Deprivation of Liberty
Lawyer Cairns
Deprivation of liberty is a criminal charge that arises when a person is alleged to have unlawfully confined or detained another person without their consent. It is charged under section 355 of the Criminal Code Act 1899 (Qld) and carries a maximum penalty of 3 years' imprisonment. These charges frequently arise in the context of domestic violence incidents, relationship breakdowns, and disputes where one person is alleged to have prevented another from leaving a premises. The charge is often accompanied by assault, threats, or domestic violence charges. Despite the relatively short maximum penalty, deprivation of liberty is a serious allegation — and the facts surrounding the charge are often more complex and more contested than the prosecution's version suggests.
The Offences — Criminal Code (Qld)
Queensland law distinguishes between two related offences: Deprivation of liberty — Section 355 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 Maximum penalty: 3 years' imprisonment Classification: misdemeanour Dealt with in the Magistrates Court (summarily) unless committed to the District Court Kidnapping — Section 354 Any person who unlawfully kidnaps or abducts another person Maximum penalty: 7 years' imprisonment Classification: crime — strictly indictable, dealt with in the District Court The distinction between deprivation of liberty and kidnapping relates to the nature and degree of the confinement. Kidnapping involves taking and carrying away — moving the person from one place to another. Deprivation of liberty involves confining or detaining — keeping the person in a place. In practice, the prosecution charges kidnapping where the complainant was moved (taken in a car, forced to walk to another location) and deprivation of liberty where the complainant was kept in one place (locked in a room, prevented from leaving a house).
Common Scenarios in Cairns
Domestic violence context The most common scenario. During a domestic argument, one person is alleged to have prevented the other from leaving the house — standing in front of the door, taking their car keys, hiding their phone, or physically restraining them. These allegations frequently accompany domestic violence charges, assault charges, and applications for domestic violence orders . The factual disputes in DV-related deprivation of liberty matters are often significant. What the prosecution alleges was confinement, the accused describes as an argument where both parties were emotional and neither was truly preventing the other from leaving. The context, the duration, and the specific conduct all matter. Relationship breakdown and custody disputes Deprivation of liberty charges sometimes arise where a parent refuses to return a child to the other parent, or where a separated partner prevents the other from leaving a shared residence. These situations often involve complex family dynamics and competing accounts of what happened. Commercial and employment disputes Less common, but charges occasionally arise from workplace or commercial situations — a person detained in an office, a customer prevented from leaving a premises, or a dispute where physical restraint was used. Drug and violence-related confinement In more serious cases, deprivation of liberty or kidnapping is charged alongside drug trafficking, robbery, or serious assault charges — where the confinement was part of a broader course of criminal conduct. These matters sit at the most serious end of the sentencing range.
Defences and Charge Negotiations
Consent The prosecution must prove the confinement was against the other person's will . If the complainant was not actually confined — if they were free to leave and chose not to — the charge fails. This is a genuine issue in many DV-related matters where the complainant's account of confinement may not be supported by the surrounding circumstances (neighbours who saw nothing, no calls for help, no attempt to leave when opportunities existed). No actual confinement The prosecution must prove that the accused's conduct amounted to confinement or detention. An argument, even a heated one, is not confinement. Standing near a door is not the same as blocking it. The legal question is whether the complainant was actually deprived of their liberty — whether a reasonable person in the complainant's position would have felt they could not leave. Duration and degree A momentary restriction — grabbing someone's arm during an argument — may not meet the threshold for deprivation of liberty. The charge contemplates a meaningful deprivation of personal liberty, not a fleeting physical interaction. The duration and degree of the confinement are relevant to both liability and sentencing. Charge reduction Where the conduct does not support deprivation of liberty at law — where it amounts to common assault rather than confinement — representations to the prosecution for a charge reduction may be appropriate. A reduction from deprivation of liberty to assault significantly changes the sentencing context, particularly where the deprivation of liberty charge carries a domestic violence aggravation. Lawful authority In some circumstances, a person may have lawful authority to detain another — security personnel detaining a shoplifter, a parent restricting a child's movement. Where the detention was lawful, it is not an offence.
Deprivation of Liberty and Domestic Violence
Deprivation of liberty in a domestic violence context carries additional consequences beyond the criminal penalty: Domestic violence aggravation. Where the offence is committed against a person in a domestic relationship, the charge is a domestic violence offence under the Domestic and Family Violence Protection Act 2012 . A domestic violence notation is recorded alongside the conviction. DVO implications. A deprivation of liberty charge in a DV context almost always results in a domestic violence order being made or varied — imposing conditions on the respondent that restrict contact with the aggrieved. Breaching those conditions is a separate criminal offence. Show cause bail. Where the deprivation of liberty charge involves a domestic violence allegation and the accused is already subject to a DVO, the combination may trigger show cause bail provisions. Bail conditions in DV matters are typically strict — no contact, residential exclusion, and reporting conditions are standard. Family law implications. A conviction for deprivation of liberty in a DV context has direct implications in Family Court proceedings — particularly regarding parenting orders. The Family Court is required to consider family violence as a primary consideration. If you are facing a deprivation of liberty charge in a DV context, the criminal charge, the DVO, and any family law proceedings all need to be considered together. A concession or admission in one proceeding affects the others.
What Changes the Sentencing Outcome
The duration of the confinement. A brief, impulsive confinement during an argument is treated differently from a sustained detention lasting hours. The longer the confinement, the more serious the sentencing treatment. The degree of force or fear. Confinement involving threats, weapons, or physical violence sits at the serious end. Confinement involving a blocked doorway during an argument sits at the lower end. The domestic violence context. DV-related deprivation of liberty attracts the domestic violence aggravation and typically results in stricter sentencing — the court treats offences committed against vulnerable persons in domestic relationships with additional seriousness. Whether other offences were committed. Deprivation of liberty charged alongside assault, threats, or property damage is sentenced in context — the overall course of conduct determines the sentence for each charge. Your criminal history. A first offence with no history of violence is treated differently from a matter where the accused has prior violence or DV convictions. Steps since the charge. Counselling (particularly DV or anger management programmes), employment, rehabilitation, and compliance with bail conditions all demonstrate reform and reduce the sentence. Early plea. An early guilty plea attracts a sentencing discount. Where the facts are not contested, an early plea combined with strong mitigating material can achieve a non-custodial outcome in many cases.
Related Charges
Deprivation of liberty is frequently charged alongside: Assault — common assault, assault occasioning bodily harm, or serious assault. The violence used to confine the person is often charged as a separate assault. Domestic violence offences — contravention of a DVO, strangulation, choking. DV-related deprivation of liberty almost always involves additional DV charges. Strangulation/choking — particularly in DV-related confinement matters. Strangulation carries up to 7 years and triggers show cause bail. Robbery — where the confinement was part of a robbery, the charges are laid together. The robbery charge is typically the lead offence. Threatening violence — threats made during the confinement may be charged as separate offences under s 75 of the Criminal Code .
Frequently Asked Questions
What is deprivation of liberty in Queensland?
Deprivation of liberty under s 355 of the Criminal Code Act 1899 (Qld) is the offence of unlawfully confining or detaining another person in any place against their will, or otherwise depriving them of their personal liberty. It carries a maximum penalty of 3 years' imprisonment.
What is the difference between deprivation of liberty and kidnapping?
Deprivation of liberty (s 355) involves confining or detaining a person in a place. Kidnapping (s 354) involves taking and carrying away — physically moving the person from one location to another. Kidnapping is more serious (7 years max) and is dealt with in the District Court.
Is deprivation of liberty a domestic violence offence?
It can be. Where the offence is committed against a person in a domestic relationship, it is classified as a domestic violence offence under the Domestic and Family Violence Protection Act 2012 . This adds a DV notation to any conviction and has implications for DVO conditions and family law proceedings.
Can I be charged with deprivation of liberty for blocking a door during an argument?
Potentially, yes — but whether the conduct meets the legal threshold is a question of fact and degree. The prosecution must prove you actually confined or detained the other person against their will. A momentary obstruction during a heated argument may not meet that threshold. The specific facts — the duration, whether the other person attempted to leave, whether force was used — all matter.
Will I go to jail for deprivation of liberty?
For a first offence, particularly a brief confinement in a domestic context without weapons or serious violence, imprisonment is not the usual outcome. Probation, community service, or a good behaviour bond are realistic for lower-level matters with strong mitigating material. For serious or sustained confinement, or where there are prior convictions, imprisonment is a real prospect. The maximum is 3 years for s 355 and 7 years for s 354 kidnapping.