Kidnapping in New South Wales.

Kidnapping is back in the news in New South Wales. Police have charged people in a run of separate matters this week, and the word appears in almost every report. The word carries a lot of weight, but the charge has a precise legal meaning. It is not enough that a person was held or moved against their will. The Crown has to prove a further purpose. This note sets out the elements, the penalties, the parent exception, the common defences, and what happens on bail and at sentence. It is general information about the law, not a comment on any current case.

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

Section 86 of the Crimes Act 1900 (NSW) creates the offence. A person is guilty if they take or detain another person, without that person's consent, with one of three intentions. The three intentions are: to hold the person for ransom, to commit a serious indictable offence, or to obtain any other advantage.

So there are three parts the Crown must prove beyond reasonable doubt. First, that the accused took or detained the person. Second, that there was no consent. Third, that the accused acted with one of the three intentions. If any part is missing, the charge fails. The prosecution does not have to prove that a ransom was paid or that the advantage was actually obtained. It only has to prove the intention was there at the time.

What does take or detain for advantage mean?

To take a person means to lead or carry them away. To detain a person means to keep them where they are and stop them leaving if they want to. Either act is enough. A person who is held in a car, a house, or a room can be detained without being moved anywhere. Movement is not required.

The word advantage is read broadly. It is not limited to money. Courts have accepted that an advantage can include forcing the person to do something, settling a grievance, or even the psychological satisfaction of the person doing the detaining. A common example is a person detained over a drug debt, or held while a phone or a PIN is demanded. The purpose behind the detention is what turns a restraint into a kidnapping.

Consent is central. If the person went along freely, there is no offence. Consent obtained by a threat or a trick is not real consent. A person lured into a car by a lie has not consented in law.

What is the maximum penalty for kidnapping in NSW?

There are three levels, and the penalty rises with each.

The basic offence under section 86(1) carries a maximum of 14 years in prison. The aggravated offence under section 86(2) carries 20 years. The specially aggravated offence under section 86(3) carries 25 years. These are among the highest maximum penalties in the Crimes Act 1900 outside homicide and sexual assault.

The aggravated and specially aggravated forms also carry a standard non-parole period. The standard non-parole period is a reference point the sentencing judge uses for an offence in the middle of the range of seriousness. For section 86(2) it is 5 years. For section 86(3) it is 7 years. The basic offence under section 86(1) has no standard non-parole period. The figures are set out in the Part 4 Division 1A table of the Crimes (Sentencing Procedure) Act 1999, collected in the Judicial Commission bench book.

What makes kidnapping aggravated or specially aggravated?

Two circumstances lift the charge. The first is that the offence was committed in the company of one or more other people. The second is that actual bodily harm was caused to the victim at the time of, or immediately before or after, the kidnapping.

If one of those two is present, the charge is aggravated under section 86(2), with a maximum of 20 years. If both are present, the charge is specially aggravated under section 86(3), with a maximum of 25 years. Actual bodily harm has the same meaning here as in an assault occasioning actual bodily harm matter. It covers injury that is more than trifling, including bruising and lasting psychological harm.

What is the difference between kidnapping and false imprisonment?

The two often get confused. False imprisonment is the common law offence of unlawfully restraining a person against their will. It does not require proof of any further purpose. Kidnapping under section 86 requires proof of one of the three intentions on top of the restraint. That extra element is what separates the two.

The two also overlap. A completed kidnapping usually involves a period of false imprisonment, because the victim is held and cannot leave. In practice, the choice of charge turns on the evidence of intention. Where the Crown cannot prove one of the three intentions, false imprisonment may be the fallback. Kidnapping is the far more serious charge and carries much higher penalties. It is related to, but different from, offences such as robbery and stalking or intimidation, which can arise out of the same facts.

Can a parent be charged with kidnapping their own child?

There is a specific exception for parents. Section 86(6) says a person does not commit the offence by taking or detaining a child if the person is a parent of the child, or is acting with a parent's consent, and is not acting against any court order about the child. A child for this purpose is a person under 16, under section 86(7).

The exception has limits. A parent who takes a child in breach of a parenting order, or in breach of an apprehended violence order, loses the protection. Family disputes that cross that line can and do result in charges. A separate offence of child abduction under section 87 also applies where a person takes a child from a parent with the intention of depriving that parent of the child. If the dispute involves an apprehended violence order, the breach itself is a further charge.

What are the defences to a kidnapping charge?

The starting point is that the Crown must prove every element. The most common defence is that one of those elements is not made out. The three that come up most are consent, the absence of the required intention, and identity.

Consent is often the live issue. If the person went with the accused freely, or was free to leave and chose to stay, there was no detention against their will. Intention is the other frequent battleground. A person may have detained another in the heat of an argument without any purpose of ransom, further offending, or advantage. If the Crown cannot prove that purpose, the kidnapping charge does not stand, though a lesser charge may.

Beyond the elements, the general defences can apply on the right facts. Duress applies where the accused was forced to act by a serious threat. Necessity applies where the act was needed to avoid a greater harm. Self-defence can apply where a person restrained another to protect themselves or someone else. Each of these is fact specific and turns on the detail of the brief.

What happens with bail and sentencing?

Kidnapping is a serious indictable offence. Bail is heavily contested. The prosecution will point to the strength of the case, the risk to the alleged victim, the risk of interference with witnesses, and the length of the sentence a person faces if convicted. A person charged with the aggravated forms usually needs a strong bail proposal, and the application is often run in the Supreme Court. Our note on the show cause test explains how the higher hurdle works.

At sentence, the charge is dealt with in the District Court, or the Supreme Court where it is joined with a more serious matter. The court assesses the objective seriousness of the offence. Relevant matters include the length of the detention, the degree of planning, the use of weapons, the level of violence, the vulnerability of the victim, and the number of people involved. The section 21A factors then guide the balance of aggravating and mitigating features. A plea of guilty entered early attracts a discount for its utilitarian value.

What we do for a person charged with kidnapping.

The work starts with bail and with the brief. The brief in a kidnapping matter usually runs to phone records, CCTV, triple zero recordings, medical evidence of any injury, and the account of the alleged victim. Each is tested. Consent and intention are the two elements that most often decide the outcome, and the evidence on both is examined closely.

Where the Crown case on intention is weak, the aim is a plea to a lesser charge or a withdrawal. Where the case is strong, the focus turns to the sentence, and to reducing the objective seriousness the court finds. Early advice matters. A person charged with this offence should get legal advice before any police interview and before any bail application.

Frequently asked.

What is the maximum penalty for kidnapping in NSW?

The basic offence under section 86(1) of the Crimes Act 1900 carries a maximum of 14 years in prison. The aggravated offence under section 86(2), committed in company or where actual bodily harm is caused, carries 20 years. The specially aggravated offence under section 86(3), in company and with actual bodily harm, carries 25 years.

What does take or detain for advantage mean?

To take means to lead or carry a person away. To detain means to keep a person where they are and stop them leaving. The Crown must also prove one of three intentions: to hold the person for ransom, to commit a serious indictable offence, or to obtain any other advantage. Advantage is read widely and can include psychological satisfaction, not just money.

What is the difference between kidnapping and false imprisonment?

Kidnapping under section 86 requires proof of one of the three specific intentions. False imprisonment is the common law offence of unlawfully restraining a person without any need to prove that further purpose. Kidnapping is the more serious charge and carries much higher penalties.

Can a parent be charged with kidnapping their own child?

Section 86(6) says a parent, or a person acting with a parent's consent, does not commit the offence by taking or detaining a child under 16, unless they are acting against a court order about the child. A parent who takes a child in breach of a parenting order or an apprehended violence order loses the protection of that exception.

Do you get bail on a kidnapping charge in NSW?

Kidnapping is a serious indictable offence and bail is heavily contested. The prosecution will point to the strength of the case, the risk to the alleged victim, and the length of sentence a person faces. A release application usually needs a strong bail proposal and is often run in the Supreme Court.

Primary sources: section 86 of the Crimes Act 1900 (NSW); the Judicial Commission sentencing bench book entry on detain for advantage / kidnapping; and decisions collected on JADE.

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 14 July 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.

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