Threats & Causing Fear in NSW Domestic Violence Matters

What counts as a criminal threat in NSW

Crimes Act 1900 (NSW), s 31: a person who sends or delivers, or directly or indirectly causes to be received, any document threatening to kill or inflict bodily harm on any person is guilty of an offence. DEAN-VERIFY: confirm exact provision text, elements, and whether "document" has been interpreted to include electronic messages; confirm max penalty under current Act.

The threshold question in these matters is whether the conduct amounts to a criminal threat — as distinct from words spoken in anger that fall short of the legal definition, or conduct that is better captured by the intimidation offence under the domestic violence legislation. Section 31 focuses on explicit communications threatening to kill or cause grievous bodily harm: a threat in writing, a message, or a document conveyed directly or indirectly to the person threatened.

Three features of the offence shape how these cases run:

• The communication itself — its words, its context, and whether a reasonable person would read it as a genuine threat — is central to the prosecution's case;
• No physical act is required: the threat is the offence; and
• The threat must be without lawful excuse — a lawful excuse is rare, but the absence of it is an element the prosecution must establish.

In domestic violence matters, threatening messages are frequently handed to police by the other party. The full thread — not the single message isolated in the charge — is almost always the most important piece of evidence, because context determines whether words read as a threat or as something else entirely.

Threats versus intimidation — where the line sits

These two concepts overlap but are not the same, and understanding the distinction matters for anyone charged in a domestic violence context.

Intimidation under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 is a broader concept: it covers harassment or molestation, approaches by any means — phone, text, online — that cause fear for safety, and conduct causing a reasonable apprehension of injury. Critically, s 13 is the offence that also captures stalking and sustained patterns of contact. It is the primary charge in most domestic violence matters involving repeated unwanted contact. For the full detail of that offence — including how it applies to texts, calls and online conduct, and how it interacts with an AVO — see the Stalking & Intimidation page.

A criminal threat under section 31 is more specific: it is directed at an explicit communication threatening death or grievous bodily harm. A single message of that gravity can found a charge without any pattern of contact. In practice, a domestic violence incident that involves both repeated contact and an explicit threat will often generate charges under both provisions — or the prosecution will select the charge that best reflects the conduct as a whole. Whether one charge, the other, or both are laid is a prosecutorial decision, but it determines the defence approach, the maximum penalty and the court in which the matter is heard.

If you have been charged with intimidation, stalking, or both — rather than with a threats offence specifically — the Stalking & Intimidation page is the right starting point.

Penalties

DEAN-VERIFY: confirm maximum penalty for s 31 Crimes Act 1900 (NSW). Maximum reported at 10 years' imprisonment — confirm against current Act. Confirm whether any fine component applies and the applicable penalty units. NSW penalty unit = $110 at time of drafting — confirm current value.

Threats charges are treated as serious by the courts, particularly in a domestic violence context where a threat is directed at a former or current partner and is accompanied by an AVO or a history of concerning conduct. The matter is typically heard in the Local Court (where the jurisdictional maximum of 2 years applies), but serious or aggravated matters can be committed to a higher court.

Beyond the criminal penalty itself, a threats charge in a DV context almost always carries collateral consequences: a provisional AVO applied for at the time of charge, bail conditions that may exclude you from your home, and — on conviction — a final AVO. These consequences need managing from day one.

Defences and answers to a threats charge

• The words do not amount to a threat — in context, whether a reasonable person would read the communication as a genuine threat to kill or cause serious harm, rather than hyperbole or frustrated language;
• Lawful excuse — while rare, the absence of lawful excuse is an element; in unusual circumstances this can be contested;
• Context and full communication record — a message read in isolation can look very different from the same message read in its thread; what preceded it, whether the other party had been inviting contact, and the nature of the ongoing exchange are all relevant;
• Identification — in digital communications, proving who sent the message from a shared device or account; and
• Mental state — in appropriate cases, whether the accused had capacity to form the relevant intention at the time.

Where the conduct is established and a plea is entered, the work shifts to the subjective case: what was driving the conduct, the relationship history, steps taken since — courses, counselling, strict no-contact — and a measured account of the person behind the charge.

How Lenz Legal approaches threats charges in domestic violence matters

A threats charge in a DV context rarely arrives without company: there is usually a provisional AVO, bail conditions affecting where you can live, and in many cases a parallel family law dimension — children, property — that runs alongside the criminal proceedings. The approach is to treat the whole position as one strategy from the outset, not to deal with the criminal charge and the AVO in separate streams.

The first task is the evidence: obtaining the complete communications record — not the extracts handed to police — because context is nearly always where the real question lies. A single message lifted from a longer exchange is not the same thing as that message read in full. Whether the words constitute a criminal threat, whether the communication was accompanied by an intention the prosecution can establish, and what the surrounding circumstances say about the conduct — these are the questions that determine the direction the matter takes.

If you have received a court attendance notice or police have made contact about messages or words directed at a former or current partner, do not send any further communications to the other party, and do not speak to police without advice. Those two steps — continued contact, and an unadvised interview — are the most reliable ways a difficult situation becomes a worse one.

Threats & causing fear — your questions answered