Understanding Deprivation of Liberty

Deprivation of liberty refers to circumstances in which an accused’s actions restrict or remove another person’s freedom of movement against their will. In criminal law, this concept frequently arises in aggravating contexts, such as when a victim is unlawfully detained, confined, or prevented from leaving during the commission of an offence.

The law does not define deprivation of liberty in a single statutory section but incorporates it within offences and aggravating circumstances under the Crimes Act 1900 (NSW) and judicial interpretation.

Elements of Deprivation of Liberty

To establish deprivation of liberty in a criminal context, courts generally examine whether the accused intentionally restricted the victim’s freedom of movement without lawful justification. Key elements include:

1. Control over the victim’s movement: The accused must have actively prevented the victim from leaving or moving freely.
2. Awareness of restriction: The accused must have known, or been reckless as to, the restriction of the victim’s freedom.
3. Duration and context: Even brief periods of unlawful restraint may be sufficient, but courts consider the total circumstances, including threats, force, or coercion.
4. Link to the offence: The deprivation of liberty must be connected to the commission of the primary offence, such as assault, robbery, or sexual offences.

Courts may also assess whether the deprivation was part of a pattern of coercive control, particularly in domestic or intimate partner contexts.

How Courts Use Deprivation of Liberty

As a Circumstance of Aggravation

In many offences, particularly serious property, violent, and sexual crimes, deprivation of liberty is treated as an aggravating feature . While it may not form part of the formal elements of the offence, courts consider it when assessing the degree of moral culpability and the appropriate penalty.

For example:

• The offence of robbery carries a maximum term of 14 years imprisonment. Depriving a victim’s liberty during the commission of a robbery aggravates the offending and increases the maximum term of imprisonment to 20 years.
• The offence of breaking and entering carries a maximum term of 10 years imprisonment. The same offence, when committed in circumstances of aggravation such as depriving a person’s liberty, carries a maximum term of imprisonment of 14 years.
• Where a victim is restrained during an assault, the combination of physical harm and loss of liberty may elevate the moral culpability of the accused.

Circumstances of aggravation help the courts evaluate the offending so that it can be determined where on the scale of objective seriousness it falls. . This approach is provided for in section 21A of the  Crimes (Sentencing Procedure) Act 1999 (NSW), which requires courts to consider factors increasing or decreasing the gravity of offending in sentencing decisions. Aggravating factors may include:

• Duration and intensity of restraint;
• Use of threats, intimidation, or weapons to maintain control;
• Victim vulnerability, such as age, disability, or intoxication; and
• Cumulative harm, where deprivation of liberty occurs alongside physical or sexual harm.

As a standalone common law offence (false imprisonment)

False imprisonment is a common law offence in New South Wales. False imprisonment is also a tort (trespass against a person), meaning that a victim can also launch civil proceedings against a person who has unlawfully deprived them of their liberty.

False imprisonment at common law is committed by the intentional, positive act of the accused which directly causes the total restraint of the victim and thereby confines them to a delimited area without lawful justification.

Where there is no intentional, positive act by the accused, false imprisonment cannot be made out. An omission is not a positive act and therefore cannot be an intentional trespass  against a person.

There can also be no false imprisonment where there is a reasonable means of escape. For example in the case of The Balmain New Ferry Co v Robertson (1996), the court held that the applicant was not liable for damages for false imprisonment. The respondent had purchased a ferry ticket and after going through the turnstiles, changed his mind and wished to exit the wharf by going back through the turnstile. He was prevented by the ferry company employees who told him he would need to pay again to exit via the turnstiles or could board the ferry. The court held there was no false imprisonment because Mr. Robertson had reasonable means of escape by boarding the ferry.

However, if a person is held in a moving vehicle and their only means of escape is by jumping out of the vehicle, they are considered to be falsely imprisoned.

Importantly, for a person to be falsely imprisoned they must be unlawfuly confined to a delimited area. However, they need not be restrained by physical force or a physical barrier. The threat of force is sufficient for false imprisonment to be made out as it creates in the mind of the victim the belief that they cannot reasonably escape an area without harm coming to them or others.

The accused is not required to have intended to falsely imprison the victim prior to the act. For example, the police force or government bodies can imprison a person based on a belief that they have the jurisdiction to do so. If that belief is wrong, that negates the lawful justification of the imprisonment and the victim can pursue a civil claim for false imprisonment. For example, officers of the Department of Immigration have a duty to detain a person if they believe the person doesn’t hold a valid visa. If the person is placed  in immigration detention and it later transpires that they do hold a valid visa, their imprisonment is not lawful.

Difference Between Lawful and Unlawful Deprivation

Not every restriction on movement constitutes a criminal deprivation of liberty. It is critical to distinguish between criminally relevant deprivation of liberty and lawful constraints. Situations that generally do not amount to unlawful deprivation include:

• Lawful arrest by police, conducted in accordance with statutory powers under Law Enforcement (Powers and Responsibilities) Act 2002 (NSW);
• Court‑ordered detention or imprisonment following conviction;
• Judicially supervised custody, including remand or bail conditions; and
• Child protection orders, where children are placed in statutory care under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

These restrictions are authorised by law and do not give rise to criminal liability. The defining feature of criminal deprivation of liberty is that the victim’s freedom is restricted without legal justification through deliberate or reckless conduct by the accused.

Evidentiary Considerations

Deprivation of liberty can be challenging to prove, as physical restraint may be brief or subtle. Key sources of evidence include:

• Witness testimony describing confinement, threats, or coercion;
• Physical or forensic evidence, such as barriers, locks, or bindings;
• Digital evidence, including communications demonstrating restriction of movement;
• Expert evidence regarding psychological impact or trauma.

Even temporary restraint can be sufficient to demonstrate serious harm, especially when combined with assault, sexual offences, or coercive conduct.

 

Defences

Potential defences to deprivation of liberty include:

• Lack of intent or accidental contact: Where the restriction of movement was unintentional or incidental;
• Self-defence or defence of another: Where the accused reasonably believed force was necessary to protect themselves or another, under section 418 of the Crimes Act 1900 (NSW);
• Automatism: Where the accused’s actions were not done in consciousness of the nature of the act and in exercise of a choice to do an act of that nature.

The evidentiary burden rests on the accused to raise a defence, after which the prosecution must disprove it beyond reasonable doubt.

There are also several circumstances which are lawful excuses to the deprivation of a person’s liberty. These include:

• Consent: if a person has consented to being confined, they are not considered to be falsely imprisoned. The consent must have been given without coercion, fraud or duress.
• Defence of lawful correction: it is lawful for a parent to detain their child if the act is reasonable having regard to the age, health, maturity or other characteristics of the child and the nature of the alleged misbehaviour.
• Police privilege: in certain circumstances, police can detain a person without a warrant if they believe that person has committed a serious offence in public view.
• Citizen’s arrest: members of the public may detain a person if a serious crime has been committed until police are contacted.

“Deprivation of liberty is a complex area of law that can have significant consequences for individuals under care or supervision. It is essential to understand the legal thresholds and safeguards in place to ensure any restriction on a person’s freedom is lawful, proportionate, and in their best interests. For guidance tailored to your specific circumstances, consulting a qualified solicitor is strongly recommended.”