case and pass no comment on its facts.

A charge of this kind brings several offences with it. Kidnapping is the lead count. Firearm offences, demanding money with menaces, and being part of a criminal group often travel alongside it. This article deals with the lead count. The full text of the section is on the NSW legislation site, and the Judicial Commission sets out how courts read it in the Criminal Trial Courts Bench Book.

What is kidnapping under section 86 of the Crimes Act 1900?

Section 86 makes it an offence to take or detain a person, without that person's consent, with one of three intents. The intents are: to hold the person to ransom, to commit a serious indictable offence, or to obtain any other advantage. The everyday name for the offence is kidnapping. The longer name used in the section is take or detain a person for advantage.

The Crown has to prove four things. First, that the accused took or detained the complainant. Second, that the complainant did not consent. Third, that the accused knew the complainant did not consent, or was reckless as to consent. Fourth, that the accused had one of the three intents at the time. The intent is the part that does the work. Without it, the conduct may be a different and lesser offence, or none at all.

The words take or detain are read in the ordinary way. To take a person is to lead, carry, or move them. To detain a person is to keep them where they are. A person who is held in a car, a flat, or a room, against their will, is detained. The complainant does not need to be moved at all for the offence to be made out.

What is the maximum penalty for kidnapping in NSW?

There are three tiers. The basic offence under section 86(1) carries a maximum of 14 years. The aggravated offence under section 86(2) carries a maximum of 20 years. The specially aggravated offence under section 86(3) carries a maximum of 25 years. Each tier is a strictly indictable offence, dealt with in the District Court or, for the most serious matters, the Supreme Court.

The tier turns on two facts. The first is whether the offence was committed in the company of another person. The second is whether actual bodily harm was caused to the complainant at the time of, or immediately before or after, the kidnapping. One of those facts lifts the charge to the aggravated tier. Both of them together lift it to the specially aggravated tier.

Basic, aggravated, and specially aggravated kidnapping.

The three tiers are set out in plain steps in the section.

Basic, section 86(1), 14 years.

One person, no bodily harm. The complainant is taken or detained without consent, with one of the three intents. This is the starting point and the floor.

Aggravated, section 86(2), 20 years.

The offence is aggravated if it was in company, or if actual bodily harm was caused. In company means at least one other person took part with the accused, present and sharing in the act. Actual bodily harm is harm that is more than transient or trifling: bruising, cuts, or lasting pain can meet it.

Specially aggravated, section 86(3), 25 years.

Both elements together. The offence was in company and actual bodily harm was caused. This is the tier most ransom and standover cases are charged at, because these jobs are rarely done alone and rarely done gently. A jury that is not satisfied of the higher tier can return a verdict on a lower one.

What does detain for advantage mean?

The third intent in section 86 is to obtain any other advantage. This is the widest of the three and the one that catches the most cases. The advantage does not have to be money and does not have to be a ransom. Courts have read the word broadly.

Recovering a drug debt is an advantage. Forcing a person to hand over a PIN or a phone is an advantage. Holding a person to pressure a relative is an advantage. A sexual purpose is an advantage. The point is that the accused detained the complainant to get something out of the situation. The advantage can be for the accused or for someone else.

Kidnapping or false imprisonment: what is the difference?

False imprisonment is the older common law offence. It is made out where a person is detained without lawful justification, full stop. There is no need to prove any further intent. It is the right charge where a person is shut in a room out of anger or to stop them leaving, with nothing to be gained.

Kidnapping under section 86 needs the extra intent. The detention has to be aimed at ransom, at a serious indictable offence, or at some other advantage. That is why kidnapping carries a much higher maximum. The same physical act, holding a person against their will, becomes a far graver charge once the Crown can prove the purpose behind it. The choice between the two charges is a regular fight at the committal and again at trial.

How is kidnapping sentenced in NSW?

There is no standard non-parole period for kidnapping. The court works from the maximum for the tier, the objective seriousness of the act, and the subjective case for the offender. The Judicial Commission collects the sentencing principles in the Sentencing Bench Book, and the recorded outcomes show that full-time custody is the usual result for anything past the lowest end.

Objective seriousness is driven by a handful of facts. How long was the person held. Was a weapon used. Was violence used, and how much. How many offenders were there. Was the person planned as a target or taken on the spur of the moment. Was there a demand, and was it met. A short, opportunistic detention with no weapon sits low. A planned ransom job at gunpoint, with the person held for hours and beaten, sits near the top.

The subjective case is the rest of the work. Age, prior record, mental health, prospects, remorse, and a plea all bear on the sentence. A plea entered early attracts a discount of up to 25 per cent for its utilitarian value. The way that discount is applied is set out in our note on the early plea discount in NSW.

Will I get bail on a kidnapping charge?

Bail is hard but not impossible. Kidnapping is a serious indictable offence, and a section 86 charge will often answer the description of a serious personal violence offence in the Bail Act 2013 (NSW). Where the matter also carries firearm charges, or the accused has a relevant prior conviction, the show cause requirement under section 16B can apply. That means the accused has to show cause why detention is not justified before the court even reaches the question of unacceptable risk.

In practice the first bail decision on a kidnapping is contested in the Local Court and refused, then run again in the Supreme Court with a proper application. How the show cause test is met, and what a strong application looks like, is set out in our guide on show cause and section 16B. A surety, a residence away from the complainant, reporting, and a curfew are the kind of conditions that can answer the risk.

What are the defences to a kidnapping charge?

The defences track the four things the Crown must prove. Each is a place the case can fail.

Consent is the first. If the complainant went along willingly, there is no kidnapping. This is a live issue where the two knew each other and the account is disputed. Intent is the second. If the Crown cannot prove that the accused had one of the three intents, the charge fails, even if a detention happened. Identification is the third. Ransom and standover jobs are often run on circumstantial evidence: phones, cell-site data, CCTV. Whether the Crown can place the accused at the scene, and as a participant rather than a bystander, is frequently the whole case. Lawful authority is the fourth, and it is narrow. A citizen's arrest or a parent acting lawfully toward a child can be lawful detention, but the limits are tight.

Many kidnapping briefs also fight the aggravating elements rather than the base charge. Whether the harm was actual bodily harm, and whether the accused was truly in company, can move the matter down a tier and take years off the maximum. That work starts with the brief.

What we do for clients facing this charge.

A kidnapping charge starts in custody. The first job is bail. We get the brief, find the weak points in the Crown case, and build the application for the Supreme Court. The second job is the charge itself: which tier, and whether the firearm and group counts stand. The third is the path, whether that is a defended hearing, a negotiated plea to a lesser count, or a plea with a strong subjective case.

Related charges often run with a kidnapping. We deal with robbery, unauthorised firearm possession, assault occasioning actual bodily harm, and stalk or intimidate on the same brief. If police want to interview you about any of this, read our guide on police interviews first and call before you say a word.

Frequently asked.

What is the maximum penalty for kidnapping in NSW?

Section 86 of the Crimes Act 1900 (NSW) sets three tiers. The basic offence under section 86(1) carries 14 years. The aggravated offence under section 86(2) carries 20 years, where the offence was in company or actual bodily harm was caused. The specially aggravated offence under section 86(3) carries 25 years, where both the in-company element and the bodily harm element are present.

What is the difference between kidnapping and false imprisonment in NSW?

Kidnapping under section 86 requires a specific intent: to hold the person to ransom, to commit a serious indictable offence, or to obtain any other advantage. False imprisonment is a common law offence that requires only that a person was detained without lawful justification. The intent to gain an advantage is the dividing line.

Is kidnapping a serious offence for bail in NSW?

Yes. Kidnapping is a serious indictable offence. A charge under section 86 of the Crimes Act 1900 (NSW) often falls within the definition of a serious personal violence offence in the Bail Act 2013 (NSW), and where the matter also involves firearms or a relevant prior conviction the show cause requirement under section 16B can apply. Bail is decided by the Supreme Court in serious cases.

Does the victim have to be moved for it to be kidnapping?

No. Section 86 uses the words takes or detains. A person who is held in one place, without consent, with the relevant intent can be the subject of a kidnapping charge even if they are never moved. Movement is one way to commit the offence, not a requirement.

What does detain for advantage mean?

It is the everyday name for kidnapping under section 86 where the intent is to obtain any other advantage. The advantage does not have to be money. Courts have read advantage widely. A debt, a sexual purpose, control over the person, or pressure on a third party can all be an advantage for the purpose of the section.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 30 June 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

← Back to all news