Making a threat to kill is a serious indictable offence in Victoria, carrying a maximum of 10 years’ imprisonment, and is frequently charged in the context of arguments, relationship breakdowns and family violence. It is an offence under section 20 of the Crimes Act 1958. McMahon Criminal Defence Lawyers defends these charges at the Ballarat Magistrates’ Court and across Victoria on fixed fees.
What is a Threat to Kill?
Under section 20 of the Crimes Act 1958, a person commits this offence if they make a threat to kill another person, intending that person to fear the threat would be carried out, or being reckless as to whether they would fear it would be carried out. The threat can be made in words or by conduct, and need not be communicated directly to the person threatened. A closely related offence, threat to inflict serious injury (section 21), carries a maximum of 5 years.
What the Prosecution Must Prove
- the accused made a threat to kill another person;
- the accused intended that person to believe the threat would be carried out, or was reckless as to whether they would; and
- the threat was made without lawful excuse.
Importantly, the prosecution does not need to prove the accused actually intended to carry out the threat — only the intention or recklessness as to the victim’s belief or fear.
Penalty and Context
The maximum penalty is 10 years’ imprisonment. Although indictable, the offence is often heard summarily in the Magistrates’ Court, where a lower maximum applies. Threat to kill charges very commonly arise in heated domestic arguments and are frequently accompanied by intervention order proceedings, so they should be handled with the related matters in mind.
Defending the Charge
- No threat / words not a genuine threat — for example, words said in jest or as a mere expression of anger that no reasonable person would take as a threat to kill;
- No intent or recklessness as to the victim’s fear;
- Lawful excuse;
- Factual dispute or wrong identification; and
- Negotiation — reduction to threat to inflict serious injury, or resolution including diversion in suitable cases.
If you have been charged, contact us before speaking to police. See also our main assault offences page and our family violence page.
Frequently Asked Questions
Do I have to mean it to be guilty of threat to kill?
No. The prosecution does not have to prove you actually intended to carry out the threat. It only needs to prove you intended the other person to fear the threat would be carried out, or were reckless as to whether they would fear it. This surprises many people charged with this offence.
What is the maximum penalty for a threat to kill in Victoria?
The maximum is 10 years’ imprisonment under section 20 of the Crimes Act 1958. The related offence of threat to inflict serious injury (section 21) carries a maximum of 5 years. Both are often heard in the Magistrates’ Court, where a lower maximum applies.
I said it in the heat of an argument. Is that a defence?
It may be. If the words were not a genuine threat — for example, an expression of anger that no reasonable person would take as a real threat to kill — that can be a defence. Whether it succeeds depends on exactly what was said and the surrounding circumstances.
Does the threat have to be made directly to the person?
No. A threat to kill can be made in words or by conduct, and does not have to be communicated directly to the person threatened. A threat conveyed through a third party can still constitute the offence if the other elements are met.
Can a threat to kill charge be resolved without a conviction?
In suitable cases, yes — particularly lower-level matters dealt with in the Magistrates’ Court. Diversion or a finding of guilt without conviction may be achievable depending on the circumstances and history, and on how the matter is negotiated and presented.
Get Expert Legal Advice — Fixed Fees, No Surprises
McMahon Criminal Defence Lawyers provides experienced, fixed-fee representation for this charge and all criminal matters, appearing at the Ballarat Magistrates’ Court and across Victoria. Contact us for a free, confidential initial consultation.
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