Deprivation of Liberty (Qld)
The offence of deprivation of liberty is contained in section 355 of the Criminal Code 1899. It is a misdemeanour and is punishable by a maximum of three years imprisonment. A person charged with deprivation of liberty will be dealt with in the Magistrates Court (or Children’s Court if they are under 18). This article outlines the offence of deprivation of liberty in Queensland.
What is deprivation of liberty?
A person is guilty of the offence of deprivation of liberty if they unlawfully confine another person in any place against their will or otherwise deprives them of their personal liberty.
A person can be restrained by threats. The offender does not have to use physical force or physical restraints. If the person is prevented from moving around freely as he or she wants to this offence is made out.
What is not deprivation of liberty?
A person is not guilty of deprivation of liberty if they are acting lawfully. Some examples of where a person may be justified in confining another person against their will are:
- Where they are a police officer carrying out a lawful arrest;
- Where they are a parent exercising domestic discipline over their child;
- Where it is an emergency and their actions are carried out out of necessity.
An arrest is lawful if it is carried out in accordance with the Police Powers and Responsibilities Act. Police in Queensland have the power to arrest a person in a number of circumstances, including:
- To prevent the commission of a crime;
- The obtain or preserve evidence of an offence;
- To prevent the person fleeing from police;
- To preserve the safety or welfare of a person;
- To prevent the harassment of or interference with a person required to give evidence;
- Because they believe the person has committed or in committing an offence.
A police officer may use as much force as is reasonably necessary to carry out a lawful arrest. When a person is deprived of their liberty in the context of being arrested in accordance with these provisions, the offence of deprivation of liberty does not apply.
In Queensland, a parent is entitled to use reasonable force to correct, discipline, manage or control their child or a child who is temporarily in their care. This right is contained in section 280 of the Criminal Code 1899.
A person who confines a child in a place against the child’s will while acting within the bounds of reasonable domestic discipline is not guilty of deprivation of liberty.
The defence of necessity can be argued in a situation where an act would ordinarily amount to a criminal offence but extreme circumstances have made it a necessity. An example of where this may be applied to the offence of deprivation of liberty is where a person confines another person to a house or car because there is an extreme weather event or an outbreak of extreme violence going on outside and the person would be in danger of death or serious injury if they move.
The offence of deprivation of liberty is a misdemeanour and must be finalised in the Magistrates Court if the accused is an adult or in the Children’s Court if the accused is a child.
Whilst the maximum penalty for the offence of deprivation of liberty is imprisonment for three years, the court may also consider imposing lesser penalties such as community-based order, good behaviour bond or a fine. It may also impose a period of imprisonment that is wholly or partly suspended.
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