Kidnapping in NSW.

The word kidnapping calls to mind a ransom note and a hostage. The offence in NSW is wider than that. It reaches any case where one person takes or holds another against their will to get some benefit from it. A charge can follow a debt dispute, a drug rip, a standover, or a family conflict, as well as the classic ransom demand. This note sets out what the Crown must prove, the three levels of the offence, the defences that arise, and how these matters run through the courts. It is a framework note. A police charge is an allegation. Every person charged is presumed innocent until a court finds otherwise.

What is kidnapping under NSW law?

Kidnapping is created by section 86 of the Crimes Act 1900 (NSW). The section does not use the label. It describes the conduct. A person is guilty if they take or detain another person, without the other person's consent, and do so with intent to hold that person to ransom, to commit a serious indictable offence, or to obtain any other advantage.

The words to obtain any other advantage do a lot of work. The advantage does not have to be money. It can be recovery of a debt, punishment of the victim, pressure on a third person, or the chance to commit another crime. Courts have read advantage broadly. That is why a standover over an unpaid drug debt can be charged as kidnapping, and why a group who force a person into a car to move them to another place can face the same charge. The Judicial Commission of NSW collects the authorities in its criminal trial bench book note on take or detain for advantage.

What must the prosecution prove?

For the basic offence the Crown must prove three things beyond reasonable doubt. First, that the accused took or detained the other person. Second, that the other person did not consent. Third, that the accused acted with intent to hold the person to ransom, to commit a serious indictable offence, or to obtain any other advantage.

Each element is a battleground. The taking or detaining has to be more than a fleeting restraint. Consent has to be real, not obtained by force or fear or a trick. The intent has to exist at the time of the taking or the detaining, and it has to be an intent to obtain the advantage, not a wish that arises later. These are the points a defence tests at committal and at trial.

What is the difference between take and detain, and what does in company add?

Take and detain describe two ways of committing the same offence. Taking a person means causing them to go somewhere or to accompany another person. Detaining a person means causing them to stay where they are. A charge can rest on either. Forcing someone into a vehicle is a taking. Holding someone in a house is a detaining. A single episode can involve both.

In company means the accused committed the offence with one or more others who were present and shared the purpose. Presence matters. A person waiting in the car outside can still be in company if they were part of the joint plan and close enough to lend force to it. The label of in company is not a throwaway. It raises the maximum penalty and it changes how a court views the seriousness of the conduct, because a victim who faces a group is in a worse position than a victim who faces one person.

What are the aggravated and specially aggravated forms?

Section 86 sets three levels. 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.

The offence is aggravated if it is committed in company, or if actual bodily harm is caused to the victim at the time of, or just before or after, the kidnapping. The offence is specially aggravated if both of those things are present, that is, the accused acted in company and actual bodily harm was caused. Actual bodily harm means an injury that is more than trifling. Bruising, cuts, and lasting pain can meet the test. The step up from 14 to 20 to 25 years shows how seriously Parliament treats a group attack that also hurts the victim.

What defences apply to a kidnapping charge?

The most common answer to a kidnapping charge is that an element is missing. If the person went willingly, there is no offence, because consent defeats the charge. If the restraint was momentary and there was no intent to obtain an advantage, the charge fails. If the accused believed they had a lawful right to detain the person, that belief can negate the intent. These are not technicalities. They go to the heart of what section 86 requires.

Beyond the elements, the general defences can apply. Duress arises where the accused acted under a threat of serious harm and had no safe way out. Necessity can arise where the act was needed to avoid a greater harm. Where the person taken is a young child of the accused, the matter is usually handled under child abduction and family law rather than section 86, though a parent who acts in breach of a court order can still be charged. Identity is often the real issue in a group case, where the question is not whether a kidnapping happened but whether this accused was one of the people involved. A number of general kidnapping defences are set out in this practitioner overview.

Which court hears kidnapping, and can you get bail?

Kidnapping under section 86 is a strictly indictable offence. It starts in the Local Court, where the first appearance and the committal are dealt with, and it is finalised in the District Court of NSW before a judge and jury, or a judge alone on a plea. It cannot be finalised in the Local Court.

Bail is decided under the Bail Act 2013 (NSW). Bail can be granted on a kidnapping charge, but the seriousness of the offence weighs heavily in the assessment of unacceptable risk. Where the alleged conduct falls within a show cause category, the accused must first show cause why detention is not justified, and only then does the court move to the unacceptable risk test. A refusal in the Local Court can be reviewed in the Supreme Court. We set out the mechanics in our guides to show cause bail in NSW and to bail conditions.

How are kidnapping offences sentenced?

There is no standard non-parole period for section 86. The court sentences under the Crimes (Sentencing Procedure) Act 1999 (NSW) by weighing the objective seriousness of the offence against the subjective circumstances of the offender. The role of the accused in the episode is the single largest factor. A person who planned and directed the kidnapping sits high. A person recruited to drive or to stand guard, who knew less and gained less, sits lower. The presence of a weapon, the use of violence, the length of the detention, the fear caused to the victim, and any lasting injury all raise the objective seriousness.

A guilty plea entered early attracts a utilitarian discount of up to 25 per cent. Youth, a clean record, mental health, and genuine remorse pull the sentence down. The Judicial Commission's sentencing bench book note on detain for advantage and kidnapping gathers the appellate authority that guides where a given case lands. Primary sources for the offence and the sentencing cases can be searched on JADE.

Where the extra charges fit.

A kidnapping prosecution rarely stands alone. In an organised-crime matter it is often joined by a charge of directing the activities of a criminal group under section 93T of the Crimes Act 1900 (NSW), which targets the person giving the orders rather than the person carrying them out, and by aggravated break and enter under section 112, where entry to a home and an assault are alleged. Each of these is a separate charge with its own elements and its own maximum. They travel together because they describe different parts of the same alleged plan. A defence has to meet each one on its own terms.

Our charge pages set out the related offences in more detail, including robbery in NSW and unauthorised firearm possession, both of which frequently appear alongside a take and detain charge.

What we do for a person charged with kidnapping.

The first task is bail. A person refused bail in the Local Court can apply to the Supreme Court, and a strong release application built early can change the shape of the whole matter. The next task is the brief. Kidnapping cases turn on identification, on phone and vehicle tracking, on CCTV, and on the accounts of witnesses who are often themselves involved. Each of these is tested. The role of the accused is the point that decides the sentence if the matter resolves, so the work on role starts at the beginning, not at the plea.

Where the Crown case is strong on the fact of a kidnapping but weak on the role of a particular accused, the negotiation with the prosecution can move a client from a leading role to a minor one, or from a specially aggravated charge to the basic offence. That difference is measured in years. It is the reason a person charged with a section 86 offence should get advice before the first mention, not after.

Frequently asked.

Is kidnapping the same as take and detain for advantage in NSW?

Yes. Section 86 of the Crimes Act 1900 (NSW) does not use the word kidnapping in the section itself. The offence is taking or detaining a person, without consent, with intent to hold them to ransom, to commit a serious indictable offence, or to obtain any other advantage. Charge sheets describe it as take or detain in company, or take or detain for advantage. People call it kidnapping.

What does in company mean on a kidnapping charge?

In company means the accused was with one or more other people who shared a common purpose and were physically present, so that the victim faced the combined force of the group. It lifts the basic offence into the aggravated form under section 86(2), with a maximum of 20 years.

Can a parent be charged with kidnapping their own child in NSW?

A parent taking their own child is usually dealt with as a family law or child abduction matter, not section 86. Lawful authority and the absence of intent to gain an advantage are relevant. A parent who takes a child in breach of a court order can still face charges, so early advice matters.

What is directing the activities of a criminal group?

Section 93T of the Crimes Act 1900 (NSW) makes it an offence to direct the activities of a criminal group, knowing it is a criminal group and knowing or reckless that the direction adds to its criminal activity. The offence targets the person giving instructions rather than the person carrying out the act. It often runs alongside a kidnapping charge in an organised-crime prosecution.

How long do you go to jail for kidnapping in NSW?

The maximum is 14 years for the basic offence, 20 years for the aggravated form, and 25 years for the specially aggravated form. What a court imposes in a given case turns on the role of the accused, the presence of a weapon, the harm to the victim, the plea, and the prior record. There is no standard non-parole period for section 86.

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 12 August 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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