hand, it must be recognised that the very high penalties available under the section must accommodate extremely serious disclosures in grave circumstances of a threat to the Australian nation.
242․ The contention on behalf of Mr McBride was that, if a custodial penalty was to be imposed, it should be of a length which could be served by an intensive correction order. On the other hand, the submission put by the Crown was that a custodial sentence requiring full-time imprisonment should be imposed along with a non-parole period.
243․ The starting point must be consideration of whether or not the threshold in s 17A of the Crimes Act has been passed. I am satisfied that the seriousness of the offending is such that, having considered the other available alternatives, no sentence other than a sentence of imprisonment is appropriate. I do not consider that a sentence other than imprisonment would appropriately satisfy the purposes of sentencing.
244․ So far as individual sentences are concerned, having incorporated a 10 percent reduction on account of the plea of guilty (referred to at [203] above) the appropriate sentences are as follows:
- (a) Count 2: a sentence of 34 months' imprisonment;
- (b) Count 3: a sentence of 34 months' imprisonment (having taken into account the s 16BA offence); and
- (c) Count 1: a sentence of 27 months' imprisonment.
245․ The sentences on count 2 and count 3 are the same, notwithstanding that count 2 involved disclosure to two different journalists, because the disclosure to Mr Oakes involved the disclosure of additional documents.
246․ It is next necessary to consider the structure of the sentence, which includes consideration of the issue of totality. Notwithstanding the submissions made on behalf of Mr McBride, I do not consider that this is a case in which wholly concurrent sentences would be appropriate. It is not a case where the criminality of one offence was sufficiently comprised within the criminality of another offence so as to warrant making them wholly concurrent: cf Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [62]. Rather, while the offences were related to some extent, each involved additional criminality beyond the others. Therefore, while there is room for a significant degree of concurrency, there must also be some cumulation. Count 2 will be imposed first. Count 3 will be cumulative as to 17 months, but otherwise concurrent. Count 1 will be cumulative as to 17 months upon count 3, but otherwise concurrent. This gives an aggregate sentence of imprisonment of 68 months, or five years and eight months.
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