Amendment (Application of Criminal Code) Act 2001 (Cth). The decision to maintain s 73A as the only one of the original provisions the subject of the unlimited term of imprisonment represents a recent legislative decision recognising the ongoing significance of the offence and its penalty, and precludes characterisation of ss 73A and 73F as being relics of the Second World War.
12․ In that context, it is not possible to accept the submission made on behalf of Mr McBride that the unlimited penalty was only imposed to accommodate a smorgasbord of possible offences available under the National Security Act and that there was no intention to increase the maximum penalty for s 73A at all when the Defence Act was amended in 1941. Further, it is not possible to accept the submission that "it certainly would not be appropriate to treat the penalty as indicating a maximum penalty of life imprisonment" or that "it is inconceivable that it was intended that even serious frauds might be the subject of very lengthy terms of imprisonment". When understood in its proper context, the parliamentary intention to dramatically increase the penalty for offences including s 73A is clear. Further, given the repeal and substitution of s 73A in 2001 when the surrounding sections were repealed, there can be no doubt that s 73F applies to s 73A in accordance with its terms.
13․ Given the legislative history, it is also not possible to accept the submission made on behalf of Mr McBride that guidance as to the appropriate sentence should be obtained not by the terms of s 73F itself, but instead by reference to the penalties provided in other provisions, such as s 58 of the Defence Force Discipline Act 1982 (Cth) (two years) and s 70(1) of the Crimes Act (two years). Section 73F must be applied in accordance with its terms and not subject to qualification by the penalties provided in other legislation. While that means that the "yardstick" (in the sense described in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30]–[31]) provided by a fixed maximum penalty or by a maximum penalty of imprisonment for life are not available, an appropriate sentence that meets the requirements of s 16A of the Crimes Act must be worked out. Such a sentence must necessarily be determined in the context of general expectations as to how long people live, even in the absence of a more specific numerical yardstick provided by the legislature.
Facts
14․ The facts are set out in an Agreed Statement of Facts. The Agreed Statement of Facts contains 138 paragraphs and has four annexures totalling 108 pages. The Agreed Statement of Facts sets out in substantial detail what happened. The annexures shed light on Mr McBride's motivations for doing what he did. The following description of the
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