Is Blackmail A Crime? (NSW)

Is blackmail a crime? The answer is yes. The offence of blackmail is committed when one person makes a demand on another person for specified property, and that demand is accompanied by threat or force.

Legislation

Section 249K(1) of the Crimes Act 1900 codifies the offence of blackmail as where a person makes any unwarranted demand with menaces with the intention to:

• obtain a gain or cause a loss
• influence the exercise of a public duty.

It carries a maximum penalty of 10 years imprisonment.

The maximum increases to 14 years imprisonment where the person threatens to commit a serious indictable offence, such as robbery or assault occasioning actual bodily harm.

Section 249L states a demand is considered unwarranted “unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menaces is a proper means of reinforcing the demand”.

“Menaces” is defined by Section 249M to include:

• an express or implied threat of any action detrimental or unpleasant to another person, and
• a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office.

A threat against an individual does not constitute a menace unless it would cause:

• an individual of normal stability and courage to act unwillingly in response to the threat, or
• the particular individual to act unwillingly in response to the threat and the person who makes the threat is aware of the vulnerability of the particular individual to the threat.

A threat against a government or body corporate does not constitute a menace unless it would:

• ordinarily cause an unwilling response, or
• cause an unwilling response because of a particular vulnerability of which the person making the threat is aware.

In any case, it is immaterial whether the menaces relate to action to be taken by the person making the demand.

Section 249N defines “gain, ”obtaining a gain”, “loss” and “causing a loss”.

A “gain” is defined as a gain in money or other property, temporarily or permanently, and “obtaining” means for oneself or another. A “loss” is defined as a loss in money or other property, temporarily or permanently, and “causing” means causing a loss to another.

Section 249O defines “public duty” as a power, authority, duty or function conferred upon the person as the holder of a public office or that a person holds themselves out as having as the holder of a public office.

What actions might constitute blackmail?

A person can be convicted of blackmail even if the benefit was never obtained or the threat was never carried out. The issue is whether there was an intention to obtain gain or cause a loss.

The threat can be express or implied. It can be made without the use of words, but implied via body language or gestures.

Examples of blackmail include:

• a person demanding access to children under the threat of violence;
• a person demanding money in exchange for not publishing naked photos of another person;
• a person threatening to poison an ex-partner’s pet if the ex-partner does not agree to resume the relationship.

What must the police prove?

Beyond a reasonable doubt, the police must prove that a person:

1. Made an unwarranted demand with menaces; and
2. In making the demand, the person intended to:

• obtain a gain;
• cause a loss;
• influence the exercise of a public duty.

Questions will be asked from an objective point of view, with the court considering whether a person of “reasonable firmness and courage” would have considered the conduct to be a threat.

What possible defences are there?

The accused person could argue that:

• their actions did not constitute menaces;
• they did not intend to gain a benefit or cause a loss;
• they were forced to blackmail someone because they were under duress from another party.

Possible penalties

Apart from the penalties listed in s249K, a court can impose penalties including:

• a fine;
• a Community Service Order;
• a suspended sentence;
• an Intensive Correction Order;
• home detention;

Which court will hear the matter?

A blackmail charge can be heard in a Local Court unless either the prosecution or the person charged elects otherwise.

If you require legal advice or representation in any legal matter, please call Armstrong Legal.