The Serious Offence of Making a Threat in WA

Making a threat to another is a serious offence under Western Australian criminal law. In November last year two me were charged with offences relating to threats made to the WA Premier Mark McGowan.

Allegedly the men left telephone messages on the Premier’s telephone in circumstances where they had been drinking alcohol and discussing how they would lose their jobs under the COVID vaccination mandates.

The Premier's mobile phone number was made publicly available during the height of the Covid-19 pandemic. The men allegedly called the number and left threatening messages that were accompanied with obscenities.

Last week one of the men pleaded guilty and was sentenced in the Armadale Magistrates Court. A plea of guilty was entered to a charge of making a false statement which was known to be false and which may reasonably have been construed as indicating a threat. The police prosecutor said Mr McGowan perceived the messages as a threat to him and his family.

The sentencing Magistrate said that the young man’s actions had shown a degree of immaturity. The court took into account the offender’s youth, his guilty plea and remorse. He was fined in the sum of $3,000. The co-accused has indicated he will plead not guilty to the charge against him. His case returns to court next month.

What does the law say about Threats charges?

Pursuant to Sections 338B and 338C of the Criminal Code Compilation Act 1913, it is a criminal offence for a person to make a threat to unlawfully –

(a) Kill, injure, endanger or harm any person (whether a particular person or not);

(b) Destroy, damage, endanger or harm any property (whether particular property or not);

(c) Take or exercise control of a building or structure or conveyance by use of force or violence;

(d) Cause a detriment of any kind to any person, whether a particular person or not, is guilty of a crime.

What the Prosecution must prove

1. That (through either words or behaviour) a threat was made to do any of the above things mentioned in (a)-(d);

2. That the threat was unlawful; and

3. That the threat was made to another person.

Threats can be made verbally – through dialogue or through written words, or they can be acted out. It is the making of the threat which constitutes the offence.

A conviction for the offence of making a threat to kill requires proof that a threat was made and that the threat, when viewed objectively, must declare an intention to kill. That requires an examination of the words used and the circumstances in which the words were spoken. Words which, taken at face value, might amount to a threat to kill will not constitute the offence if they are spoken in jest, parody or frustration. The words must convey an intention to kill.

Where the charge is one other than a threat to kill the prosecution is not required to prove that the accused had an intention to carry out the threat. However if the intention is established that is an aggravating factor relevant to sentence; R v Starr [1999]WASC 119.

A threat will be more serious if it was made in circumstances where the offender had the ability to carry out the threat; for example where the threat was made while the offender was armed with a weapon.

Penalties

There are significant variations in the facts and circumstances of offences under section 338B and 338C of the Criminal Code. The sentence to be imposed in each case will largely depend on the particular facts and circumstances of the offence, having regard to the maximum penalty, and the personal circumstances of the offender.

Although there are generally significant variations in the factual circumstances of each case, there are also similarities. Threats charges often show an intention to frighten and humiliate the victim.

In circumstances where the threat is to kill, the matter must be determined before a judge in the District Court. There the maximum penalty is 7 years imprisonment. If the threat to kill is made in circumstances of racial aggravation, the maximum penalty is 14 years imprisonment.

Where the threat is one other than a threat to kill the charge can be dealt with either by the Magistrates Court or the District Court. Where the charge is brought on an indictment in the District Court the maximum penalty is 3 years imprisonment. The District Court penalty increases to 6 years imprisonment in circumstances of racial aggravation. If the charge is dealt with in the Magistrates Court the maximum penalty is 18 Months imprisonment and a fine of $18,000.

Contact Us

If you have been charged with the criminal offence of making threats and need representation from an experienced Criminal Lawyer, contact the Andrew Williams Criminal Law Offices without delay on (08) 9278 2575.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.