Abduction of a Young Person under 16

Question 1

Abduction of young person under 16 (1)

Section, Penalty, Elements

Answer 1

Section 210(1) CA61 - 7 years imp

With intent to deprive a parent or guardian or other person who has the lawful care or charge of a young person of the possession of a young person

Unlawfully

Takes or entices away or detains the young person

Question 2

Abduction of young person under 16 (2)

Section, Penalty, Elements

Answer 2

Section 210(2) CA61 - 7 years imp

Receives a young person, knowing they have been unlawfully taken or enticed away or detained

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

Intent

Answer 3

(1) intent to take, entice or detain a young person and intent to deprive the parent.
(2) above and receive young person with intent to deprive the person who has lawful care, or knew that was the intent of the person who took the young person

Not necessary to prove intent was to permanently deprive

Question 4

Lawful care or charge

Answer 4

Against custodial rights of the parent or guardian

includes Oranga Tamariki

Question 5

Posession

Answer 5

Physical - physical custody or control and can be actual or potential
Mental - combination of both knowledge that the person possesses the item in question and intention to possess the time.

Question 6

R v Cox

Answer 6

Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, 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.

Question 7

R v Forrest and Forrest

Answer 7

The best evidence possible in the circumstances is produced by the prosecution in proof of the victim’s age.

Question 8

Unlawfully

Answer 8

Without lawful justification, authority or excuse.

For crown to prove beyond reasonable doubt.

Question 9

R v Wellard

Answer 9

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

Question 10

R v Crossan

Answer 10

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 different offence.

Question 11

R v Pryce

Answer 11

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

Question 12

Entices

Answer 12

(Tap into hopes and desires)

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

Tempting children away by offering sweets or where a persuading a child to come with them contrary to the court order by promising to take the child to the playground

Question 13

R v Mohi

Answer 13

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 14

Receives

Answer 14

Receiving physical custody of the young person. Several people may jointly ‘receive’.

In each case this will be a question of fact or degree.

Question 15

Knowing

Simester and Brookbanks

Answer 15

Knowing means knowing or correctly believing, the defendant may believe something wrongly but cannot know something that is false.

Question 16

Consent not a defence

Answer 16

S210(3)(a) CA61

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.

Question 17

Belief that person over 16 no defence

Answer 17

S210(3)(b) CA61

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

Question 18

Good Faith Defence

Answer 18

Section 210A CA61
A person who claims in good faith a right to the possession of a young person under the age of 16 cannot be convicted of an offence against S209 or 210 because he or she gets possession of the young person. Does not apply to S208

Up to crown to establish defendant did not believe in good faith, as claimed.

Question 19

Abduction of young person under 16 (1) liability

Answer 19

Section 210(1) CA61 - 7 years imp

With intent to deprive a parent or guardian or other person who has the lawful care or charge of a young person
-intent
-person having lawful care or charge
-young person
-R v Forest and forest
of the possession of a young person
-possession
-R v Cox
Unlawfully 
-meaning
Takes or entices away or detains the young person
-meaning
Child cannot consent

Question 20

Abduction of young person under 16 (2) liability

Answer 20

Section 210(2) CA61 - 7 years imp

Receives a young person
-receives
-young person
-R v Forest and Forest 
knowing they have been unlawfully taken or enticed away or detained 
-Simester and Brookbanks
-unlawfully meaning
-take away/entice/detain meaning
With intent to deprive a parent or guardian or other person having the lawful care or charge of him or her
-intent
-person having lawful care or charge
-young person
-R v Forest and forest
of the possession of him or her
-possession
-R v Cox