There are two types of unlawful threats, namely threatening to kill or threatening to harm another person.

Under section 19(1) of the Criminal Law Consolidation Act 1935 (SA) a person is guilty of an offence if they threaten to kill or endanger someone’s life, intending to arouse fear. A person will be guilty of an offence even if they were recklessly indifferent to the fear they arouse. Under the same section, a person will be guilty of an offence if they threaten to cause harm to another with the intention of arousing fear. A person will still be guilty if they were recklessly indifferent to the arousal of fear.

Recklessly indifferent means you didn’t intend to make someone fearful, but you should have realised that fear was likely to occur.

The maximum penalty for a basic offence of threatening to kill someone is 10 years imprisonment. If the offence was aggravated, the maximum penalty is 12 years imprisonment.

The maximum penalty for a basic offence of threatening to harm someone is 5 years imprisonment. If the offence was aggravated, the maximum penalty is 7 years imprisonment.

An offence is aggravated if you:

• deliberately and systematically inflicted severe pain on the victim
• used, or threatened to use, an offensive weapon
• committed the offence against a police or prison officer
• tried to dissuade a victim from participating in legal proceedings
• knew the victim was under 12 years of age
• knew the victim was over 60 years of age
• committed the offence against a former spouse/partner
• committed the offence against your child or a child of your former spouse/partner
• committed the offence in company with another person
• abused a position of trust or authority
• committed the offence against a disabled person
• committed the offence against a person who was vulnerable because of their employment, or
• committed the offence in contravention of a court order (eg a bail agreement or restraining order).

The prosecution must prove there was a threat (either to kill or harm) and you intended to make the person fearful.

You may have a defence to the charge if:

• you had the consent of the other person
• you were acting in self-defence, defence of another or defence of property
• you were under duress
• you had a mental impairment, or
• you had a lawful excuse.

This is a major indictable charge. The proceedings will initially commence in the Magistrates Court of South Australia. If there is sufficient evidence against you, the matter will then be transferred to the District Court of South Australia.