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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Threats to Kill (WA)


Making a threat to kill is a serious offence and it is becoming more and more common for people to be charged with this offence in Western Australia. In the age of social media, it is increasingly common for threats to be made online. Such a threat may be made with no real intention of carrying it out. However, if the threat was made with the intent that the victim would be fearful and believe the threat, it amounts to a criminal offence that can attract a penalty of imprisonment.

The Offence Of Making A Threat To Kill

The offence of making a threat to kill is found in Section 338B(1) of the Criminal Code Act Compilation Act 1913. The offence of making a threat to kill attracts a maximum penalty of imprisonment for seven years. If the offence is committed in circumstances of aggravation, the Court can impose a maximum term of imprisonment for a period of 10 years. Where a threat to kill is racially motivated, the offender can be sentenced to up to 14 years imprisonment.

To find a person guilty of threatening to kill, the prosecution must prove beyond a reasonable doubt that:

  • A threat to kill was made;
  • That it was made to a person;
  • The threat was unlawful;
  • The intention was to make the victim fearful; and
  • The victim believed the threat that was made.

Actions which may amount to a threat to kill can include:

  • Leaving a threatening note in someone’s home;
  • Telling the threat to a third party;
  • Sending a threatening letter;
  • Sending a threatening text message; or
  • Writing the threat on a person’s Facebook page.

Express Or Implied

A person may be found guilty of a threat to kill whether the threat was made expressly or by implication. The test for whether something amounts to a threat to kill is an objective test.

Jurisdiction

Although this offence is usually dealt with in the District Court, it is also able to be dealt within the jurisdiction of the Magistrates Court (summarily). The legislation sets out that if the offence is dealt with summarily the maximum penalties which can be imposed are imprisonment for a period of up to 3 years and $36,000 fine.

It is unusual for the offence of making a threat to kill to be the sole offence with which a person is charged. A person charged with making a threat to kill will also often be charged with an assault and/or an act of criminal damage arising from the same set of facts.

Defences

If a person is charged with making a threat to kill, it would be prudent to discuss the circumstances surrounding the case with a lawyer to determine whether there are defences available. Defences that may be open to a person charged with making a threat to kill include that they were acting under duress, that it is a case of wrongful identification and that there was an absence of intention that the threat be taken seriously.

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

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