The offence of blackmail is regulated by part 4b of the Crimes Act 1900 (NSW). Relevantly, s 249K makes it an offence to make an ‘unwarranted demand’ with menaces with the intention of obtaining a gain or causing loss, or with the intention to influence the exercise of a public duty. An offence against this section can result in imprisonment for up to 10 years. It is also against the law to accuse (or threaten to accuse) that a person has committed a serious criminal offence. Such an offence carries up to 14 years’ imprisonment.
What is an ‘unwarranted demand with menaces’?
Menaces is defined to include:
- an express or implied threat of any action detrimental or unpleasant to another person
- a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office.
A threat is not a menace unless it would cause an individual of normal stability and courage to act unwillingly in response to the threat, or the threat would cause the particular individual concerned to act in such a way and the person making the threat is aware of the vulnerability of that individual.
S 249L of the Crimes Act defines such a demand as 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.
The courts have noted that the demand does not necessarily need to be communicated to the target, there only needs to be an intention to communicate it to the target. This is because it is the behaviour in making the demand that is the ‘gist of the offence’.
It is also not necessary that the person making the demand actually obtained any benefit (or that the demand resulted in some loss). Therefore, a person may be convicted of blackmail even if the target ignored their demands.
How is blackmail dealt with?
A blackmail offence can be dealt with in the Local Court unless either the prosecution or the person charged elects otherwise. If dealt with in the Local Court, the maximum penalty available is 2 years’ imprisonment.