Queensland treats deprivation of liberty as a serious criminal offence. The penalties are severe, with courts imprisoning nearly half of all convicted offenders. Under Queensland law, this offence refers to the unlawful confinement or detention of someone against their will, effectively taking away their personal freedom.
The numbers tell a clear story; Queensland recorded 26 cases compared to New South Wales’s 210 cases in 2022. Section 355 of the Criminal Code 1899 (QLD) states that anyone convicted of this offence could face up to three years’ imprisonment. However, courts may suspend sentences or grant probation where appropriate.
This article outlines what constitutes deprivation of liberty, what the prosecution must prove, and the possible defences available.
Understanding Deprivation of Liberty in QLD
Queensland’s criminal justice system views deprivation of liberty as a violation of a basic human right: personal freedom. The Human Rights Act 2019 (QLD) protects this through the right to liberty and security of person.
Definition under Section 355 of the Criminal Code
Section 355 of the Criminal Code 1899 (QLD) states:
“Any person who unlawfully confines or detains another in any place against the other person’s will, or otherwise unlawfully deprives another of the other person’s personal liberty, is guilty of a misdemeanour and is liable to imprisonment for 3 years.”
This definition covers two main scenarios:
- Unlawfully confining or detaining someone against their will
- Otherwise unlawfully depriving someone of their personal liberty
Courts interpret “personal liberty” as the ability to act without restraint and move freely.
What ‘unlawfully confining or detaining’ means
To “detain” means to keep someone in confinement or under restraint. Physical force isn’t always required: threats, deception or coercive control can be enough to remove someone’s liberty. Queensland courts have found that:
- Threats alone can amount to restraint
- Making someone stay somewhere against their will can be sufficient
- Fraud or deception can result in deprivation
- The offence can occur while the victim is asleep or lacks capacity
In short, deprivation of liberty means taking away a person’s freedom to move or act as they wish.
Difference Between Lawful and Unlawful Deprivation
Not all restrictions on movement are unlawful. Certain people and authorities can lawfully confine others in specific circumstances, such as:
- Police officers making lawful arrests under the Police Powers and Responsibilities Act
- Parents exercising reasonable domestic discipline (Section 280 of the Criminal Code)
- Mental health professionals acting under authorised mental health legislation
- Emergencies requiring temporary restraint to prevent harm
- Court-ordered detention after conviction
Unlawful deprivation occurs when there is no proper legal authority or justification.
What the Prosecution Must Prove
To convict someone of deprivation of liberty, prosecutors must prove beyond reasonable doubt that:
1. The act of confinement or detention
There must be evidence showing the defendant confined or detained the complainant, either physically or by creating circumstances that prevented them from leaving freely.
2. Lack of consent or legal authority
The prosecution must show that the act occurred against the complainant’s will and without legal authorisation.
3. Use of threats or coercion
Physical force isn’t required. Using intimidation or threats to restrict someone’s movement can also amount to deprivation of liberty.
4. Mental capacity and knowledge of the victim
The offence can still occur if the victim is unaware of their confinement, such as when asleep or unable to consent. This protects vulnerable individuals from exploitation or harm.
Penalties and Sentencing Guidelines
Section 355 sets a maximum penalty of three years’ imprisonment. Actual sentences vary depending on the case.
Factors that influence sentencing
Courts consider factors such as:
- The duration and nature of the confinement
- Whether violence or threats were used
- The offender’s prior criminal record
- Whether there were related charges (e.g., assault or breach of a domestic violence order)
Impact of domestic relationships
If the offence occurs in a domestic relationship, it is treated more seriously under Queensland’s domestic violence laws. The court may issue or vary a Domestic Violence Order (DVO) in such cases.
When imprisonment is likely
About half of all deprivation of liberty cases result in imprisonment. However, maximum sentences are typically reserved for the most serious matters — especially where violence, intimidation, or repeat offending are involved.
Alternative sentencing options
Courts may also consider:
- Suspended sentences
- Community-based orders
- Good behaviour bonds
- Probation
- Monetary fines
These aim to balance punishment with rehabilitation and public safety.
Possible Legal Defences
While every case depends on its facts, common legal defences include:
Consent of the alleged victim
If the complainant freely consented to the situation, this may negate the charge.
Lawful authority
Some people are legally entitled to restrict another’s movement. For example, police, parents, or emergency responders acting within the law.
Mistake of fact
Under Section 24 of the Criminal Code, a person may not be criminally responsible if they acted under an honest and reasonable but mistaken belief about the facts.
Lack of intent
The prosecution must prove the accused acted knowingly and intentionally. A lack of intent can undermine the charge.
Mental health or incapacity
If a person’s mental condition meant they couldn’t understand or control their actions, this may provide a complete defence.
How Smith Cambridge Lawyers Can Help
Facing a deprivation of liberty charge can be overwhelming, and the consequences are serious. The right legal advice and representation can make a significant difference to the outcome of your case.
Our experienced criminal defence team provides clear, practical guidance and strong advocacy across Brisbane, the Gold Coast, and South East Queensland.
We can assist with:
- Criminal law matters, including deprivation of liberty, assault, and theft
- Traffic offences such as drink or drug driving
- Domestic violence applications and defences
- Bail applications and representation in court
We offer fixed-fee options on many matters and a compassionate, responsive approach from your first call through to resolution.
Contact us today to arrange a confidential consultation with one of our experienced criminal lawyers and understand your options.
Frequently Asked Questions
What does “continuous supervision” mean in deprivation of liberty cases? Continuous supervision refers to situations where a person’s movement or freedom is restricted for an extended period. While certain restrictions may be lawful in specific circumstances, issues can arise if the person’s freedom to leave or make decisions is limited without proper authority.
Can consent or legal authority be a defence? Yes. If the person accused acted under a lawful direction, such as with a valid Power of Attorney or in compliance with a care arrangement approved by law, this may form part of their defence. The key issue is whether the act fell within the lawful scope of that authority.
Why is it important to understand the legislative framework? Queensland’s legislative framework surrounding deprivation of liberty intersects with criminal, health, and human rights law. Understanding which law applies can make a difference to the outcome of a case, especially if the alleged deprivation occurred within a family, institutional, or professional context.
