South Australian Numbered Acts

STATUTES AMENDMENT AND REPEAL (AGGRAVATED OFFENCES) ACT 2005 (NO 62 OF 2005) - SECT 13

13—Substitution of Part 3 Division 9

Part 3 Division 9—delete Division 9 and substitute:

Division 9—Kidnapping and unlawful child removal

38—Interpretation

In this Division—

"child" means a person under the age of 18 years;

"detain"—detention is not limited to forcible restraint but extends to any means by which a person gets another to remain in a particular place or with a particular person or persons;

"take"—a person takes another if the person compels, entices or persuades the other to accompany him or her or a third person.

39—Kidnapping

        (1)         A person who takes or detains another person, without the other person's consent—

            (a)         with the intention of holding the other person to ransom or as a hostage; or

            (b)         with the intention of committing an indictable offence against the other person or a third person,

is guilty of an offence.

Maximum penalty:

            (a)         for a basic offence—imprisonment for 20 years;

            (b)         for an aggravated offence—imprisonment for 25 years.

        (2)         A consent to the taking or detention is to be ignored in the following cases:

            (a)         if the person apparently giving the consent is a child or mentally incapable of understanding the significance of the consent;

            (b)         if the consent was obtained by duress or deception.

40—Unlawful removal of child from jurisdiction

        (1)         A person who wrongfully takes or sends a child out of the jurisdiction is guilty of an offence.

Maximum penalty:

            (a)         for a basic offence—imprisonment for 15 years;

            (b)         for an aggravated offence—imprisonment for 19 years.

        (2)         For the purposes of subsection (1), a person acts wrongfully if—

            (a)         the person acts in the knowledge that a person who has the lawful custody of the child (either alone or jointly with someone else) does not consent to the child being taken or sent out of the jurisdiction; and

Note—

As a general rule, the parents of a child have joint custody of the child (see Guardianship of Infants Act 1940 , section 4).

            (b)         there is no judicial or statutory authority for the person's act.