If you have been charged with the blackmail offence, it helps to know exactly what the law in New South Wales says and what your next move should be. Blackmail is a serious criminal offence under Part 4B of the Crimes Act 1900 (NSW). It carries a maximum penalty of 10 years’ imprisonment, rising to 14 years in aggravated cases.
Our latest article explains what has to be proved, the penalties and possible defences, and the immediate steps to take – whether you are the person accused or the person being targeted.
What Is An Unwarranted Demand With Menaces?
Blackmail turns on two ideas: an unwarranted demand and threats. A demand can be for money, property, services, or for a person to act or refrain from acting. What makes the conduct an offence is that the demand is backed by menaces and is not justified.
Menaces are defined broadly. They include an express or implied threat of any action detrimental or unpleasant to another person, and a general threat of detrimental or unpleasant action implied by the fact that the person making the demand holds a public office.
An implied threat need not be spoken at all; it can be communicated through tone, body language or gestures. A threat is only a menace, though, if it would cause a person of normal stability and courage to act unwillingly in response to the threat. Where the person making the threat knows of a particular vulnerability in the alleged victim, a threat that would move that particular person to act unwillingly can also qualify, even if it would not move someone of normal stability and courage.
Importantly, the demand need not reach its target, and the offender need not succeed. The demand need only be made with the intention of communicating it, because it is the making of the demand that is the gist of the offence. A person can be convicted of blackmail even if the alleged victim ignored the demand and no benefit was ever obtained.
That is worth knowing if you are wondering whether someone is bluffing under NSW law; the threat need not be carried out for an offence to have been committed.
What Must Be Proved to Constitute Blackmail: The Four Points of Proof
To secure a conviction, the prosecution must prove every element of the offence beyond reasonable doubt. It helps to think of blackmail as four points of proof.
1. An Unwarranted Demand (s 249L)
A demand is unwarranted unless both limbs of a two-part test are met: the person believes they have reasonable grounds for making the demand, AND they reasonably believe that the use of the menaces is a proper means of reinforcing it.
If a person believes they have reasonable grounds and that the menaces are proper, the demand is not unwarranted, and the unwarranted demand is lawful. Both reasonable grounds and proper means must be present; a genuine belief in one without the other is not enough.
2. Menaces (s 249M)
The threat must amount to a menace, as explained above: an express or implied threat of action detrimental or unpleasant to the target. It is judged against the normal stability and courage test: would the threat make a person of normal stability and courage act unwillingly in response to the threat, rather than of their own free will?
Where the accused knows the target is unusually vulnerable, a threat that would make that particular person act unwillingly in response can also qualify. A general threat can also arise where the person making the demand holds a public office.
3. Intent to Obtain a Gain, Cause a Loss or Influence a Public Duty (s 249N/O)
The person must act with the intention of obtaining a gain or causing a loss (which can extend to money or other property), or of influencing the exercise of a public duty – for example, a duty carried out by a person holding a public office, a public official, or a body corporate. Without that intention, the conduct does not constitute blackmail.
4. The Demand Was Made With Menaces
Finally, the demand and the menaces must come together: the unwarranted demand with menaces must be made by the accused. Because the offence is complete when the demand is made, prosecutors do not need to show any money changed hands.
What Is the Maximum Penalty for Blackmail in NSW?
The maximum penalty for a blackmail offence in NSW is 10 years’ imprisonment. The offence becomes aggravated—carrying a higher maximum penalty of 14 years—where the menaces include a threat to accuse, or to threaten to accuse, a person of having committed a serious indictable offence. Blackmail is an indictable offence, and in its aggravated form it is treated as a serious indictable offence in its own right.
How Blackmail Charges Are Dealt With in Court
Blackmail is an indictable offence, but it can be finalised in the Local Court unless either the prosecution or the person charged elects to have it dealt with in the District Court. If the matter stays in the Local Court, the maximum penalty available is 2 years’ imprisonment for the offence. If either party elects the District Court, the higher statutory maximum applies.
In practice, a charge usually follows this path: you are charged and given a court attendance notice; the matter is listed for a first mention; a decision is made about whether the case proceeds in the Local Court or is committed to the District Court; and the matter then resolves by a plea or proceeds to a defended hearing or trial. Blackmail is a criminal offence that can affect your record for life, so what happens at these early stages matters.
Will I Go to Prison for Blackmail?
Prison is the maximum outcome, not the only one. NSW courts have a range of sentencing options, and a custodial sentence is far from automatic, particularly for a first offence, an early plea, or where strong subjective material is put before the court.
Depending on the seriousness of the matter, alternatives can include a section 10 (a finding of guilt without a conviction being recorded), a fine, a community correction order (CCO), an intensive correction order (ICO) served in the community, or a conditional release order.
Possible Defences to a Blackmail Charge in NSW
There are real, established defences to a blackmail charge. Which ones apply depends entirely on the facts, but the main possible defences include:
- A reasonable and genuine belief in reasonable grounds and proper means. If the person believes they had reasonable grounds for the demand and reasonably believed the menaces were a proper means of reinforcing it, the demand is not unwarranted — which defeats a central element of the offence. This is often decisive where a demand was tied to recovering a genuine debt.
- No intent. If the prosecution cannot prove the required intention to obtain a gain, cause a loss, or influence a public duty, the charge fails.
- Duress or necessity. Where the accused acted under a serious threat or in circumstances of genuine necessity.
- A factual dispute or mistaken identity. The prosecution must prove every element beyond reasonable doubt; raising reasonable doubt on any single element, including whether you made the demand, is enough.
What to Do if You Have Been Charged With Blackmail
If you have been charged or the police have asked you to attend an interview, the early decisions matter. As a general guide:
- Do not contact the complainant or the alleged victim; doing so can make things worse and may breach bail conditions.
- Do not delete or destroy anything. Preserving messages and records protects you; deleting them can look like consciousness of guilt.
- Do not give a police statement or take part in an interview before you have spoken to a lawyer.
- Get legal advice early from an experienced criminal defence lawyer, before your first court date.
Hamilton Janke Lawyers is a criminal defence firm, acting for clients throughout the Hunter and across NSW. If you have been charged with a blackmail offence, contact our team for clear advice on where you stand.
