Page:R v McBride (No 4).pdf/31

 Defendant's submissions on issues of fact

150․ At the sentencing hearing, counsel for Mr McBride submitted that five findings of fact, favourable to Mr McBride, should be made for the purposes of determining the appropriate sentence. They were as follows:


 * (a) prior to the offending, during the period of conduct constituting the offending and to this day, Mr McBride was and is a man of exemplary character;


 * (b) Mr McBride's motivation in engaging in the offending conduct was honourable in that he honestly believed that there was misconduct within the ADF with respect to the conduct of the Defence Force investigations of Special Forces soldiers in 2013;


 * (c) Mr McBride honestly believed at the time he did all of the conduct that was the subject of the offences, that he was not committing any criminal offence;


 * (d) prior to and during the period that he engaged in the conduct of taking the copies of the documents home and then passing some of them on to journalists, he suffered from a number of mental disorders which materially contributed to his offending; and


 * (e) the level of harm or the risk of harm from Mr McBride's offending was low.

151․ These matters include matters going to the objective seriousness of the offending, as well as the subjective circumstances of the offender. They will be considered in the manner and order that the arguments were presented.

Exemplary good character

152․ Counsel for Mr McBride submitted that the court should find that, prior to the offending, during the period of conduct constituting the offending and to this day, Mr McBride was and is a man of exemplary character. He went as far as to say that Mr McBride's character was unusual insofar as it involved "adherence to the highest ethical and moral standards of honesty, duty, courage, honour and passion for justice".

153․ He relied upon the terms of performance appraisals relating to the period of his service as a full-time Army officer between March 2012 and September 2014.

154․ In August 2012, Mr McBride was recorded as being "a well respected specialist officer" and a strong contender for advancement to Lieutenant Colonel in 2013.

155․ In February 2013, his assessor was "thoroughly impressed with his performance" as acting Command Legal Officer at the Special Operations Command. He continued to be a strong contender for promotion to Lieutenant Colonel.