Blackmail (NSW)

In New South Wales, the behaviour commonly known as blackmail or extortion is covered by the offence of ‘make an unwarranted demand with menaces’. This offence is contained in Section 249K(1) of the Crimes Act 1900 (NSW). The offence is committed when a person makes an unwarranted demand (or threat) with the intention to obtain payment or some other advantage, or cause a loss to another person.

Making an unwarranted demand with menaces

A person commits an offence of makes an unwarranted demand with menaces if they:

• make an unwarranted demand with menaces; and either
• intend to gain an advantage or cause a loss; or
• intend to influence the exercise of a public duty.

The offence can be committed through actions as well as words and does not necessarily need to be carried out in person. It can also be carried out via documents or a carriage service (such as the post, telephone network or internet).

A person can still be found guilty even if they did not actually obtain a benefit, cause a loss and if the recipient did not respond to the demand.

What are menaces?

Menaces are defined in Section 249M of the Crimes Act 1900 (NSW) as:

Menaces are defined in Section 249M of the Crimes Act 1900 (NSW) as:
• express or implied threats of any action unpleasant or detrimental to another person; and
• threats that are detrimental or unpleasant because the person making the unwarranted demand holds a public office position.

A threat against an individual or a government or body corporate is only menacing if the threat:

• causes a reasonable individual to unwillingly respond to the threat; or
• the person who makes the threat is aware that a vulnerable person is likely to act unwillingly in response to the threat.

What actions might constitute this offence?

The following acts could form the basis of a charge of making an unwarranted threat with menaces.

• Threatening to tell a person’s spouse that they have been unfaithful unless they pay a certain amount of money;
• Threatening to publish a minister’s previously deleted tweet if they don’t introduce a certain bill to parliament.

Aggravated offence

Section 249K(2) contains an aggravated form of this offence.

The offence is aggravated where a person commits the offence and does so by threatening to make an accusation that the victim has committed a serious indictable offence. The maximum penalty for the aggravated offence is imprisonment for 14 years. The maximum penalty for a simple offence (without circumstances of aggravation) is imprisonment for 10 years.

An example of the aggravated offence is where a person demands that another person pay them a sum of money and threatens to file a police report alleging that the person sexually assaulted them if they do not do so.

Defences

A person charged with making an unwarranted demand with menaces could defend the charge by arguing:

• that they did not do the acts alleged (factual defence);
• that any demand made was not with ‘menaces’ (i.e. it was not detrimental or unpleasant’;
• that there was no intention to cause a gain, loss or to influence the exercise of a public duty.

Penalties

In New South Wales, you could be sentenced to one or more of the following penalties for this offence.

• Prison Sentence
• Intensive Corrections Order (ICO)
• Suspended Sentence
• Community Service Order (CSO)
• Good Behaviour Bond
• Fine

If you require further information on blackmail or any other legal matter contact Armstrong Legal on 1300 038 223 or send us an email.