MK Law

Blackmail Offence Lawyer

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What is Blackmail?

Blackmail has been a part of our Commonwealth legal system since the 16th century. The definition was previously founded on threats to disclose harmful information, but has now been broadened and includes unnecessary demand intended for personal gain or loss to another person. Blackmail refers to a request being made to a person that is unjustified and threatening for the purposes of personal gain or causing loss to another person. This offence is provided for pursuant to section 87 Crimes Act 1958 (CA). 

What to Consider/Needs to be Established?

To determine whether a person is guilty of the offence of blackmail, it is important to consider what elements constitutes blackmail . In other words, can the Prosecution establish beyond reasonable doubt all elements of the offence?

  1. You made a demand to another person  
    • The demand can be implicit or explicit 
    • A mere request has been found to be a demand (if a threat follows) 
    • The jury has the onus of proving this (the test is whether a reasonable person would believe a demand was made) by considering: 
      • The defendant’s demeanour; and 
      • A range of surrounding circumstances at the time of the demand 
  2. The demand was made with an intent for personal gain or to cause loss to another person 
    • The personal gain or loss needs to either temporarily or permanently relate to money or other property (this includes demands for payment of outstanding debt), however excludes demands for custody of a child, sexual intercourse or withholding evidence)   
    • The gain or loss need not to have occurred (s 71 CA) 
  3. The demand was made with menaces (significant/serious/detrimental/unpleasant threats involving intimidation – even if not clear, the surrounding conduct makes it clear threats were made) 
    • The test is whether the threats would make an ordinary person of normal stability and courage in the circumstances to be intimidated and agree to the demand 
    • The demand/threat can be implied or express  
      • To steal property 
      • To reveal information to damage a business’ share price 
      • Threats to cause physical harm to a third person in public 
      • Threats to accuse a person of a crime 
      • Threats to reveal criminal conduct to the police  
  4. The demand was unwarranted/unreasonable  
    • The demand is not unwarranted merely because: 
      • The defendant’s subjective state shows they had reasonable grounds to know/suspect the demand (it is insufficient to establish the defendant lacked reasonable grounds for the demand) 
      • The menaces were a sound way to reinforce the demand. If the defendant knew/suspected the act was illegal, they do not have reasonable grounds for believing the actions were proper means of reinforcing the demand even if they believed the actions were justifiable in the circumstances 
  5. You intended to make an unwarranted demand with menaces/threat 
    • The demand/threat can be implied or express 
    • The victim must act unwillingly in response to the demand/threat 

 

Defences

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There are a number of defences you may be able to rely on to argue your innocence, including:

  • You believed reasonable grounds were available to make the demand 
  • You believed using menaces was proper in the circumstances to reinforce the demand 
  • You did not intend to threaten the person 
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Penalty

Penalties

Penalty

Blackmail is a serious indictable offence, with most matters  heard before the County Court of Victoria. 

If you are found guilty of the blackmail offence, the following penalties will be imposed (depending on the facts of the matter):  

  • Imprisonment (maximum 15 years – prior to 2017 it was 12.5 years)
  • 1800 penalty units 
 

Prior to 2017, the penalties were slightly different. If you have been charge with an offence of blackmail, please contact u\our office as soon as possible to discuss what potential penalties may apply.

Between 2016 and 2021, 80 blackmail charges reached the Victorian courts. Of those, the most common penalty was  imprisonment (63.8%), , followed by community correction (31.2%), financial penalty(1.2%) or adjourned undertakings (good behaviour bond) (3.8%).   

Considerations When Sentencing

Courts consider a range of factors when determining the most appropriate penalty for the defendant. The nature/gravity of the offending conduct, facts surrounding the offence like personal matters and criminal history of the defendant will always be considered.

Persons with a criminal history and/or who commit the cruellest, carefully planned or motivated by hate and bias blackmail cases will attract the harshest penalties.

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Contact Us

If you have been charged with blackmail or if Victoria police want to interview you in connection to this alleged offence, our team of expert criminal lawyers are available for free legal advice 24/7 on 1800 130 120.

The number of penalties and aggravating or mitigating factors for this serious offence means it is critical to seek legal advice from us as soon as possible. For important legal advice about what to say in a police record of interview, contact our office prior to attending the interview, as any recorded evidence can be used against you at a later stage.

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