Abduction of a Young Person under 16

Question 1

Abduction of young person under 16 - S210(1)

Act/Section/Penalty/Elements

Answer 1

CA61; S210(1)
7 years imprisonment

1. With intent to deprive a parent or guardian or other person having the lawful care or charge of a young person of the possession of the young person
2. Unlawfully
3. Takes OR entices away OR detains the young person

Question 2

Abduction of young person under 16 - S210(2)

Section/Penalty/Elements

Answer 2

CA61; Section 210(2)
7 years imprisonment

1. Receives
2. A young person
3. Knowing that he or she has been unlawfully taken or enticed away or detained
4. With intent to deprive a parent or guardian or other person having the lawful care or charge of him or her of the possession of him or her

Question 3

Consent not a defence

Answer 3

CA61; S210(3)(a)

For the purposes of subsection (1) and (2) it is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion.

A person under 16 years of age cannot consent to being taken away or detained.

Question 4

Belief that person over 16 no defence

Answer 4

S210(3)(b) CA61

It is immaterial whether the offender believes the young person to be of or over the age of 16

Question 5

Statutory defence of good faith

Answer 5

CA61; S210A

A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against S209 or 210 because he or she gets possession of the young person.

The prosecution must show beyond reasonable doubt that the defendant did not believe in good faith that he or she was so entitled.

Question 6

Abduction of a young person S210 - subsections (3) and (4)

Answer 6

(3) For the purposes of subsections (1) and (2), -
(a) it is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion; and
(b) it is immaterial whether the offender believes the young person to be of or over the age of 16.
(4) In this section young person means a person under the age of 16 years.

Question 7

R v Collister

( Big ‘C’ - Circumstantial)

Answer 7

Circumstantial evidence from which an offender’s intent may be inferred can include:

• the offender’s actions and words before, during and after the event
• the surrounding circumstances
• the nature of the act itself

Application: intent

Question 8

R v Pryce (Pryce - price - $$$ = ransom)

(Application: kidnapping (detains)

Answer 8

Detaining is an active concept meaning to “keep in confinement or custody”. This is to be contrasted with the passive concept of “harbouring” or mere failure to hand over.

Application: kidnapping (detains)

Question 9

R v Mohi

(Mohi - Mohair - from an Angoran goat - intends to shave the goat for the mohair at the time of taking him away)

Answer 9

The offence is complete once there has been a period of detention or a taking accompanied by the necessary intent, regardless of whether that intent was carried out.

Question 10

AP Simester and WJ Brookbanks

Answer 10

Knowing means “knowing or correctly believing”. The defendant may believe something wrongly, but cannot ‘know’ something that is false.

To be liable for an offence under S210(2) the offender must know that the young person they are receiving has been abducted.

Question 11

R v Forrest and Forrest

(Forest, trees, paper)

Answer 11

The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age

Application: proving age

Question 12

R v Wellard

(It’s ‘well hard’ to carry a person away)

(Application: kidnapping (takes away)

Answer 12

The essence of the offence of kidnapping is the “deprivation of liberty coupled with a carrying away from the place where the victim wants to be”.

Application: kidnapping (takes away)

Question 13

R v Crosson

(The offences CROSS over)

Answer 13

Taking away and detaining are “separate and distinct offences. The first consists of taking [the victim] away; the second of detaining them. The first offence was complete when the prisoner took the woman away against her will. Then, having taken her away, he detained her against her will, and his conduct in detaining her constituted a new and separate offence.”

Question 14

R v Cox

(Coxen in a rowing 8 - think of a coxen in a rowing 8 - steroids for the team are in the back but he knows where they are - they’re under his control and he has an intention to dish them out to the team before the race)

Answer 14

Possession involves two … elements.

The first, often called the physical element, is actual or potential physical custody or control.

The second, often described as the mental element … is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession … and an intention to exercise possession.

Application: possession

Question 15

Unlawfully

Answer 15

Without lawful justification, authority or excuse

Question 16

Entice

Answer 16

To tempt, persuade, or attract by arousing hope or desire.

Question 17

Receives

Answer 17

A question of fact and degree in each case.

Question 18

Abduction of a young person under 16 - No presumption of law because of age

Answer 18

There is no presumption of law that a person is incapable of sexual connection because of his or her age.