to say what offences were committed or to describe the circumstances of the offending. It is therefore not possible to determine the maximum penalties for the offences which were committed and hence how the seriousness of the offences was assessed against that yardstick. The aggregate sentence of imprisonment was two years and seven months. The motivation for the offending was anger over what the offender considered to be unfair treatment. The risk of harm arising from the conduct involved the possibility of "critical harm to Australia's national security" and "quite grave" risks to individuals.
222․ The most obvious point to be made about these cases is that all except for Lappas and possibly Johns involve a maximum penalty of two years' imprisonment, and this has clear consequences for the length of the sentences ultimately imposed. Lappas did involve the espionage offence, which carried a maximum penalty of seven years' imprisonment and contained within it a purposive element not required as part of the present charges. Even the maximum penalty that applied in Lappas is very different from the unlimited maximum penalty available in the present case. Kessing involved an offender who was motivated by a sense of injustice and frustration in relation to the issue which he disclosed, but there appears to have been some evidence that his concerns were ultimately found to have substance as evidenced by the subsequent recommendations for increased security. None of the cases involved such substantial volumes of SECRET material as involved in the present case.
Consideration
223․ In sentencing Mr McBride, it must be recognised that the unlimited term of imprisonment that may be imposed for offending against s 73A has to accommodate circumstances much more extreme than those that exist in the present case. It must accommodate offending which involves the disclosure of extremely damaging naval, military or air force information in circumstances, such as war, where Australia is under immediate military threat. Recognition of that fact means that, notwithstanding that the objective seriousness of the offending can be characterised as in the mid-range, any sentence imposed on Mr McBride must accommodate the need for much more severe sentences in other cases committed in more extreme circumstances.
224․ The nature and circumstances of the offences (s 16A(2)(a)) and the manner in which it involved a course of conduct (s 16A(2)(c)) have been described above.
225․ I will take into account the charge on the s 16BA schedule in relation to count 3, in accordance with the principles outlined in R v Campbell [2010] ACTCA 20 at [47]–[48] (s 16A(2)(b)).
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