Deprivation of Liberty (QLD)

The law protects every person’s right to freedom and their ability to move about freely and make their own decisions about where and when they may decide to stay or leave any place. It is a serious offence to interfere with a person’s liberty by keeping them in a place against their will.  Historically, the law has referred to this type of conduct as “false imprisonment”.  Today, if a person engages in this kind of behaviour, they will often be charged with the offence of Deprivation of Liberty.  In Queensland, this offence is categorised as a misdemeanor and if a person is convicted, the offence carries significant penalties, including terms of imprisonment.  This offence is commonly charged in situations involving domestic violence and interpersonal conflict.

What is ‘Deprivation of Liberty’?

Under section 355 of the Criminal Code (Qld), a person will commit the offence of Deprivation of Liberty if they:

• unlawfully confine or detain another person against that other person’s will; or
• deprive the other person of their personal liberty.

There is no special legal definition of the words “confine” and “detain” at law, these terms retain their ordinary meaning and can include holding back a person, delaying them, or stopping them, or keeping them under restraint.

Importantly, the ‘Deprivation’ is not limited to the denial of a person’s will, but can also occur by fraud, or where the person lacks capacity or knowledge of the deprivation (for example when a person is asleep, they may not be aware they are locked in a room with no means of escape).  

Maximum Penalty

The maximum penalty for the offence of Deprivation of Liberty is 3 years imprisonment. 

The Following Acts Constitute Deprivation of Liberty:

• Preventing or not allowing a person to leave a house, or room when they have made it clear they want to leave.
• Locking a person in a confined space (like a cupboard, shed or room) with no means of escape
• Forcing a person into a vehicle and refusing to let them out or driving them somewhere against their will

What Must Be Proven?

To successfully prosecute someone for a charge of Deprivation of Liberty, prosecution must be able to prove each of the following matters beyond a reasonable doubt:

1. The Defendant has ‘detained’ or ‘confined’ the Complainant in any place
2. The detainment or confinement of the Complainant was against the Complainant’s will; and
3. The detainment or confinement of the Complainant was unlawful (not authorised, justified or excused by law or by the application of some legal defence). 

 Or alternatively

1. The Defendant has ‘deprived’ the Complainant of their ‘personal liberty’; and

1. The deprivation was unlawful (not authorised, justified or excused by law or by the application of some legal defence). 

If the prosecution is unable to prove each of the above elements, the accused person should be found ‘not guilty’. 

Which Court Will Hear the Matter?

The offence of Deprivation of Liberty is usually commenced and finalised summarily before a Magistrate in the Magistrates Court of Queensland.   In some cases, if the charge is related to and charged alongside other more serious matters, the charge can be committed to the District Court of Queensland along with those other more serious charges, where it will then be finalised before a District Court Judge. 

Possible Defences to Deprivation of Liberty

The following defences or lawful excuses may be available to a person charged with Deprivation of Liberty:

• Where the Complainant has consented  

• • If a Complainant has freely consented to being detained, or confined to a certain place and in the manner alleged, the Defendant cannot be said to have deprived that person of their liberty “against their will” and the charge may be dismissed

• Where the Defendant had legal justification 

• • If a Defendant can show they had a lawful justification for detaining or confining a person against their will (for example a police officer lawfully exercising their powers of arrest), the element of ‘unlawfulness’ may not be proved, and the charge may be dismissed. 

• Domestic Discipline of children

• • If the confinement was of a child, and was done by a parent (or a person in place of a parent) by way of correction, management or control, to discipline the child, it will generally not be unlawful, so long as the confinement was not excessive and was reasonable in the circumstances.  

• Necessity 

• If a Defendant can show that their actions of confining the person were reasonably necessary in order to resist actual and unlawful violence threatened to them to another person with them.

Common Questions about Deprivation of Liberty

Will I go to jail or have a conviction recorded for this offence?

The offence of Deprivation of Liberty is a serious offence, which can often result in terms of actual imprisonment if a person is convicted. The following is a list of potential sentences a Queensland Court can make (in order of seriousness, from least serious to most serious):

• Convict and not further punish
• Release upon entering into a recognisance, with no conviction recorded (also known as a Good Behaviour Bond)
• A monetary fine
• Probation 
• Community Service
• An Intensive Corrections Order
• Suspended Orders of Imprisonment
• Imprisonment 

Which of the above sentencing options the court will prefer for a charge of Deprivation of Liberty will largely depend on a number of matters, including but not limited to:

• How protracted the offending was/ how long the person was confined/ detained (the longer the period over which the person was detained against their will, the more serious)
• Whether violence was threatened or used (if violence has been used or threatened, this would be seen as an aggravating feature and the sentence is more likely to include imprisonment); and
• Whether the Defendant has any criminal history (if the Defendant has previous criminal history for offences of a like nature this will be seen as a further aggravating feature on sentence leading to a more significant penalty/ lengthier term of imprisonment)

If you are contacted by police and they want to talk to you about a charge of Deprivation of Liberty, or any other criminal matter, it’s important you receive good advice at the earliest opportunity and before speaking with police or anyone else about the matter.   

Armstrong Legal provides expert legal advice and representation for offences of this nature. Contact Armstrong Legal now to arrange an obligation free consultation.