Extortion and blackmail are serious criminal offences in New South Wales that involve using threats or coercion to obtain money, property, or other benefits from another person. If you are facing extortion charges or being victimised by extortion, understanding your legal rights and available remedies is crucial. The Crown must prove beyond reasonable doubt that an individual made an unwarranted demand accompanied by threats to secure a conviction.
What is Extortion vs Blackmail?
There is no specific crime of “extortion” in New South Wales. However, blackmail is a form of extortion as it involves obtaining something through threats or coercion. In NSW, conduct commonly referred to as extortion is prosecuted under blackmail provisions in Section 249K of the Crimes Act 1900 or as demanding property with intent under Section 99.
Prior to the enactment of criminal statutes, extortion existed under common law as a crime that only public officials could commit. Extortion historically involved a public official refusing to perform an official act without receiving payment. The term has historical roots in English law dating back to the First Statute of Westminster in 1275.
Today, parties use the terms blackmail and extortion interchangeably to describe obtaining property, money, or services through force, threats, violence, or coercion. In the United States and Australia, both terms often refer to similar criminal conduct. Although there are similarities between the two crimes and sentencing guidelines are the same for both offences, extortion and blackmail can describe different acts depending on jurisdiction.
Elements of Blackmail Offences
Section 249K of the Crimes Act 1900 provides that blackmail is an offence carrying a maximum penalty of 10 years imprisonment. An alleged perpetrator commits blackmail when they:
- Make an unwarranted demand
- That demand was made with menaces
- Intended to obtain a gain or cause a loss, or to influence the exercise of a public duty
The Unwarranted Demand
Section 249L provides 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.
The demand can be expressed (obvious and clear), or it can be subtle and implied by conduct. The demand does not have to be a demand for money or property. The object of the demand is irrelevant from a legal perspective. For instance, demanding that someone perform an action, refrain from doing something, or provide services can all constitute blackmail if accompanied by menaces.
A building contractor who threatens to publicise negative reviews unless paid a disputed invoice may face blackmail charges, though the demand might be considered warranted if based on a legitimate contractual dispute.
Menaces Defined
“Menaces” is defined by Section 249M and includes 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.
A threatened action 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.
Menaces are threats where the mind of an ordinary person of normal stability and courage might be influenced so as to unwillingly give in to the demand. The most common form of extortion is robbery, where a robber threatens a victim with violence if they do not hand over money. However, blackmail does not typically include threats of violence to a person or property; it usually involves threats to disclose embarrassing information.
In DPP v Kuo (1999) 49 NSWLR 226, the Court ruled that the threat does not have to be against the person, but can also be a threat to property only. A former employee who threatens to reveal company trade secrets to competitors can establish menaces despite making no physical violence threats.
Intent to Gain or Cause Loss
Section 249N defines “gain” as a gain in money or other property, temporarily or permanently, and “obtaining” as obtaining a gain for oneself or another. “Loss” means a loss in money or other property, temporarily or permanently, and “causing” means causing a loss to another.
A person can be convicted of blackmail even if the benefit was never obtained or the threat was never carried out. The fact that no loss or gain occurred will not cause a charge of blackmail to be unsuccessful. For example, if you threatened another person and they ignored your threats, you could still be charged with blackmail. If there was an intention to obtain a gain or cause a loss, it would already constitute an offence of blackmail.
Extortion vs Blackmail: Key Differences
Whilst extortion and blackmail are often confused, there are technical distinctions. Blackmail typically involves threats to reveal damaging information, whilst extortion traditionally involves threats of violence or property damage. Blackmail generally refers to hush money, whilst extortion refers to certain forms of public official misconduct and threats of physical harm.
Extortion differs from blackmail in the nature of the threat, as extortion involves threats of violence or destruction of property. In cases of blackmail, any threatened action will not refer to violence or physical damage. The distinction is important historically but less relevant in modern NSW law, where both are prosecuted under the same statutory provisions.
In some jurisdictions, extortion is categorised as a misdemeanour or a felony based on the value of the property or the amount of money taken from the victim. Both extortion and blackmail are usually classified as felonies in most jurisdictions.
The first references to blackmail date from the sixteenth century in Scotland, where it was defined as obtaining property through written threats of physical harm. In the United States, New Jersey passed one of the first statutes against blackmail in 1796, prohibiting threats to expose any crime.
Types of Extortion & Blackmail
Traditional Blackmail
Examples of acts of blackmail include:
- A person demanding access to children under the threat of violence
- A person threatening to poison an ex-partner’s pet if the latter does not agree to resume the relationship
- A person threatening to search the victim’s house and remove the victim’s children unless the victim would give them a certain sum of money
- A person threatening to set fire to the victim’s house if the victim would not come with them
A Sydney politician who received demands to pay $100,000 or face public release of compromising photographs from decades earlier represents a classic blackmail scenario.
Sextortion
Another form of blackmail is “sextortion” (a combination of a sexual offence and extortion), commonly known as sexual blackmail. This occurs when a person threatens to distribute, publicise or post one or more intimate images of the person unless demands are met.
Sextortion is governed under Sections 91P, 91Q, and 91R of the Crimes Act 1900 and carries penalties ranging from three to six years imprisonment. University students are particularly vulnerable as perpetrators exploit dating apps and social media platforms to obtain intimate content initially, then threaten distribution unless financial or other demands are met.
Extortion Under Colour of Office
Section 249O defines “public duty” as a power, authority, duty or function conferred on a person as the holder of a public office or that a person holds themselves out as having as the holder of a public office.
Extortion is of two types: extortion by threats or fear and extortion under colour of office. Public officials using their position or authority to compel payment or action they are not legally entitled to receive commit this aggravated form of extortion. A council inspector who suggests development approval would be “smoother” with a personal payment could face colour of office extortion charges.
Penalties for Extortion in NSW
Blackmail is a crime which carries a maximum penalty of 10 years imprisonment. The maximum penalty increases to 14 years imprisonment where the person threatens to commit a serious indictable offence, such as robbery or assault resulting in physical harm and injuries.
The key element of a blackmail charge is the threat to reveal information unless something of value is paid to the offender. Extortion and blackmail are serious crimes that can result in heavy fines and imprisonment.
In Queensland, extortion is prosecuted under a discrete offence in Section 415 of the Criminal Code, which prescribes a maximum penalty of 14 years imprisonment. In Queensland, extortion can carry life imprisonment for severe threats involving organised crime.
Federal Extortion Charges
The federal extortion statute in the United States is the Hobbs Act, enacted in 1946. It prohibits the use of threats, intimidation, or coercion to obtain property, money, or other benefits from another person. The Hobbs Act applies to both individuals and organisations and is used to prosecute cases involving organised crime, public corruption, and labour racketeering.
In Australia, the counterpart to the federal extortion statute is the Criminal Code Act 1995 (Cth). This Act prohibits the use of threats or coercion to obtain property, services or any other benefit from another person. Federal offences include unwarranted demands by Commonwealth public officials under Sections 139.1 and 139.2, which carry maximum penalties of 12 years imprisonment.
Defences to Extortion & Blackmail Charges
If you are facing a charge of blackmail, experienced criminal lawyers can help by preparing legal defences to the offence. Strong defences against blackmail charges exist depending on the circumstances.
Reasonable Grounds Defence
A strong defence against blackmail charges can argue that the accused had reasonable grounds for making the demand. It is possible to defend against extortion charges by providing evidence that the accused believed their demand was warranted.
The demand is not unwarranted if the accused believed they had reasonable grounds for making it and reasonably believed the menaces were a proper means of reinforcing the demand. This defence is successfully used in civil debt collection cases where creditors threaten legal action to recover legitimate debts. A landlord demanding overdue rent with the threat of eviction proceedings through proper legal channels may avoid conviction using this defence.
No Menaces Established
The Crown must prove beyond reasonable doubt that a demand was made and that it was accompanied by a threat or force in extortion cases. If the threat was insufficient to influence a person of normal stability or did not actually influence the particular victim (and the accused was unaware of specific vulnerability), menaces may not be established.
Merely stating legal rights or potential consequences without coercive elements is insufficient to constitute menaces. Informing someone “I will report this to the police” differs legally from “Pay me or I will report you.”
Lack of Intent
If the prosecution cannot prove the accused intended to obtain a gain for themselves or another, or intended to cause loss to the victim, the charge may fail. Intent is assessed at the time the demand was made, not based on subsequent actions.
How to Prove Extortion in Court
The Crown must prove beyond reasonable doubt that an individual made a demand accompanied by a threat to secure a conviction for extortion or blackmail. Evidence required includes:
Victim testimony detailing the demand, specific threats made, and circumstances of the extortion. Credibility is central to the Crown case.
Electronic evidence provides objective proof and includes WhatsApp messages, emails, SMS, social media posts, and call recordings. Audio recordings of phone calls where threats were issued and CCTV footage showing meetings where threats were made strengthen prosecution cases significantly.
Witness testimony corroborating the victim’s account or observing threatening conduct provides additional support for the prosecution case.
Documentary evidence such as written letters, notes, legal notices containing threats must be preserved and presented to the court.
Can Extortion Occur Without Words?
Yes. Blackmail can occur through actions, such as body language. Courts have ruled that a threat can be expressed or implied. It can be made without the use of words, but implied through body language or gestures.
In Austin v The Queen (1989) 166 CLR 669, the Court ruled that the demand need not be communicated to the “target”, but there must be an intention to communicate it to the “target”, and in circumstances suitable to achieve that end. The behaviour in making the demand is the essence of the offence.
What to Do If You’re Being Extorted
Immediate Steps
If you are being targeted by extortion, the best course of action is not to engage. Cease all communication with the perpetrator immediately. Continued contact can complicate evidence and escalate the situation.
Do NOT delete any messages, emails, or call logs. These constitute critical evidence for prosecution. Document everything by taking screenshots of messages or call logs, collecting information about the blackmailer, and recording when and how they contacted you.
Contact police through your local station or the Australian Signals Directorate’s ReportCyber portal for formal reporting. You can also report cyber abuse incidents to the eSafety Commissioner.
Protecting Yourself
Alert your bank immediately if financial demands have been made. Banks can freeze accounts and prevent unauthorised transactions. If you shared credit card details, block or cancel those cards immediately.
Change passwords on compromised accounts and enable two-factor authentication on all platforms. Do not open any links or attachments sent by an extortionist.
If you feel panicked or threatened, go to a nearby police station and ask for assistance. Do not comply with the scammer’s demands.
Legal Representation
Hiring a lawyer is crucial when facing charges of extortion or blackmail to ensure the best possible defence. Legal assistance is extremely valuable in cases of blackmail and extortion due to the serious nature of the charges and potential penalties.
Early legal intervention often results in charge withdrawal or reduced penalties through plea bargaining. Solicitors can assess evidence, identify available defences, and negotiate with prosecution on your behalf.
Extortion vs Robbery: Understanding the Distinction
The distinction between extortion and robbery lies in the nature of the threat. Extortion involves coercion without immediate violence, whilst robbery involves immediate bodily harm. The distinction between robbery and extortion is that robbery involves taking property against the victim’s will, whilst extortion involves consent obtained through threats.
Robbery requires physical presence and immediate taking of property. A person holding a knife and demanding a wallet commits robbery. In contrast, threatening to harm family members unless payment is made over several days constitutes extortion, as the victim technically “consents” to transfer property, albeit under duress.
Seeking Legal Advice About Extortion
Extortion and blackmail are serious crimes. Whether you are accused of blackmail or victimised by extortion, experienced criminal lawyers provide crucial guidance.
JB Solicitors has a team of experienced lawyers that can address your situation. Our team of criminal defence lawyers can provide you guidance on your legal rights and legal representation on your case. We have extensive experience with blackmail, extortion, and demanding property offences across NSW courts.
Early engagement with solicitors improves case outcomes through strategic evidence gathering and defence preparation. We can assist with bail applications, preparation of defence cases, and representation in Local, District, and Supreme Courts.
Frequently Asked Questions About Extortion
What is the difference between extortion and blackmail in Australia?
In New South Wales, there is no specific crime of “extortion.” Both extortion and blackmail are prosecuted under the same statutory provisions, primarily Section 249K of the Crimes Act 1900 (blackmail) or Section 99 (demanding property with intent). Whilst blackmail typically involves threats to disclose embarrassing information, extortion traditionally involves threats of violence or property damage. However, modern Australian law treats both offences identically with the same penalty structures.
Can you go to jail for extortion in NSW?
Yes. Blackmail carries a maximum penalty of 10 years imprisonment in NSW. The maximum penalty increases to 14 years imprisonment where the person threatens to commit a serious indictable offence, such as robbery or assault. In Queensland, severe extortion threats involving organised crime can attract life imprisonment. Courts treat extortion and blackmail as serious criminal offences warranting substantial custodial sentences.
What should I do if someone is trying to extort me?
Cease all communication with the perpetrator immediately and do not comply with their demands. Do NOT delete messages, emails, or call logs, as these constitute critical evidence. Document everything by taking screenshots and recording dates, times, and specific threats made. Contact police through your local station or ReportCyber portal, alert your bank if financial demands were made, and change passwords on compromised accounts. Consider consulting a criminal lawyer for guidance on protection orders and civil remedies.
Can I be charged with extortion if the person never paid me?
Yes. A person can be convicted of extortion or blackmail even if the benefit or demand was never actually obtained. The key element is the intent to obtain a gain or cause a loss at the time the demand was made. Even if the victim ignored the threats and the accused received nothing, the blackmail charge succeeds based on intent alone. The fact that no loss or gain occurred will not cause a charge of blackmail to be unsuccessful.
Is threatening to report someone to police considered extortion?
It depends on the circumstances. Merely informing someone that you will report illegal conduct to police does not constitute extortion. However, making an unwarranted demand accompanied by a threat to report someone to police can constitute blackmail. For example, “Pay me $10,000 or I will report you to police” may be blackmail, whilst “I am reporting this matter to police” is a lawful statement of intent. The key is whether the demand is unwarranted and accompanied by menaces designed to compel the person to act unwillingly.
What is sextortion and how is it different from regular blackmail?
Sextortion is sexual blackmail where a person threatens to distribute, publicise or post intimate images unless demands are met. Sextortion is governed under separate statutory provisions (Sections 91P-91R of the Crimes Act 1900) and carries penalties ranging from three to six years imprisonment. Whilst regular blackmail is prosecuted under Section 249K with maximum penalties of 10-14 years, sextortion has its own distinct legal framework reflecting the specific nature of image-based sexual abuse. Perpetrators often exploit dating apps and social media to obtain intimate content initially.
How does the law define “menaces” in extortion cases?
“Menaces” includes any express or implied threat of action detrimental or unpleasant to another person (Section 249M). A threatened action constitutes a menace if it would cause an individual of normal stability and courage to act unwillingly, or if it would cause the particular victim to act unwillingly and the accused was aware of that person’s specific vulnerability. Menaces need not involve physical violence; threats to damage reputation, relationships, property, or financial interests suffice. The test focuses on whether the threat would influence an ordinary person’s mind to unwillingly comply with the demand.
Can I defend against blackmail charges by proving I had reasonable grounds for my demand?
Yes. A strong defence against blackmail charges can argue that the accused had reasonable grounds for making the demand. Under Section 249L, a demand is not “unwarranted” if the accused believed they had reasonable grounds for making it AND reasonably believed the menaces were a proper means of reinforcing the demand. This defence is successfully used in debt collection cases where creditors threaten legal action to recover legitimate debts. However, both elements must be established: reasonable grounds for the demand itself and reasonable belief that the threat method was proper.
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Do you have any more queries regarding extortion or blackmail? Are you facing charges or being victimised by extortion? Contact us today for a confidential consultation with our experienced criminal defence lawyers.
