Extortion – Threat to Kill and Threat to Damage Property

‘Extortion’ is an offence involving a demand that is coupled with either a threat to destroy property or a threat to kill a person. There are 2 separate offences, depending on the specific threat made.  In this article, we discuss each charge in detail, the possible penalties and defences to an Extortion charge.

Extortion – Threat to Kill

It is an offence to make a demand of another individual that is coupled with a threat to either:

• Kill, inflict an injury on a person; or
• Endanger the life of another person.[1]

Elements that the Police must establish

The Police must establish beyond reasonable doubt that you:

1. Made a demand of another person;
2. The demand was accompanied by a threat to kill, inflict injury or endanger the life of another; and
3. It was your intention that the person would fear that the threat would be carried out unless they complied with the demand.

The manner in which the demand is made, or whether the demand is explicit or not is not material to the case.[2] The test is whether a reasonable person would have understood that a demand had been made in the circumstances. The demand can be made without a view to gain or cause loss, which differs from the offence of blackmail.

Secondly, the demand must feature a threat to one’s life. It is not sufficient that the threat carries a risk of injury. The threat can be made either via words, conduct or a combination.[3] For example, a person can make a threat via an email or text message and therefore does not need to be received at the same time it is made.

Thirdly, the Police must prove that you intended for the person to fear that the threat would be carried out.[4] Your intention to actually carry out the threat or that the threat was successful not relevant.

Possible Penalties

The maximum penalty is 15 years imprisonment.[5] However, where a single charge and it is a first offence, the Court is unlikely to Order the maximum period of imprisonment.  Depending on the individual circumstances, there are a range of penalties available to the Court.  It is imperative that you seek legal advice as soon as practicable if you have been charged with breaching an Intervention Order.

Extortion – Threat to Destroy Property

It is an offence to make a demand of another person, accompanied by threat to destroy or endanger the safety of a building, structure, motor vehicle, aircraft, bridge, mine, vessel, railway engine or carriage.[6]

Elements that the Police must establish

The Police must establish beyond reasonable doubt that you:

1. Made a demand of another person;
2. The demand was accompanied by a threat to destroy or endanger property; and
3. It was your intention that the person would fear the threat would be carried out unless they complied with the demand.

Elements 1 and 3 are the same as for Extortion with a threat to kill.

In order to prove the second element, the Prosecution must prove beyond reasonable doubt that you threatened to damage or destroy a specific type of property (e.g. made a threat to destroy a particular person’s house).

Possible Penalties

The maximum penalty is 10 years imprisonment.[7] However, where a single charge and it is a first offence, the Court is unlikely to Order the maximum period of imprisonment.  Depending on the individual circumstances, there are a range of penalties available to the Court.  It is imperative that you seek legal advice as soon as practicable if you have been charged with breaching an Intervention Order.

Defences to both offences

If any element cannot be satisfied, the offence cannot be established. For example, it is a defence to argue that you did not intend to threaten to kill. Your relationship with the person may also be relevant in this instance. For example, intent may not be established if you had no intention to progress past words made in the heat of an argument.[8]

If it is alleged that you threatened property, the specific type of property threatened must be either a building, structure, motor vehicle, aircraft, bridge, mine, vessel, railway engine or carriage to satisfy this element. For example, if you threatened to destroy a mobile telephone, this element would not be satisfied and the offence would not be established.

These examples are not exhaustive. 

You may also have a defence of reasonable mistake or a factual dispute relating to the charge.

It is imperative that you seek legal advice as soon as practicable if you have been charged with breaching an Intervention Order so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

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[1] Crimes Act 1958 (Vic) s 27.
[2] R v Clear [1968] 1 QB 670.
[3] R v Rich Vic CA 17/12/1997.
[4] R v Dixon-Jenkins (1985) 14 A Crim R 372.
[5] Crimes Act 1958 (Vic) s 27.
[6] Crimes Act 1958 (Vic) s 28.
[7] Crimes Act 1958 (Vic) s 28.
[8] Barbaro v Quilty [1999] ACTSC 119.