Threat To Kill

In Victoria, the maximum penalty for the offence of Threat To Kill is 10 years’ imprisonment.

What is the Threat To Kill?

The offence of making threats to kill is contained in s 20 of the Crimes Act 1958, which states: “A person who, without lawful excuse, makes to another person a Threat To Kill that other person or any other person –

• intending that that other person would fear the threat would be carried out; or
• being reckless as to whether or not that other person would fear the threat would be carried out –

is guilty of an indictable offence”.

What Actions Might Constitute a Threat To Kill?

• Telling another person over the phone that you intend to kill their mother;
• Sending a text message to a girlfriend stating that you will “kill her”; or,
• Writing on the internet that you intend to kill another person.

What Must Be Proven?

To convict you of Threatening To Kill, the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you made a threat to another person;
• That the threat was to kill that person or some other person;
• That the threat was made without lawful excuse; and,
• That you either:
  • intended that the other person would fear that the threat would be carried out; or,
  • were reckless as to whether that person would fear.

Intentionally or Recklessly?

Intention

To prove intention, all of the circumstances of the threatening statement or conduct must be considered. You do not need to have intended to carry out the threat. Rather, the relevant issue is whether you intended the complainant to believe that the threat would be carried out. The motive for making the threat is irrelevant.

Recklessness

For the threat to have been made recklessly, you must have been aware, when you made the threat, that it was ‘probable’ or ‘likely’ that the complainant would fear that it would be carried out. It is not sufficient if you were only aware that this fear was merely ‘possible’ or ‘might’ result from your actions. It is also not sufficient that a reasonable person in your circumstances would have realised that the complainant would probably fear the threat.

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

So long as the accused consents, the charge will generally be heard in the Magistrates’ Court of Victoria. If there are other more serious charges or if the accused does not consent to the Magistrates’ Court hearing the matter, the matter can be committed to the County Court of Victoria.

Possible Defences

The following defences may be available for a threat to inflict serious injury charge:

• Lack of defence / factual dispute
• Self defence / defence of another 

Common Questions

Will I receive a criminal conviction?

Yes, you can receive a conviction and criminal record for this offence, however, the circumstances of the offending, whether you have a criminal record, your personal background, and other mitigating factors will influence this. 

In VIC, a Court can impose any of the following penalties for this charge.

• Jail
• Community Corrections Orders (CCO)
• Fine
• Adjourned undertaking

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction might jeopardise your job or make it difficult to obtain visas for overseas travel. 

Will I go to jail?

Yes, you can be sentenced to a term of imprisonment for this charge, as it is a serious violent offence in Victoria and carries a maximum penalty of 10 years imprisonment. Imprisonment, however, is not the only outcome available to a Court and penalties will range from good behaviour bonds to fines, to community corrections order, with prison being a sentence of last resort. The circumstances of the offending, whether you have a criminal record, your personal background, and other mitigating factors will influence the outcome. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.