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Blackmail (WA)


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. Blackmail in Western Australia is covered by extortion offences in the Criminal Code Act Compilation Act 1913 (“Criminal Code”).

Legislation

Section 397 makes it an offence to demand property with threats to extort or gain. A person will be guilty of the crime if they to blackmail someone by demanding, in writing or orally, that something be procured or something be done or not done, under threat of injury or detriment of any kind if the demand is not complied with.

“Writing” includes any recording made on a device by which words or sounds are recorded and capable of being reproduced, such as a mobile phone.

The maximum penalty is imprisonment for 14 years.

Section 398 makes it an offence to use threats with an intent to extort. A person will be guilty of the crime if they accuse, or threaten, or offer to threaten to accuse, someone of committing an indictable offence.

The maximum penalty is imprisonment for 14 years. The penalty increases to 20 years if the accusation or threat of accusation is of:

  • an offence that carries a penalty of life imprisonment;
  • sexual offences or certain offences against morality such indecent acts;
  • an indecent assault;
  • a solicitation or threat offered to someone to induce them to commit or allow any of the above offences.

“Threat” is defined as a statement or behaviour that expressly constitutes, or could reasonably be regarded as constituting a threat to:

  • kill, injure, endanger or harm a person, whether a particular person or not;
  • destroy, damage, endanger or harm any property, whether particular property or not;
  • take or exercise control of a building, structure or conveyance by force or violence;
  • cause a detriment of any kind to a person, whether a particular person or not;
  • distribute an intimate image of any person.

What actions might constitute blackmail?

A person can be convicted of blackmail even if the threat was never carried out. The issue is whether there was an intention to extort someone by using a threat.

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 confidential information about another person;
  • a person threatening to poison an ex-partner’s pet if the ex-partner does not agree to resume the relationship.

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.

Sextortion

In 2020 a 25-year-old West Australian man was charged with extortion after allegedly pretending to be a teenage social media celebrity to blackmail girls online into performing sex acts.

He was remanded in custody on 312 charges relating to 285 alleged victims in Australia and overseas. The victims were believed to be as young as 11, and police were working with Interpol and social media companies to identify the victims.

He allegedly asked sexually explicit questions and edited written chat to change answers given by his victims. He allegedly then threatened to send the doctored chats to the victims’ friends and family if the girls refused to provide nude photographs or perform sex acts live on camera. This sexually explicit behaviour was recorded and the man would then threaten to release the footage unless more sex acts was performed.

Possible defences to blackmail

The accused person could argue that:

  • their actions did not constitute a threat;
  • they did not intend to extort someone;
  • they acted out of necessity or self-defence;
  • they were forced to blackmail someone because they were under duress from another party.

Possible penalties for blackmail

Apart from the penalties listed in sections 397 and 398, a court can impose penalties including:

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