What Constitutes the Offence of Blackmail?

In 2011, one HSC student made headlines because an intruder into her family hope had strapped a device she was told was a bomb strapped to her neck in an attempt to blackmail her wealthy parents for money.

The man was eventually caught, charged and sent to prison.

Incidents of blackmail are historically prevalent and continue to be so today.

The offence of blackmail in NSW

Section 249K of the Crimes Act sets down a maximum penalty of 10 years in prison for the crime of blackmail, which is where a person makes any unwarranted demand with menaces with the intention of:

• obtaining a gain or causing a loss, or
• influencing the exercise of a public duty.

The maximum increases to 14 years where the person threatens to commit a serious indictable offence, which is any offence that carries a maximum penalty of at least five years’ imprisonment.

Examples of serious indictable offences include larceny (stealing), assault occasioning actual bodily harm, robbery etc.

Section 249L explains 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 the menace 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.

The section makes clear that 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.

Further, 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 event, it is immaterial whether the menaces relate to action to be taken by the person making the demand.

Section 249N defines the terms ‘gain’, ‘obtaining a gain’, ‘loss’ and ‘causing a loss’.

A ‘gain’ is defined as any gain in money or other property, whether temporary or permanent, and includes keeping what one has.

‘obtaining a gain’ includes obtaining a gain for oneself or for another person.

A loss is a loss in money or other property, whether temporary or permanent, and includes not getting what one might get.

‘causing a loss’ includes causing a loss to another person.

And finally, section 249O defines ‘public duty’ as a power, authority, duty or function:

• that is conferred on a person as the holder of a public office, or
• that a person holds himself or herself out as having as the holder of a public office.

Going to court for blackmail?

If you are going to court for blackmail, impersonating a police officer or another criminal offence, call Sydney Criminal Lawyers® anytime on (02) 9261 8881 to arrange a free first conference with an experienced criminal defence lawyer, who will take the time to advise you of your options, the best path forward and the costs involved.