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Threats to Inflict Serious Injury

– section 21 of Crimes Act 1958
Threats to Inflict Serious InjuryThe charge of Threats to Inflict Serious Injury is generally laid in situations where people become angry about something, lose their temper and then threaten to inflict serious injury to someone else. It is very important to get advice from a defence lawyer if you are charged with this offence as it is a serious offence, and carries a maximum penalty of five years imprisonment.
Examples of Threats to Inflict Serious Injury
  • You have been in a family feud with your relatives for many years. During Christmas lunch, you begin to argue, and your brother threatens to hurt you. You respond by threatening to cut him with a kitchen knife.
  • You’re having a heated argument with your partner. You find out that they’ve cheated on you, and you threaten to break their legs.
Questions in cases like this
  • Did you actually threaten serious injury or did you threaten something else? E.g. Threatening to ruin someone’s life by telling their secret would not be covered under this offence.
  • Did the victim actually receive the threat? If you just wrote it down in your draft emails and never sent it, this wouldn’t be covered.
  • Was the threat an obvious joke between old friends or family? The court must look at the circumstances of your relationship with the victim when judging the seriousness of the threat.
What are some of the possible defences to Threats to Inflict Serious Injury?

Defences to this charge are normally factual as to what words were exactly said. There are also defences around what intent the words were said with and in what circumstances were they said. Mental impairment and intoxication are also possible defences depending on the circumstances of the alleged offending.

It must be noted that it can be hard to defend this charge if an admission is made that the threatening words were indeed said. This is because it is hard to contradict a person who says “yes I believed it” or to get past the supposition that someone would feel threatened.

Self defence is another possible defence in this area. A person acts in self defence when they believe, on reasonable grounds, that their actions are necessary.1 A person may reasonably make a threat to inflict serious injury in self defence in circumstances where it would not be reasonable to carry out the threat.2

Maximum penalty and court that deals with this charge

This offence has a maximum penalty of level 6 imprisonment (5 years). This is the sort of charge regularly heard in the Magistrates’ Court.

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Legislation

The offence of Threats to Inflict Serious Injury arises under section 21 of the Crimes Act 1958.

Elements of the offence

The offence has the following three elements that the prosecution must prove beyond reasonable doubt:

  1. The accused made a threat to the victim to inflict serious injury upon either the victim or another person;
    This is quite a broad element, as many different circumstances can constitute a making a threat. A threat can be made by words or conduct,3 or could be made in writing.4 The prosecution don’t have to identify precise words or conduct, and the court can find that a course of conduct constitutes a threat.5 It’s also not necessary that the victim actually feared the threat would be carried out.6

    “Serious injury” is also quite broad. Under section 15 of the Crimes Act 1958, serious injury means an injury (including the cumulative effect of more than one injury) that ‘endangers life’, or is ‘substantial and protracted’. It includes the destruction of a foetus of woman, except in the course of a medical procedure, whether or not the woman suffers any other harm.

    In order for this element to be made out, the victim must have received the threat, although they need not be the person threatened.7 It is also not necessary that the accused and the victim have any particular relationship for the offence to be made out.8

    The threat may be for the accused person to inflict serious injury, or for another person to inflict serious injury.9 The threat can also be conditional on a future event – it doesn’t matter if the accused isn’t capable of carrying out the threat immediately.10

  2. The accused either intended the victim to fear that the threat would be carried out; or was reckless as to whether or not the victim would fear that the threat would be carried out;

    The accused must have intended for the victim to fear that the threat would be carried out, or have been reckless as to whether or not that other person would fear that the threat would be carried out.

    It is not necessary for the accused to have intended to carry out the threat. The only issue is whether the accused intended the victim to believe that the threat would be carried out.11 For instance, intention would be made out in circumstances where you threaten to cut off someone’s arm, but don’t actually intend to hurt them (you just intend for them to fear harm).

    To have been reckless as to whether or not the victim would fear that the threat would be carried out, the accused must have been aware, when they made the threat, that it was probable that the victim would fear that it would be carried out.12 It is not enough if the accused merely thought it was ‘possible’ that the victim would have been in fear.

  3. The threat was made without lawful excuse.
    The threat to inflict serious injury must have been made without any lawful justification or excuse.13

Higher Court

Sentencing in the higher courts

There were 19 cases of Threats to Inflict Serious Injury that were heard in the Victorian higher courts from 1 July 2011 to 30 June 2016. These involved a total of 113 charges, most of which resulted in a prison term.

Of the 113 charges, 62.8% received a prison term, 20.4% a Community Correction Order, 5.3% a partially suspended sentence, 3.5% a wholly suspended sentence, 2.6% a fine, 2.6% a Youth Justice Centre order, 1.8% a Community Based Order, and 0.9% an adjourned undertaking/discharge/dismissal.

The longest prison term imposed was 3 < 4 years and was given to 1.4% of the 71 charges that resulted in imprisonment. This was however the least imposed period as the majority of those who received a prison term were sentenced to 0 < 1 year (45.1%).14

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.15

Sentencing in the Magistrates’ Courts

From 2013 to 2016, there were 2,242 cases of Threats to Inflict Serious Injury that were heard at the Magistrates’ Courts of Victoria. Majority of these cases received a Community Correction Order (32.2%) followed by Imprisonment (30.0%) and Fine (15.8%). Other sentences imposed were: Adjourned Undertaking / Discharge / Dismissal (12.7%), Wholly Suspended Sentence (6.2%), Partially Suspended Sentence (2.1%), Youth Justice Center Order (0.8%), and Other forms of sentencing (0.2%).

Of the prison terms imposed, the longest was “36+ months” although this was given to only 1.0% of those who were sentenced to imprisonment. The most common period of imprisonment imposed was “< 3 months” (33.4%).16

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.17

Other Important Resources
Case studies related to the charge of Threats to Inflict Serious Injury:

While threats may not result in any physical violence, they can still be treated very seriously by the courts, especially in circumstances of ongoing family violence. If you are charged with this offence you should seek advice from a defence lawyer straight away.

 



[1] Zecevic v DPP (Vic) (1987) 162 CLR 645
[2] R v Cousins [1982] 1 QB 526
[3] R v Rich Vic CA 17/12/1997
[4] R v Jones (1851) 5 Cox CC 226
[5] R v Rich CA Vic 17/12/1997
[6] R v Rich Vic CA 17/12/1997; R v Alexander [2007] VSCA 178
[7] Crimes Act 1958 s21
[8] R v Solanke [1970] 1 WLR 1; R v Syme (1911) 6 Cr App R 257.
[9] Barbaro v Quilty [1999] ACTSC 119
[10] R v Leece (1995) 125 ACTR 1; Barbaro v Quilty [1999] ACTSC 119
[11] R v Alexander [2007] VSCA 178; Barbaro v Quilty [1999] ACTSC 119
[12] R v Crabbe (1985) 165 CLR 464; R v Sofa Vic CA 15/10/1990
[14] Crimes Act 1958 s21
[15] SACStat Higher Courts – Crimes Act 1958 (Vic) : s 21 – make threat to inflict serious injury < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_6231_21.html >
[16] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >
[17] SAC Statistics – Crimes Act 1958 (Vic) : s 21 – make threat to inflict serious injury < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_21.html >
[18] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >