– Section 20 of the Crimes Act 1958
Threatening to kill is a charge regularly heard in Victorian Magistrates’ Courts.
This charge is generally laid in situations wherein people get overheated about a certain issue and a person starts yelling out threats at another person. This charge is rarely made alone in Court as it normally arises out of a situation where other criminal offences are also alleged.
Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.
Threat to kill: The legislation
This offence is governed by section 20 of the Crimes Act 1958 (Vic) which reads as follows:
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.
The maximum penalty that may be imposed for a charge of threat to kill is 10 years imprisonment.
Threat to kill: The elements
The offence of threat to kill has three elements that the prosecution must prove beyond reasonable doubt:
- The accused made a threat to the complainant to kill either the complainant or another person;
- The accused either:
- Intended the complainant to fear that the threat would be carried out; or
- Was reckless as to whether or not the complainant would fear that the threat would be carried out; and
Element 1: The accused made a threat to the complainant to kill either the complainant or another person
The accused must have made a threat to kill to another person (the complainant). While the complainant received the threat, they need not be the person threatened. The accused may have threatened to kill a third party.
The accused need not have any particular relationship with the person threatened.1
The threat must be to kill, not to inflict some lesser harm such as a serious injury.2
The person making the threat may threaten to have someone else carry out the killing.3
The threat to kill can be made by words or conduct, or both. A threat to kill can also be made in writing.4
In making its determination, the jury must consider the relationship between the accused and the complainant. Violent or colourful language that may appear threatening at first sight, may in fact not be a “threat” when the relationship is taken into account.5
Element 2: The accused’s state of mind
The second element of the offence requires the accused to have either:
- Intended that the complainant fear the threat would be carried out; or
- Been reckless as to whether the complainant would fear the threat would be carried out.
It is not necessary for the accused to have intended to carry out the threat. The accused need only intend that the complainant would fear they would carry out the threat.6
The accused’s motive for making the threat is irrelevant when considering intention.7
All the circumstances of the statement or conduct must be considered when establishing intention.8
To have been reckless as to whether the complainant would fear that the threat to kill would be carried out, the accused must have been aware when they made the threat that it was probable that the complainant would fear that the threat would be carried out.9
The accused being aware of a ‘possibility’ or ‘likelihood’ that the complainant would fear that the threat would be carried out is insufficient to establish recklessness.10
The accused themselves must have been aware that it was probable that the complaint would fear the threat to kill would be carried out for recklessness to be established. It is insufficient that a reasonable person in the accused’s circumstances would have realised that the complainant would probably fear the threat.11
Element 3: The threat is made without lawful excuse
For the offence to be made out, the accused must have made the threat without any lawful justification. Self-defence and prevention of crime are common forms of justification. A person acts in self-defence when they believe, on reasonable grounds, that their actions are necessary.12
Threat to kill: examples
After a road rage incident between to drivers, the driver of one of the cars gets out of their car, approaches another vehicle’s driver’s side door and yells directly at the other driver ‘I’m going to kill you and your family’ before forcefully kicking and striking their car.
A person who has been cheated on sends their partner’s lover number of text messages threatening to kill them. The messages include stating the lover’s address, stating how the person plans to kill them and when the person plans on doing so.
Threat to kill: defences
Some possible defences to the charge of threat to kill are the following:
- No threat has been made.
- A threat has been made, however it was of a lesser harm such as a threat to inflict injury.
- The person who has been accused of making the threat was not the one who made it (wrongful identification). For example, someone may use another person’s Facebook account to make a threat to kill, making it appear that the owner of the account made the threat when this was in fact not the case.
- The person who made the threat was forced to make it by another person (duress).
- The person who made the threat lacked the necessary state of mind (i.e. intent or recklessness that the complainant would fear that the threat would be carried out).
Threat to kill: sentencing trends
The Sentencing Advisory Council (SAC) has released sentencing statistics for threat to kill matters in the higher courts between the years 2005-2010.
Over the five-year period, around one third of the people sentenced for making a threat to kill received a period of imprisonment (37% or 22 of 60 people), while 27% received a wholly suspended sentence of imprisonment, 10% received a community-based order and 8% received a partially suspended sentence of imprisonment.
Changes to the law in mid-2013 mean that neither the Supreme Court nor the County Court may suspend a sentence of imprisonment for any offence committed on or after 1 September 2013. The Magistrates’ Court cannot suspend a sentence of imprisonment for any offence committed on or after 1 September 2014.
The lengths of total effective sentences in SAC’s analysis ranged from 1 month to 6 years, while the median total effective length of imprisonment was 2 years (meaning that half of the total effective sentence lengths analysed were below 2 years and half were above).
The sentence a person receives depends on their background, prior criminal history and the circumstances surrounding the offending.
Case studies from our firm involving Threats to Kill
- Assault Charges, Damage to Property, and Without Authority Enter Private Place
- Without Conviction Outcome for Family Violence
- Robbery and Drug Trafficking – Non-Conviction Fine
- Theft and Making a Threat to Kill
- Family Violence – Accused With Mental Health Issues
 R v Solanke  1 WLR 1; R v Syme (1911) 6 Cr App R 257
 R v Leece(1995) 125 ACTR 1
 Barbaro v Quilty  ACTSC 119
 R v Rich Vic CA 17/12/1997; R v Jones (1851) 5 Cox CC 226
 Barbaro v Quilty  ACTSC 119
 R v Alexander  VSCA 178; Barbaro v Quilty  ACTSC 119
 R v Solanke  1 WLR 1
 R v Leece (1995) 125 ACTR 1; R v Alexander  VSCA 178
 R v Crabbe (1985) 165 CLR 464; R v Sofa Vic CA 15/10/1990
 R v Crabbe (1985) 156 CLR 464; R v Campbell  2 VR 585; R v Nuri  VR 641
 R v Sofa Vic CA 15/10/1990; c.f. R v Nuri  VR 641
 Zecevic v DPP (Vic) (1987) 162 CLR 645