Threatening violence in Queensland is a criminal offence where a person through their acts and/or words threatens another person with the intention to intimidate or annoy that person. The charge is commonly confused with Common Assault and Threats. This article seeks to outline and broadly examine Threatening Violence for those seeking additional information on this charge.
What does the law say?
Threatening violence involves the intentional use of, actions or words against another in order to intimidate or annoy that person, including threats to enter property.
Section 75 of the Criminal Code states:
(1) Any person who—
(a) with intent to intimidate or annoy any person, by words or conduct threatens to enter or damage a dwelling or other premises; or
(b) with intent to alarm any person, discharges loaded firearms or does any other act that is likely to cause any person in the vicinity to fear bodily harm to any person or damage to property;
commits a crime.
Penalty—
Maximum penalty—2 years imprisonment.
(2) If the offence is committed in the night the offender is guilty of a crime, and is liable to imprisonment for 5 years.
The Prosecution must prove each of the relevant provisions beyond a reasonable doubt to succeed in a prosecution for the charge.
s75(1)(a):
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The defendant, by acts or words threatened to enter or damage a dwelling (home) or premises (including the land boundary); and
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The defendant did so with the intent to annoy or intimidate another person.
s75(1)(b):
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The defendant discharged a loaded firearm (or did any other act likely to cause any person in the area to fear bodily harm to a person or damage to property); and
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The defendant did so with intent to alarm any person.
What are the elements of the offence?
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A person through their words or actions threaten to enter or damage a dwelling or other premises; and
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The person intended to intimidate or annoy another person.
or
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A person discharges a loaded firearm or did an action which likely would cause fear of harm or damage; and
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The person intended to alarm any person.
What do these elements actually mean?
Threatened - The court has determined that threatened takes its ordinary English word. A threat must be of such a nature and intent that an ordinary person might be influenced or frightened.
Intention – The court and parliament have determined again that Intent and Intention take their ordinary meaning. Intention can be inferred or drawn out from circumstances prior to and resulting from the conduct of the defendant before, during and after their conduct and acts.
The charge ultimately requires that a person threatens to enter a property (including but not limited to their home, their yard, their place of business ect) and the purpose of that threat to enter is to either intimidate or annoy that person.
Discharged a loaded firearm – This element is fairly self explanatory, did the person fire a firearm. Where there arises some ambiguity is acts likely to cause the fear of bodily harm to a person or damage to property. Such an extended definition could look like the producing and brandishing of a firearm, cocking the weapon and pointing it at a person.
What does this actually look like?
Some examples of what a Threatening Violence under s75(1)(a) looks like:
Mr Hatfield has a longstanding feud with his neighbour Mr McCoy. Mr Hatfield has taken exception to how Mr McCoy has let his hedges grow out and so Mr Hatfield standing at his front gate shouts at Mr McCoy that he is going to come onto his land and destroy his hedges. Mr Hatfield clearly has the intention to enter Mr McCoy’s property and damage his hedges.
Mr Jones is driving home from work when Mrs Smith cuts him off in traffic. Mr Jones follows Mrs Smith home and once she parks her car at home, he gets out of his car. Mr Jones is shouting and swearing at Mrs Smith and tells her that he is going to get his tire spanner from the boot of his car and break her windows for cutting him off. Mr Jones walks back to his car and opens his boot. Mrs Smith yells that she is calling the police and Mr Jones gets in his car and drives off. Mr Jones has by both his verbal threats to damage Mrs Smith’s car and the action of going to get the tire spanner form his vehicle cause Mrs Smith to be intimidated. Mr Jones’ intention can be clearly demonstrated through is words and conduct.
An example of what a Threatening Violence under s75(1)(b) looks like:
Mr Evans is trying to sell a stolen motorcycle to Mr Brown to make some quick money. Mr Evans gets frustrated with Mr Brown asking questions about its registration and service history and an argument breaks out between them about the bike being stolen and Mr Brown threatens to call the police. Mr Evans produces a firearm from his shorts and points it at Mr Brown, saying I am going to shoot you in the face if you do not get out of here right now. Mr Evans through his conduct has done an action which has caused fear of bodily harm to Mr Brown and it was Mr Evans intention to cause this fear in Mr Brown.
What are the defences to this charge?
The most common defences to this offence are:
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Mistake of Identity – meaning that the defendant is not the person who committed the offence;
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The words or actions did not constitute a valid threat;
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The defendant did not have the intention to threaten, annoy or intimidate the person;
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The defendant was not armed with a firearm (including replica);
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Self-defence; or
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Duress
What court will hear my matter?
All matters will commence in the Magistrates Court closes to where the offence occurred. If the charge occurred during the day, then the matter must be heard in Magistrates Court. If the offence occurred at night and police charge with this circumstance of aggravation, then the matter will be committed to the District Court to be dealt with.
The police want to talk to me about a matter where it is alleged I have threatened violence.
Never ever give an interview to police without first getting legal advice. Even if you are innocent, even if you have a defence you could say the wrong thing and virtually guarantee you will be found guilty of the charge.
The police are not on your side, get immediate legal advice before talking to police and if you can’t get that legal advice don’t talk to the police.
Learn more about your right to silence.
Can the charge be withdrawn?
Depending on the circumstances it may be possible to negotiate the charge with the prosecutor. This is called case conferencing. For example it might be possible to try and convince the prosecutor that the element of the charge aren’t made out or the defendant has a defence and therefore the charge should be withdrawn.
Conclusion
This article is by no means a completely comprehensive outline of the charge of threatening violence. This article is designed to give an overview of the charge, what the prosecution must prove and what the charge may look like in practice. If the police want to speak with you about a matter or you have been charged with threatening violence, please feel free to contact our office for a free initial consultation.
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