Downgrading Threat to Kill and Criminal Damage

by · Updated September 20, 2019

Man With Close FistThis is a case study on downgrading Threat to Kill and Criminal Damage charges.

Our client was charged with several offences arising from his refusal to leave licensed premises when asked to do so. This was followed by a fight with a security guard. As a result, the police charged him with:

  • Criminal Damage
  • Make Threat to Kill
  • Unlawful Assault
  • Refusing to Leave Licensed Premises

The charges of Criminal Damage and Make Threat to Kill are serious offences as they fall into the category of indictable offences. Each of these offences prescribes a maximum of 10 years imprisonment, although that maximum penalty is not available in the Magistrates’ Court jurisdiction.

It must be noted that our client was aged 25 at the time of the offending. He had a relevant prior for a similar offending but he was employed on a full-time basis and had remained so employed as at the date of sentencing.

A contentious fact was the catalyst for the fight with the security guard. The prosecution contended that our client spat in the face of the guard. We contended that he did not and that the CCTV footage depicted what appeared to be a kick by the security guard as the client was leaving the premises.

The matter was the subject of extensive negotiations at the case conference stage, where the allegations of threats to kill were denied on the basis that the requisite intention to carry out any threat alleged to have been made by our client could not be established, or inferred on the available evidence.

Shaun Pascoe acted on the client’s behalf at the Heidelberg Magistrates’ Court. For this case, downgrading the Threat to Kill and Criminal Damage charges eventually led to an excellent outcome.

But first, the focus of the representation provided to the client concerned mitigation. We did not have a viable defence to any of the charges save the Threat to Kill, and that defence concerned not so much disputed facts but whether the words uttered by our client were sufficient to establish the requisite intention having regard to all the material circumstances.

During early conferences with the client, he was encouraged to attend counselling to address the underlying contributing factors. In this case, the intersection of alcohol and anger management. The client began receiving counselling and a short report evidencing the client’s attendance for treatment became available.

The matter proceeded from case conference to the contest mention stage of the criminal process as a number of disputed facts were identified. At the contest mention, discussions with the prosecution resulted in the indictable charges of Make Threat to Kill and Criminal Damage being downgraded to the summary offences (less serious) of Use Threatening Words and Wilful Damage. By way of comparison to original indictable charges the client faced, the maximum penalty for each of these offences were 2 months (Use Threatening Words) and 6 months (Wilful Damage).

When the case was called on before the presiding magistrate, a sentence indication was requested in the attempt to resolve the disputed facts. Submissions were made which concerned matters personal to the client, and highlighted aspects of his good character as well as emphasised the constructive rehabilitative steps the client had taken since the offence.

After considering the submissions, the magistrate indicated that he was prepared to impose a fine. This indication was accepted by the client. He was subsequently convicted and fined an aggregate amount of $1,200. This was a particularly pleasing outcome. Successfully downgrading the Threat to Kill and Criminal Damage charges allowed for a great result that enabled our client to continue his employment unimpeded by a court-ordered counselling or unpaid community work.
 

Elements of Threat To Kill:

  • The accused made a threat to the complainant to kill either the complainant or another person;
  • The accused either:
    1. Intended the complainant to fear that the threat would be carried out; or
    2. Was reckless as to whether or not the complainant would fear that the threat would be carried out; and
  • The threat was made without a lawful excuse.

 
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Shaun PascoeShaun Pascoe

Shaun is an Accredited Criminal Law Specialist and a partner of the firm. Shaun runs the Heidelberg branch of Doogue + George.

He is an experienced criminal law solicitor and works hard to achieve the best possible outcomes for his clients. Shaun handles indictable and summary criminal offences and is an expert at criminal defence for both contested and non-contested cases.

Visit Shaun's profile to read more about his background and experience.
 

DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 20/09/2019