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Make Threat to Kill.

Updated: Apr 26

We explain the elements, defences and penalties for the offence of Make Threat to Kill.


What the prosecution must prove


The offence of Make Threat to Kill is an indictable charge and is often accompanied with less serious charges such Threat to Inflict Serious Injury (Section 21 of the Crimes Act 1958 (Vic), Use Threatening Words (Section 17 of the Summary Offences Act 1966 (Vic)) and Use Carriage Service to Menace (Section 474.17(1) of the Criminal Code 1995 (Cth).


Often the offence is prosecuted in the context of family violence.


Under Section 20 of the Crimes Act 1958 (Vic), the offence of Make threat to kill has the following elements:


1. That the accused made a threat to another person

2. That the threat was to kill/seriously injure that person or some other person

3. That the threat was made without lawful excuse;

4. That the accused either:

a. Intended that the other person would fear that the threat would be carried out; or

b. Was reckless as to whether that person would so fear.


Making a threat


The threat need not be made to the actual victim (R v. Solanke [1970] 1 WLR 1)


A threat may be constituted by words or by conduct or by both. A series of statements taken together may constitute a threat to kill (R v Rich Vic CA 17/12/1997).


A threat to kill is a declaration of an intention of ending the life of the person or persons allegedly so threatened: R v Leece (1995) A Crim 531 A threat to shoot a person does not necessarily convey an intention to kill as opposed to an intention to cause serious bodily injury.


Intent


The accused must clearly intend to make the threat and he must intend to induce fear in the person threatened or be reckless as to whether he is inducing such fear. To establish whether an accused had the necessary intention when the threat was made all the circumstances of the statement and conduct are considered (R v Leece (1995) A Crim 531).


What is necessary is that the relevant utterance or communication conveys, objectively to the hypothetical reasonable person in the position of the listener or recipient that the message that the person making the utterance of communication proposes to kill the listener, the recipient, or some other person (R v Leece (1995) A Crim 531).


Recklessness


To establish an accused acted recklessly in making a threat to kill another, the prosecution must establish that the accused was aware that it was "probable" or "likely" the complainant would fear the threat would be carried out (R v. Campbell [1997] 2 VR)


The Penalties for Threat to Kill


The maximum penalty under section 20 of the Crimes Act 1958 (Vic) is 10 years imprisonment.


Defences to Threat to Kill


The defences available will depend upon the circumstances of the case, but frequently a defence may turn on:


- factual dispute as to whether the accused made the threat;

- whether the requisite intention or recklessness can be established


Sentencing Outcomes for Threat to Kill


The offence is usually heard and determined in the Magistrates' Court. As a guide the Sentencing Council of Australia published statistics for this offence during the period of 1 July 2016 - 30th June 2019:


Imprisonment - 41.5%

Community Correction Order - 28.8%

Fine - 13.1%

Adjourned undertaking/Dismissal/Discharge - 16.0%


Refer to our case studies, for a discussion about how the outcome achieved for a client charged with Make Threat to Kill.


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