Is Blackmail Illegal?

Elements of blackmail in Victoria

The prosecution must prove five elements, beyond reasonable doubt, for a jury to find an accused person guilty of blackmail under section 87 of the Crimes Act 1958. An accused person commits blackmail if:

1. The accused made a demand;
2. The demand was made with an view to gain for the accused, or intent to cause loss to another;
3. The demand was made with menaces;
4. The demand was unwarranted; and
5. The accused intended to make an unwarranted demand with menaces.

(1) Made a demand

The first element is whether the accused made a demand. It is for the jury to determine whether a demand was made. The test is whether a reasonable person would consider that a demand was made in the circumstances (R v Collister (1955) 39 Cr App R 100).

The demand may be implicit or explicit (R v Clear [1968] 1 QB 670), and the accused’s demeanour and surrounding circumstances at the time of the alleged demand are relevant considerations.

For example, a mere request may be sufficient to constitute a demand if it is backed up by a threat (eg R v Lambert [2010] 1 Cr App R 21).

(2) Intention to gain or cause loss

The second element is that the accused made the demand with a “view to gain” for himself or herself or “with intent to cause loss to another” person (s87 of the Crimes Act 1958).

The intended gain or loss only extends to gains or losses in money or other property, whether temporarily or permanently, and it is not necessary that an actual gain or loss occurred (s71 of the Crimes Act 1958).

Demands for custody of a child, sexual intercourse or the withholding of evidence do not satisfy the second element.

This element will be satisfied if, for example, the accused demands payment of a debt owed, as the realisation of a debt involves obtaining something (i.e. cash) one does not have (R v Lawrence (1973) 57 Cr App R 64).

(3) Demand with menaces

The legal terms “with menaces” has been defined as serious or significant threats, involving intimidation (Luk v Commissioner of Police), and include express or implied threats of any detrimental or unpleasant action to another person (R v Collister).

To constitute menaces, a threat must be sufficient to influence an ordinary person of normal stability and courage to comply with the demand (R v Clear). However, threats that may not otherwise amount to menaces may be made sufficiently clear due to surrounding conduct.

Therefore, the test is not whether the person threatened was intimidated but whether an ordinary person in the circumstances would have been intimated.

Courts have considered that the following amount to express or implied demands with menaces:

• Threats to steal property (Director of Public Prosecutions v Kuo)
• Threats to reveal information to damage a corporation’s share price (R v Boyle [1914] 3 KB 339)
• Threats to cause physical harm to a third person public (R v Collister)
• Threats to accuse a person of a crime (R v Jessen)
• Threats to reveal criminal conduct to the police (R v Jessen)

(4) Unwarranted demand

The demand is unwarranted unless the accused believes that:

• the accused had reasonable grounds for the demand; and
• the use of menaces was a proper means of reinforcing the demand.

Therefore, whether the demand was warranted depends on the subjective state of mind of the accused. It is not sufficient to prove that the accused lacked reasonable grounds for making the demand (see Murdoch v R).

If the accused knew or suspected that the act threatened was illegal, the accused cannot have believed that the accused had “reasonable grounds” of that the actions were a “proper means” for reinforcing the demand. This is the case even if the accused believed the actions were justified (R v Harvey (1981) 72 Cr App R 139).

(5) Intended to make the threat

The final element is that the accused intended to make an unwarranted demand with menaces (or threat). This element requires proof that the accused intended to make an express or implied threat and that the recipient would act unwillingly in response to the threat (Petch v The Queen).

Penalties for blackmail in Victoria

Blackmail is a serious indictable offence with a maximum penalty of 15 years imprisonment or 1800 penalty units (section 87).

Blackmail is deemed a level 4 penalty offence, with level 1 being the worst penalty available and level 12 being the least severe penalty (s109 of the Sentencing Act 1991).

Maximum penalties are reserved for those with pages of criminal history and those that commit the worst cases, such as if an offence is especially cruel, carefully planned, or motivated by prejudice and hatred. Just because the maximum penalty is 15 years, does not mean that this is the penalty that someone will receive, it just provides a range.

Sentencing considerations

The severity of threatening offences, such as blackmail, often depends on the nature of the threat. Offences involving bomb threats, for example, are particularly serious and warrant heavy sentences (R v McHardie).

Many factors must be considered when sentencing a person in Victoria, including the nature and gravity of the offending conduct.

See here for further information about sentencing outcomes.

Notable penalties for recent blackmail cases

Kamal v The Queen is a notable case in which the offender was sentenced to 3 years’ imprisonment with a non-parole period of 2 years, following a guilty plea. The offender’s moral culpability was considered of the highest order, where her intentional exploitation of the victims’ suffering and persistent demands were “so reprehensible as to be amoral”. Had the accused not pleaded guilty, the sentencing judge indicated a term of imprisonment of 4.5 years with a minimum term of 3.5 years.

In Aitkin v The Queen, the offender was sentenced to 4 years’ imprisonment with a non-parole period of 2 years and 9 months on appeal. The focus of sentencing in this case was the menaces rather than the demand, and the duration and persistence of offending, which demonstrated careful planning.

Outcomes of recent blackmail

Outcomes of two recent blackmail matters at our firm:

• A client possessed naked pictures of an ex-partner and threatened to publish the naked photos unless the ex-partner continued to sleep with him. Our client had no prior history, was otherwise of good character and the threat was not persistent. Upon sentencing in the County Court, our client received an 18 month community corrections order, with conviction.
• A client had recently split up with his partner, keeping his ex-partner’s cat. Our client refused to return the pet unless his ex-partner paid money which he said was owing to him. At the County Court, our client received a monetary fine, without conviction.

Note, distributing or threatening to distribute intimate photos without consent also constitutes an an offence under sections 53S or 53T of the Crimes Act 1958. For conduct occurring prior to 30 July 2023, the relevant legislation for these offences falls under the Summary Offences Act 1966.

The role of legal representation in penalty reduction

An experienced criminal defence lawyer can influence the final penalty for a person charged with blackmail in several ways, including:

• Liaising with law enforcement (the informant, police prosecutor, OPP or the DPP depending on where the case is listed), potentially negotiating a favourable outcome, such as withdrawal of the charges.
• Negotiating a plea deal with the prosecutor, where the accused agrees to plead guilty in exchange for a lesser charge.
• Fighting the charge at trial and, potentially, being found not guilty if the elements of the offence are not proved beyond a reasonable doubt, or if a viable defence is established.
• Negotiating the matter to a guilty plea but with an agreed summary of facts that is more favourable to the accused. For example, a summary of agreed facts that are less less aggravating may avoid a term of imprisonment.

Defences to a charge of blackmail

Possible defences to the the crime of blackmail include that:

• the accused believed there were reasonable grounds for making the demand.
• the accused believed that the use of menaces was proper to reinforce the demand.
• the accused had no intention to threaten the other person.

Historical context

Blackmail has been part of legal systems around the world for centuries, tracing back to 16th century Scotland. The definition has evolved over time from primarily being associated with threats to reveal damaging information, to encompassing any unwarranted demand with threats intended to gain or cause a loss.

In Victoria, the definition of blackmail is based on s21 of the English Theft Act 1968. Victoria followed the English lead with amendments to address anomalies in the laws application and widen the scope of the old law, which was restricted to an actual loss in relation to a valuable security, as opposed to an intended loss.

Changes to blackmail penalties

In 2017, the maximum penalty for blackmail was increased to 15 years. Prior to 2017, the offence carried a maximum penalty of 12.5 years imprisonment, before it was increased to 15 years.

Key statistics in Victoria

From 1 July 2016 to 30 June 2021, the higher courts sentenced 80 charges of blackmail, with terms of imprisonment ranging from 0.05 – 3.5 years.

Outcomes for charges of blackmail during this period were as follows:

• 63.8% received imprisonment
• 31.2% received a Community Corrections Order
• 1.2% received a financial penalty
• 3.8% received an adjourned undertaking (or good behaviour bond)

Reading Between the Numbers

With the representation and support of a criminal defence lawyer, experienced in all aspects of the criminal law, a jail sentence may be avoided, even if found guilty. 35% of people that pleaded guilty to blackmail charges avoided immediate imprisonment.

It is important to remember, the facts surrounding the offence, any previous criminal history and matters personal to the accused, are all important factors to be considered when interpreting sentencing statistics.

What to expect if you are charged with blackmail

The range of penalties, aggravating and potentially mitigating factors in relation to an indictable offence mean that it’s crucial to seek legal advice as early as possible.

If you have been charged, or if the Victoria Police want to interview you regarding blackmail, it is vital that you obtain legal advice as soon as possible, before participating in the record of interview.

Whether to make comment on your record of interview requires careful consideration and has serious implications. This choice should only be made after seeking advice and support from a practitioner who specialises in blackmail offences.

What you say during a record of interview can be used against you in court and could be the difference between being found guilty or not guilty.

See here for more information about police recorded interviews.