Violence CIB 010 Part 3 Flashcards
Abduction - liability
Section 208 *Unlawfully *Takes away or Detains * A Person * Without his or her consent OR With his or her consent obtained by fraud or duress -a) with intent to marry him or her or b) with intent to have sexual connection with him or her or c) with intent to cause him or her to be married to or to have sexual connection with some other person
Abduction Section and Penalty
Section 208 (a) or (b) or (c) Crimes Act 1961 14 years imprisonment
Unlawfully
Without lawful justification, authority or excuse
R v Crossan
Taking away and detaining are “separate and distinct offences. The first consists of taking the victim away. The second of detaining them.
R v Wellard
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.
Taking away
refers to where the victim is physically removed from one place to another
Charges relating to Section 208 taking away and detaining
Where evidence of both taking away and detaining two charges should be filed.
R v Pryce
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.
Detaining - comment
10-15 minutes in Boyd v R was considered sufficient to constitue an intrusion for detaining
R v Cox - consent
Consent is a persons conscious and voluntary agreement to something desired or proposed by another.
R v Cox Consent must be full, voluntary, free and informed. Freely and voluntarily given by a person to form a rational judgement.
Consent obtained by fraud
Consent obtained by the misrepresentation of the facts or the offenders intentions.
Consent obtained by duress
Actual or implied threat of force to the victim or another person. Can include other forms of pressure or coercion.
R v Mohi
The offence is complete once there has been a period of detention or a taking accompanied by the neccessary intent, regardless of whether that intent was carried out.
R v Waaka
Intent may be formed at any time during the taking away. If a taking away commences without the intent to have intercourse, but that intent is formed during the taking away, then that is sufficient for the purposes of the section.
Marry 208 (a)
to marry” means to engage in a marriage solemnised in accordance with the provisions of the Marriage Act 1955.
Sexual connection
Sexual Connection - Sec 2 Crimes Act 1961 (a) connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of- (i) a part of the body of another person; or (ii) an object held or manipulated by another person; or (b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus; or (c) the continuation of connection of a kind described in paragraph (a) or paragraph (b).
Kidnapping Act, Section * penalty
Section 209 (a) or (b) or (c) Crimes Act 1961 14 years imprisonment
Section 209 (a) or (b) or (c) Crimes Act 1961
*Unlawfully *Takes away or Detains *A Person *Without his or her consent OR With his or her consent obtained by fraud or duress * With Intent to: a) To hold him or her for ransom or to service OR b) To cause him or her to be imprisoned or confined OR c) To cause him or her to be sent or taken out of NZ.
R v M
The crown must prove that the accused intended to take away or detain the complainant and that he or she knew that the complainant was not consenting.
Ransom or Service
Ransom: A sum of money demanded or paid, for the release of a person being held capture. Service: Hold as a servant or slave.
Confined or imprisoned
Confined: Restricting their movements to within a geographical area. Imprisoned: To be held as if in prison.
Taken out of NZ
Sent out of New Zealand: Sent - normal meaning, to be sent out of NZ shores. Taken out of New Zealand: Taken suggests victim in company or custody of a person accompanying them out of New Zealand.
209A Crimes Act 1961
Section 209A Crimes Act 1961 For the purposes of S208 and S209, a person under the age of 16 years cannot consent to being taken away or detained.
Abduction of young person under 16 (1) Section, Penalty, Elements
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
Abduction of young person under 16 (2) Section, Penalty, Elements
Section 210(2) CA61 - 7 years imp
- With intent to deprive a parent or guardian or other person
- having the lawful care or charge of him or her or possession of him or her
- Receives a young person
- knowing they have been unlawfully taken or enticed away or detained
R v Forest and Forest
The best evidence possible in the circumstances is produced by the prosecution in proof of the victim’s age.
Section 210 (3)(a) CA 1961
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.
Section 210 (3)(b) CA 1961
S210(3)(b) CA61 It is immaterial whether the offender believes the young person to be of or over the age of 16
Section 210A CA 1961
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
What must be proved Section 210 (1)
1 The defendant took, enticed or detained a person under the age of 16 years
2 The taking, enticement or detention was deliberate or intentional
3 The taking, enticement or detention was unlawful
4 The taking, enticement or detention was from a person who had lawful care of the young person
5 The defendant knew the other person had lawful care of the young person
6 It was done with intent to deprive a parent, guardian or “other person having lawful care or charge of the young person” of possession of that young person
What must be proved Section 210 (2)
- The defendant received a person under the age of 16 years
- The receiving was deliberate or intentional
- The defendant knew the young person had been unlawfully taken or enticed away or detained by another from a parent, guardian, or other person having lawful care or charge of him or her of the possession of that young person
- The defendant intended by reason of the receiving to deprive the parent, guardian, or other person having lawful care or charge of him or her of the possession of that young person
Migrant Smuggling and Human Trafficking Act, section & penalty
Migrant Smuggling Section 98C CA61 Trafficking in persons Sections 98D CA61 20 years imp, fine not exceeding $500,000, or both
Differences between Migrant Smuggling and Human Trafficking
- Consent
- Purpose of travel/movement
- Relationship between person moved and people enabling the movement
- Violence, intimidation or coercion
- Liberty
- Profit
