Clarity Law

Specialist Criminal Law Firm Queensland
Tuesday, 21 May 2024 09:51

Kidnapping

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kidnapping charge

Kidnapping is a serious offence to be charged with in Queensland. This page is designed to provide people charged with kidnapping or who are seeking more information about the charge, what the court process is and importantly what the penalties may be. 

 

What does the law say?

Section 354 of the Criminal Code defines kidnapping as 

  1. Any person who kidnaps another person is guilty of a crime.

Penalty—

Maximum penalty—7 years imprisonment.

  1. A person kidnaps another person if the person unlawfully and forcibly takes or detains the other personwith intent to gain anything from any person or to procure anything to be done or omitted to be done by any person.

 

What does the Prosecution have to prove?

The Prosecution to succeed with a Kidnapping in Queenslanbd case must prove the elements of the offence, beyond a reasonable doubt (see our article here on criminal burden of proof). The elements of the offence that the prosecution must prove are that the Accused:

  1. Took or detained another person;

  2. The taking or detention was done forcibly;

  3. The taking or detention was unlawful, meaning not authorised, justified or excused by law;

  4. With intent to gain anything from that person or to procure anything to be done or omitted to be done by any person.

Looking individually at the elements of the offence, it is plain to see what is meant by Parliament as to what constitutes the offence, however there is some specific clarification with respect of element 4.

The first three elements being unlawfully, forcibly and took or detained take their ordinary, everyday meaning and do not require additional interpretation.

The court in 2004, determined that the word ‘procure’ means to facilitate, enable, bring about or cause and is not limited simply to meaning to compel or induce.

 

What does this charge look like?

This charge can range in its presentation from a person abducting a child to a spontaneous robbery gone wrong.

It involves the use of force, albeit not strictly an assault, to force another person to submit to the accused’s will in order to gain something.

 

Defences

What are the defences to this charge? The usual defences may be available to this offence, being:

  1. Duress;
  2. Mistake of fact;
  3. Identify;

Specific to this offence, other available defences may be:

  1. Lawful or justified authority to detain the person; or

  2. Consent – the other person consented to the restriction.

It is critical to note that each case turns on its own facts, and the success of a defence depends almost entirely on the specific facts and circumstances of your case.

 

What Court hears this charge?

Kidnapping is a strictly indictable offence, meaning it must be finalised in the District Court. The matter will begin in the Magistrates Court and will then need to proceed through the committal process and an indictment presented in the District Court.

 

Penalties

The maximum penalty for this offence is 7 years imprisonment.

Let it be clear – a person guilty of this offence can expect to receive a sentence of imprisonment. It will then be your lawyers job to present the case in a matter, taking into consideration the circumstances of the offence, the facts of the case, the level of violence used and the defendants antecedents to determine whether a custodial sentence is warranted or if a non-custodial sentence is available.

Kidnapping is an offence which is considered a serious violent offence, as such if the Court makes a Serious Violent Offence declaration, the court will order that the defendant serve 80% of their head sentence, as opposed to one third, which is a common sentencing yardstick.

 

What if a Police Officer wants to talk to me?

Never talk to the police without getting legal advice first. It’s rare you can explain a situation away and even if you are innocent or have a defence you can make the situation worse by talking to the police.

Read more with our article: Police Questioning and your Right to Silence

 

 Legal Representation Matters

If you are facing a charge for Kidnapping, the importance of seeking experienced legal representation cannot be overstated. Legal professionals specializing in criminal law, such as Clarity Law, possess the expertise necessary to provide valuable guidance and build a robust strategy, tailored to the specifics of your case.

For anyone charged with or accused of Kidnapping in Queensland, remember that this article serves merely to inform and should not be taken as legal advice. Every situation is unique and demands the personalized attention of a professional. If you require assistance or more information, it is recommended that you contact a legal practitioner who can provide specific guidance related to your case, what the law is, how the offence is dealt with in the District Court and whether you will have any defences to the offence or if negotiations with the prosecutor is possible.

For immediate assistance, you can reach out to Clarity Law at 1300 952 255 for support from a team of dedicated lawyers who pride themselves on ensuring that good people make it through tough times.

 

 Engaging Clarity Law to act for you

Engaging us gives you the best chance at trying to avoid serving time in prison.   We are one of the leading criminal law firms in South East Queensland.  Just some of the benefits of us acting for you include:

  1. we know the judges and what they need to hear to give you the best outcome

  2. we have good relationships with the prosecutors meaning we can often have them not seek an actual prison sentence

  3. we are there to help you through the process and make everything as stress free as possible

  4. engaging us shows the court you are taking your charges seriously

  5. you will be fully informed of what is to happen in court and what this means for you after court

  6. unlike the police or the Judge, we are there to look after you, your privacy and your interests

 

How do I get more information or engage you to act for me? 

If you want to engage us or just need further free information or advice then you can either;

  1. Use our contact form and we will contact you by email or phone at a time that suits you

  2. Call us on 1300 952 255 seven days a week, 7am to 7pm

  3. Click here to select a time for us to have a free 15 minute telephone conference with you

  4. Email the firms founder on This email address is being protected from spambots. You need JavaScript enabled to view it.

  5. Click the help button at the bottom right and leave us a message

We are a no pressure law firm, we are happy to provide free initial information to assist you. If you want to engage us then great, we will give you a fixed price for our services so you will know with certainty what we will cost. All the money goes into a trust account monitored by the Queensland Law Society and cannot be taken out without your permission or until we are legally allowed to.

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Jack Marshall

Jack is a former soldier and now a criminal defence lawyer with Clarity Law. He helps clients navigate the court process and get the best results.