Have you been charged with ‘extortion with threat to kill’?
If you have been charged with extortion, you need to consult an experienced criminal lawyer, before appearing in Court.
In Victoria, ‘extortion with threat to kill, injure or endanger life’ is a criminal offence under section 27 of the Crimes Act 1958. This offence is liable to a maximum penalty of 15 years imprisonment.
While the offence under section 27 is titled “extortion with threat to kill”, it also includes threats to inflict injury endangering life.
See also ‘extortion with threat to destroy or endanger property‘ (s 28) and the related offence of Blackmail, which is the making of an unwarranted and menacing demand with the intention to gain for oneself or cause loss to another.
Elements of the offence
The legal definition of extortion with threat to kill, injure or endanger life is found in section 27 of the Crimes Act 1958.
The prosecution must prove three elements, beyond a reasonable doubt, for a jury to find an accused guilty of this offence.
An accused person commits extortion with threat to kill or injure if:
- The accused made a demand of another person
- The demand was accompanied by a threat to:
- Kill or injure a person other than the accused or an accomplice of the accused; or
- Commit an act that would endanger the life of a person other than the accused or an accomplice.
- The accused intended the recipient to fear the threat would be carried out unless the recipient complied with the demand.
(1) Made a demand
The first element to constitute extortion is whether the accused made a demand of an alleged victim. It is for the jury to determine whether a demand was made, and 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  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 (e.g. R v Lambert).
(2) Threat to kill, injure or endanger life
The second element is that the demand was accompanied by an express or implied threat to kill, injure or commit an act that would endanger a person’s life.
A threat can be by words or conduct, and the accused’s conduct as a whole may amount to a threat, such as by behaving in a continuously threatening or abusive manner (R v Rich Vic CA 17/12/1997).
Notably, a ‘threat to kill‘ is a separate offence under section 20 of the Crimes Act 1958 and, unlike extortion, does not involve additional elements beyond the threat itself.
A threat to cause injury may be physical or mental, temporary or permanent.
- ‘Physical injury’ includes physical harm, unconsciousness, disfigurement, substantial pain, infection with a disease and impairment of bodily function (s15).
- ‘Harm to mental health’ includes psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm (s15).
A threat to endanger life must present more than a risk of injury and must put a person at sufficient and “appreciable risk” of death (Mutemeri v Cheesman).
The prosecution must prove that a reasonable person, in the position of the accused, would realise that the conduct placed, or may have placed, a person in danger of death (see R v Nuri).
(3) Intention to cause fear
The final element is that the accused intended the recipient of the threat to fear that the threat would be carried out if they did not comply with the demand (R v Dixon-Jenkins (1985) 14 A Crim R 372).
It is irrelevant whether the accused intended to carry out the threat or whether the other person felt fear in response to the threat; it is only relevant whether the person believed they were at risk of harm.
Defences to extortion
If you have been charged with an extortion offence, you may have a valid defence, such as acting under duress or mistake of fact.
The maximum penalty
Extortion with threat to kill is liable to a maximum penalty of 15 years imprisonment (or level 4 imprisonment). However, maximum penalties are reserved for the worst cases, such as if an offence is especially cruel, carefully planned, or motivated by prejudice and hatred (see the Sentencing Advisory Council).
‘Extortion with threat to kill’, and ‘extortion with threat to destroy property’ are also subject to the automatic forfeiture scheme in which a court may be required to impose a confiscation order in addition to sentence.
Where will my case be heard?
Extortion with threat to kill cases can be heard in either the Magistrates Court, County Court or Supreme Court, depending on whether the offence is combined with other charges.
Although extortion is a serious and indictable offence, it can be heard summarily in the Magistrates’ Court per schedule 2 of the Criminal Procedure Act 2009.
What to do next?
Preparation is critical to achieve a favourable outcome in relation to any matter. Arrange a time to see an experienced criminal lawyer urgently. Don’t leave it to the last minute.
Questions to consider
There are a number of things to think about if you have been charged with this offence.
- Do you have a defence?
- If you are pleading guilty, what can you do to minimise your sentence?
- Did you make a demand of another person?
- Did you threaten to kill or endanger the life of that person, or another person, if the demand was not carried out?
- Did you intend to convince the person that your threat was real?
- Did you act alone, or are you a co-accused?
You and an experienced lawyer need careful consideration before you will be ready to advise a Court how you intend to plead.
Section 27 Extortion with threat to kill
A person who makes a demand of another person—
(a) with a threat to kill or inflict injury on a person (other than the offender or an accomplice of the offender); or
(b) with a threat in circumstances where, if the threat were carried out, the life of a person (other than the offender or an accomplice of the offender) would be endangered—
is guilty of an indictable offence.
Penalty: Level 4 imprisonment (15 years maximum).