Blackmail, also known as extortion, occurs when someone:
- Dishonestly demands something such as money or property that is in the possession of, or under the control of, another person, and
- That demand is accompanied by threat or force, designed to intimidate the other person into complying with the demand.
The intention may be to either gain something or cause a loss to the victim, or to influence the exercise of a public duty.
While the word “extortion” is not explicitly used in the language of NSW legislation, there are several criminal offences under various sections of the Crimes Act 1900 (NSW) that speak to the act of attempting to obtain something by threat or force or menace, including:
- Blackmail (s249K).
- Demanding property with intent to steal.
- Stealing property in a dwelling-house with menaces (s149).
Examples of blackmail / extortion
In some recent examples of blackmail that have been before the courts, offenders have threatened that unless a prescribed sum of money is paid to them, they will:
- Release compromising photos of a person.
- Falsely accuse a person of rape.
- Engage in violent behaviour towards a person or their family.
- Destroy a person’s property.
- Ruin a person’s reputation.
- Refuse to delete explicit material concerning a person from their phone.
Penalties for blackmail / extortion
Blackmail is treated as a very serious offence both in legislation and case law, as seen in the high maximum penalties for the offence. Most people found guilty of blackmail receive full time custodial sentences.
In NSW, blackmail falls under part 4B, s 294K of the Crimes Act 1900, as detailed below:
| Section | Offence | Maximum Penalty |
| 249K(1) | A person who makes any unwarranted demand with menaces–
(a) with the intention of obtaining a gain or of causing a loss, or (b) with the intention of influencing the exercise of a public duty, is guilty of an offence. |
10 years’ imprisonment |
| 249K(2) | A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) by an accusation, or a threatened accusation, that a person has committed a serious indictable offence. | 14 years’ imprisonment |
To assist in interpreting s 294K of the Crimes Act, section 249L states that a demand with menaces is unwarranted unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of menaces is a proper means of reinforcing the demand.
Under s 249M of the Crimes Act, the definition of “menaces” includes an express or implied threat of any action detrimental or unpleasant to another person. In the case of a person making unwarranted demands holding a public office, “menaces” includes a scenario in which the general threat of detrimental or unpleasant action is implied because of that public office.
S 249M also states that for a threat to constitute a menace it would need to cause an individual of normal stability and courage to act unwillingly in response to the threat. If the victim is a particularly vulnerable person, the legislation states that the threat would constitute a menace if it would cause the individual to act unwillingly and the person who made the threat is aware of the vulnerability of this individual. Some examples of vulnerability include:
- Having a disability.
- Being over 60 years old.
- Having a disorder, illness or disease that affects the person’s thought processes, perception of reality, emotions, or judgement.
- Having an intellectual, psychiatric. or sensory impairment.
If a threat is against a government or body corporate, the threat, in order to constitute a menace, must cause an unwilling response.
Other offences in the Crimes Act a person could be charged under include:
| Section | Offence | Maximum Penalty |
| 99(1) – demanding property with intent to steal | Whosoever, with menaces, or by force, demands any property from any person, with intent to steal the same, shall be liable to imprisonment for ten years. | 10 years’ imprisonment |
| 99(2) – demanding property with intent to steal | A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. | 14 years’ imprisonment |
| 149 – stealing property in a dwelling house – the same with menaces | Whosoever steals any property in a dwelling-house, and uses thereafter any menace or threat to any person therein, shall be liable to imprisonment for 14 years. | 14 years’ imprisonment |
| 31 – documents containing threats of killing or inflicting bodily harm on a person | (1) A person who intentionally or recklessly, and knowing its contents, sends or delivers, or directly or indirectly causes to be received, any document threatening to kill or inflict bodily harm on any person is liable to imprisonment for 10 years. | 10 years’ imprisonment |
| 86(1) – kidnapping (basic offence) | A person who takes or detains a person, without the person’s consent—
(a) with the intention of holding the person to ransom, or (a1) with the intention of committing a serious indictable offence, or (b) with the intention of obtaining any other advantage |
14 years’ imprisonment |
| 86(2) – kidnapping (aggravated offence) | A person is guilty of an offence under this subsection if—
(a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. |
20 years’ imprisonment |
| 86(3) – kidnapping – special aggravated offence | A person is guilty of an offence under this subsection if the person commits an offence under subsection (1)—
(a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. |
25 years’ imprisonment |
What the prosecution must prove
To prove blackmail, beyond a reasonable doubt, the prosecution must prove that a person:
- Made an unwarranted demand with menaces, and
- In making the demand, the person intended to:
- obtain a gain,
- cause a loss, or
- influence the exercise of a public duty.
It is important to note that blackmail can be made out even in circumstances in which the benefit was never obtained, or the threat was never actually carried out. What the police need to prove is that the offender, beyond a reasonable doubt, intended to gain something or cause a loss.
The court applies an objective test, considering whether a person of “reasonable firmness and courage” would have considered the conduct to be a threat, and whether they would have acted unwillingly in the circumstances.
Possible defences
Defending a charge of blackmail could include arguing that:
- Your actions did not constitute menaces.
- You did not intend to gain a benefit or cause a loss.
- You were attempting to retrieve property and you believed that you had reasonable grounds for making the demands, and reasonably believed that the use of menaces was a proper means of reinforcing that demand.
- You were forced to blackmail someone because you were under duress from another party.
How can we help?
Nyman Gibson Miralis provides expert advice and representation to individuals charged with blackmail and extortion.
Contact us if you require assistance.
