Threats to Kill

- Section 20 of the Crimes Act 1958

Threat to KillThreatening 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.

Questions in cases like this
  • Did you threaten to kill someone?
  • Did you intend, or were you reckless, as to whether the other person would fear the threat would be carried out?
What is the legal definition of Threats to Kill?

A person who, without lawful excuse, makes to another person a threat to kill that other person or any other person—

  1. intending that that other person would fear the threat would be carried out; or
  2. being reckless as to whether or not that other person would fear the threat would be carried out—
  3. is guilty of an indictable offence.

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—

  1. intending that that other person would fear the threat would be carried out; or
  2. 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.
 
Call Doogue and George

Threat to Kill: The elements

The offence of threat to kill has three elements that the prosecution must prove beyond reasonable doubt:

  1. The accused made a threat to the complainant to kill either the complainant or another person;
  2. 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
  3. The threat was made without a lawful excuse.

 
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:

  1. Intended that the complainant fear the threat would be carried out; or
  2. Been reckless as to whether the complainant would fear the threat would be carried out.

IntentionIntention
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

"Did you intend for someone to fear your threat would be carried out?"

Recklessness
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).

Higher Court

Sentencing in the higher courts

There were 31 cases (330 charges) of Threats to Kill that were heard in the higher courts of Victoria from 1 July 2011 to 30 June 2016. Majority of these cases resulted in Imprisonment (61.3%). Others led to penalties such as Community Correction Order (22.6%), Wholly Suspended Sentence (6.4%), Community-Based Order (6.4%), and Partially Suspended Sentence (3.2%).

Of the prison terms imposed, the longest was between 4 and 5 years and was applied in 15.8% of the cases that resulted in imprisonment. Majority was sentenced to a term that was less than a year (47.4%).

Of the charges that led to Community Correction Orders, majority were sentenced to a term between 2 and 3 years (38.6%). The highest term imposed was between 4 and 5 years (15.9%).13

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. Community-based orders were also abolished in Victoria in 16 January 2012, effective immediately for all offences committed before, on, or after this date.14

Sentencing in the Magistrates’ Courts

From 1 July 2013 to 30 June 2016, there were 3,633 cases (4,710) of Threats to Kill that were heard in the Magistrates' Courts. Most of these cases resulted in Community Correction Order (34.3%) and Imprisonment (32.7%). Other penalties imposed were:

  • Fine - 14.1%
  • Adjourned Undertaking/Discharge/Dismissal - 12.7%
  • Wholly Suspended Sentence - 3.8%
  • Partially Suspended Sentence - 2.0%
  • Youth Justice Centre Order - 0.4%
  • Other - 0.1%

Of the charges that led to Community Correction Order, majority fell under the "12 < 18 months" category (49.9%, non-aggregate). The highest term imposed was 24+ months and was applied in 8.2% of the charges (non-aggregate). Of the prison terms imposed, the longest was 36+ months but this was the least imposed (1.0% of the cases that led to imprisonment). Majority were sentenced to a term that was between 3 and 6 months.15

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.16

Other important resources
Case studies from our firm involving Threats to Kill

 



[1] R v Solanke [1970] 1 WLR 1; R v Syme (1911) 6 Cr App R 257
[2] R v Leece(1995) 125 ACTR 1
[3] Barbaro v Quilty [1999] ACTSC 119
[4] R v Rich Vic CA 17/12/1997; R v Jones (1851) 5 Cox CC 226
[5] Barbaro v Quilty [1999] ACTSC 119
[6] R v Alexander [2007] VSCA 178; Barbaro v Quilty [1999] ACTSC 119
[7] R v Solanke [1970] 1 WLR 1
[8] R v Leece (1995) 125 ACTR 1; R v Alexander [2007] VSCA 178
[9] R v Crabbe (1985) 165 CLR 464; R v Sofa Vic CA 15/10/1990
[10] R v Crabbe (1985) 156 CLR 464; R v Campbell [1997] 2 VR 585; R v Nuri [1990] VR 641
[11] R v Sofa Vic CA 15/10/1990; c.f. R v Nuri [1990] VR 641
[12] Zecevic v DPP (Vic) (1987) 162 CLR 645
[13] Sentencing Advisory Council. "SACStat Higher Courts - Crimes Act 1958 (Vic): s 20 - make threat to kill." SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_6231_20.html (accessed February 20, 2019).
[14] Sentencing Advisory Council. "Abolished Sentencing Orders." SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed February 20, 2019).
[15] Sentencing Advisory Council. "SAC Statistics - Crimes Act 1958 (Vic): s 20 - make threat to kill." SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/6231_20.html (accessed February 20, 2019).
[16] Sentencing Advisory Council. "Abolished Sentencing Orders." SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed February 20, 2019).