By: Andrew Anderson
Published: 12 January 2021
Published: 12 January 2021
By: Andrew Anderson
Extortion – Queensland
Extortion is a serious criminal offence, which may be punishable by actual imprisonment. While it is most commonly charged when threats of violence are used to blackmail a person to hand over property, other forms of coercion or intimidation can give rise to the offence of extortion in Queensland.
Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about the offence of extortion in Queensland.
If you face an extortion charge, contact Anderson Legal. This firm provides expert advice and representation. Andrew Anderson is a former Principal Crown Prosecutor and is recognised as a leading criminal defence lawyer in Queensland. He has substantial experience in assisting individuals with charges of this nature.
- Extortion – Queensland
- Queensland Law
- Possible Defences
- Penalties & Sentences
- Significant Cases
Section 415 Criminal Code (Qld)
Section 415 of the Criminal Code makes extortion an offence in Queensland. The law states:
(1) A person (the demander) who, without reasonable cause, makes a demand—
(a) with intent to—
(i) gain a benefit for any person (whether or not the demander); or
(ii) cause a detriment to any person other than the demander; and
(b) with a threat to cause a detriment to any person other than the demander; commits a crime.
(a) if carrying out the threat causes, or would be likely to cause, serious personal injury to a person other than the offender—life imprisonment; or
(b) if carrying out the threat causes, or would be likely to cause, substantial economic loss in an industrial or commercial activity conducted by a person or entity other than the offender (whether the activity is conducted by a public authority or as a private enterprise)—life imprisonment; or
(c) otherwise—14 years imprisonment.
(1A) The Penalties and Sentences Act 1992, section 161Q also states a circumstance of aggravation for an offence against this section.
(2) It is immaterial that—
(a) the demand or threat is made in a way ordinarily used to inform the public rather than a particular person; or
(b) the threat does not specify the detriment to be caused; or
(c) the threat does not specify the person to whom the detriment is to be caused or specifies this in a general way; or
Example— a threat to cause a detriment to the public or any members of the public
(d) the detriment is to be caused by someone other than the demander.
(3) A reference to making a demand includes causing someone to receive a demand.
(4) A reference to a threat to cause a detriment to any person other than the demander includes a statement that gives rise to a threat of detriment to the other person.
(5) A prosecution for an offence in which it is intended to rely on a circumstance of aggravation mentioned in paragraph (a) or (b) of the penalty can not be commenced without the consent of the Attorney-General.
(5A) An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992, section 161Q may not be presented without the consent of a Crown Law Officer.
(6) In this section—
threat includes a statement that may reasonably be interpreted as a threat.
Section 161Q of the Penalties and Sentences Act 1992 refers to the ‘serious organised crime circumstance of aggravation’, which mandates a significant mandatory minimum imprisonment in addition to any other penalty. It targets people who commit an offence of assault occasioning bodily harm in association with being a participant of a criminal organisation.
For every criminal charge in Queensland, there are ‘elements’ that the prosecution must prove beyond reasonable doubt. Failure to prove just one element means the person charged must be found not guilty. Sometimes there will be an alternative offence that a person may then be found guilty of instead if proof of the primary charge fails.
There are different ways elements may be expressed, depending on the issues in a given case. However, elements the prosecution must always prove for a charge of extortion are as follows:
- The making of a demand;
- The making of a threat, with that demand, to cause a detriment;
- An intent of the demander to gain a benefit or cause a detriment; and
- The absence of reasonable cause.
The elements expressed above accord with those set out by Justice McMurdo in R v Succarieh  QCA 282 at paragraph .
For an extortion charge, any circumstances of aggravation (leading to an increase in the maximum penalty) must also be proved beyond a reasonable doubt.
In cases where multiple defendants are charged, Queensland law makes it possible for more than one person to be found guilty for the commission of an offence. For instance, a person may be found guilty if they aided or encouraged another person to do the act that constituted the extortion.
In reviewing an individual case, the work of a criminal lawyer often begins with a careful analysis of the evidence to determine the strengths and weaknesses of the prosecution case and, in particular, its ability to prove each element of the offence.
The ‘presumption of innocence’
When people think about a ‘defence’ to a charge, such as extortion, they generally thinking about what makes them ‘not guilty’ of the offence. However, it is for the prosecution to prove they are guilty – and to do so beyond a reasonable doubt. The presumption of innocence means that the defendant carries no onus of proof. What that means in practical terms is that it is for the prosecution to disprove any defences raised on the evidence.
For a charge of extortion the prosecution must prove the elements of the offence beyond reasonable doubt. However, it must also exclude all defences that may apply beyond reasonable doubt. Of course, a defendant may give or call evidence that points to their innocence. The decision to give or call evidence does not shift the onus of proof away from the prosecution.
How are defences raised on the evidence?
A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred accidentally, or a person appeared to act in self-defence. Generally speaking, the prosecution have an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.
One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence being lost or destroyed.
Common defences for ‘extortion’
In Queensland, possible defences for a charge of extortion include:
- Extraordinary emergency
- Honest claim of right
- Mistake of fact
The various ways in which a ‘extortion’ may arise and the different elements that the prosecution needs to prove means there are numerous possible defences that may arise. However, in cases of extortion, there is often a focus as to whether the particular demand or threat was made ‘with reasonable cause’, which forms part of the elements of the offence. Amongst the most important advice a lawyer can provide is whether or not a defence applies to an individual case. In some cases, multiple defences may apply. In others, no defence may be considered viable. Certain defences cannot operate together. For this reason, anybody facing a charge of extortion should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.
Penalties & Sentences
The maximum penalty for extortion is 14 years’ imprisonment. However, the maximum penalty increases to life imprisonment for convictions involving the circumstances of aggravation relating to serious personal injury or substantial economic loss.
While many offences under Queensland law do not carry mandatory minimum sentences, extortion does when a person is convicted of the following circumstances of aggravation:
- When a person is convicted of committing the offence and the serious organised crime circumstance of aggravation applies, 7 years’ imprisonment is automatically imposed cumulatively on the sentence the court decides. The 7 years’ imprisonment must be served wholly in prison, on top of whatever other penalty is set by the court.
Sentencing in Queensland
For a charge of extortion, the Penalties and Sentences Act 1992 (Qld) sets out a range of relevant sentencing considerations, including that the principle that imprisonment should be imposed as a last resort does not apply. The motivation behind extortion offences is often financial in nature and is contained in part of the law of offences relating to property. However, extortion may be treated as a violent offence in some instances due to the harm that may result. For such cases, the law states that the court must have primary regard to the following considerations:
- the risk of physical harm to any members of the community if a custodial sentence were not imposed;
- the need to protect any members of the community from that risk;
- the personal circumstances of any victim of the offence;
- the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;
- the nature or extent of the violence used, or intended to be used, in the commission of the offence;
- any disregard by the offender for the interests of public safety;
- the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;
- the antecedents, age and character of the offender;
- any remorse or lack of remorse of the offender;
- any medical, psychiatric, prison or other relevant report in relation to the offender;
- anything else about the safety of members of the community that the sentencing court considers relevant.
If the offence is classified as a ‘domestic violence offence’, then the court will treat that as an aggravating factor unless exceptional circumstances are shown. Due to the number of issues that can aggravate or mitigate the punishment imposed by a court, experience shows that the earlier a person facing a charge obtains sound advice from an experienced lawyer, the better their chance of securing the best outcome possible for their situation.
With respect to the types of penalties and sentences imposed for extortion, cases such as R v Succarieh  QCA 282 and R v Li; R v McKenzie; R v Pisasale  QCA 39 show that sentences of actual imprisonment may be imposed, particularly following a trial. However, as there is generally no minimum penalty, other penalties may result from a charge of extortion. However, in a case where a number of extortion cases were reviewed, the Court of Appeal in R v Cifuentes  QCA 566 stated the following at paragraph :
The sentences reviewed show that it is very difficult to avoid a prison sentence for extortion, and that the deterrent element is of particular importance. Other matters tending to require the imposition of substantial sentences of imprisonment, reflected in those decisions, include:
- if the offender used violence to the victim, or damaged the victim’s property;
- if the offender threatened personal violence to the victim;
- the length of time over which the demands persisted;
- the extent of planning and organisation involved in the offence;
- the sum of money demanded from the victim;
- whether, as in this case, the offender abused a position of power or trust;
- whether the offender actually extracted money from the victim;
- whether the offender threatened to cause harm to other, quite innocent, people; and
- whether the offender preyed upon the habits or proclivities of others.
Experience shows that extortion charges, particularly where one or more of the above features is concerned, significant penalties may be imposed. Although by no means inevitable, it is not uncommon that a person with no criminal history is sentenced to actual imprisonment for extortion.
The law involving extortion has involved a number of significant legal decisions over time, including in the Queensland Court of Appeal. These decisions, among others, shape the advice of lawyers who are called to represent individuals charged with extortion.
Queensland Court of Appeal
In R v Succarieh  QCA 282 an issue was raised on appeal as to whether the element of ‘without reasonable cause’ was to be assessed by reference to the demand alone, or whether any accompanying threat could also be considered. The Court of Appeal held that when a demand is made with a relevant intent and threat, both are incidents of the making of the demand. For that reason, it was stated at paragraph :
Accordingly, in my view, the scope of application of the phrase “without reasonable cause” extends to the detriment threatened in the course of making the demand. A consideration of whether there is reasonable cause for making a particular demand involves consideration of any detriment threatened in the course of making the demand. It is not limited to a consideration of whether there is reasonable cause for that which is demanded be done.
The following offences are just some of the charges that may be substituted for, or charged in addition to, a charge of extortion: