What is Blackmail?

Blackmail is an offence under section 249K of the Crimes Act 1900 (NSW). The offence generally involves making an unwarranted demand with menaces with the intention of:

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

A more serious form of the offence can apply where the blackmail involves an accusation, or threatened accusation, that another person has committed a serious indictable offence.

Blackmail does not necessarily involve a demand for money. It can also involve threats designed to force another person to act in a particular way.

Common Types of Blackmail

Blackmail can arise in a number of different ways.

Extortion

This may involve demanding money or another benefit in exchange for keeping private or damaging information confidential.

Coercion

This may involve threatening to expose information unless another person performs a particular act or behaves in a certain way.

Commercial Pressure

In a business context, blackmail may involve threats to disclose damaging information about a company, employee or business unless money, employment benefits or some other advantage is provided.

Elements of a Blackmail Offence

To prove blackmail, the Prosecution must establish each required element beyond reasonable doubt.

1. A Demand Was Made

The Prosecution must prove that the accused made a demand of another person.

2. The Demand Was Accompanied by Menaces

The Prosecution must establish that the demand involved threats, pressure or conduct capable of influencing or intimidating the person receiving it.

3. The Demand Was Unwarranted

The Prosecution must prove that the demand was unwarranted in the circumstances.

4. The Accused Had the Required Intention

The Prosecution must prove that the accused intended to:

• obtain a gain;
• cause a loss; or
• influence the exercise of a public duty.

For the aggravated form of the offence, the Prosecution must also prove that the demand involved an accusation or threatened accusation concerning a serious indictable offence.

What Are the Penalties for Blackmail?

Under section 249K(1) of the Crimes Act 1900 (NSW), blackmail carries a maximum penalty of 10 years imprisonment.

Where the offence involves an accusation or threatened accusation that a person committed a serious indictable offence, the maximum penalty under section 249K(2) increases to 14 years imprisonment.

The sentence imposed will depend on factors including:

• the nature of the demand;
• the seriousness of the threats;
• the amount of money or benefit sought;
• whether the conduct was planned or repeated;
• the impact on the alleged victim;
• the accused person’s criminal history;
• whether the matter proceeds as a guilty plea or trial; and
• the accused person’s personal circumstances.

Pleading Guilty

If you plead guilty to blackmail, the matter will proceed to sentene.

The Court will consider the seriousness of the conduct, your criminal history, personal circumstances, rehabilitation and any remorse shown. A guilty plea may also be taken into account when determining the appropriate sentence.

Your lawyer can prepare sentencing material and make submissions aimed at achieving the most favourable outcome available.

Pleading Not Guilty

If you plead not guilty, the Prosecution must prove every element of the offence beyond reasonable doubt.

Your lawyer may challenge issues such as:

• whether a demand was actually made;
• whether the communication amounted to a menace;
• whether the demand was unwarranted;
• whether the required intention existed;
• the meaning and context of text messages, emails or recordings;
• the reliability of witness evidence; and
• inconsistencies in the Prosecution case.

If the Prosecution cannot prove the offence beyond reasonable doubt, you should be found not guilty.

Defending a Blackmail Charge

Depending on the circumstances, possible defences or issues may include:

• disputing that any threat or menace was made;
• disputing that the demand was unwarranted;
• lack of intention to obtain a gain or cause a loss;
• mistaken identity;
• duress; or
• challenging the reliability and context of the Prosecution evidence.

Blackmail matters often involve messages, recordings and other electronic communications, making careful examination of the surrounding context particularly important.

Which Court Will Hear a Blackmail Matter?

Blackmail is a serious indictable offence. Depending on the circumstances and how the matter proceeds, it may be dealt with in the Local Court of NSW at an initial stage before proceeding to the District Court of NSW for more serious proceedings.

Your lawyer can advise you about the court process and what to expect at each stage.

How We Can Help

At Chidiac & Associates, we understand that a blackmail allegation can have serious consequences for your liberty, employment, reputation and future.

We can assist by:

• reviewing police allegations and the brief of evidence;
• examining text messages, emails, recordings and digital evidence;
• advising you about your plea and legal options;
• identifying possible defences;
• challenging the meaning and context of alleged threats;
• negotiating with prosecutors where appropriate;
• seeking withdrawal or reduction of charges where available;
• representing you at all court appearances; and
• preparing your matter for trial or sentencing.