Page:R v McBride (No 4).pdf/42

 Mr McBride's concerns were still on foot and after he had been told by the AFP that no criminal offences were disclosed by his complaints. It did not involve any subsequent publications by the journalists because, for undisclosed reasons, they did not see fit to publish stories based upon the material. The harm and risk of harm are as described at [122]–[126] above.

197․ I do not accept the submission made on behalf of Mr McBride that breach of trust cannot be an aggravating feature of the offence because this feature of the offending is necessarily engaged by the fact that it is an element of the offence that the person be a member of the Defence Force or engaged under the Public Service Act 1999 (Cth). While the requirement to be a member of the ADF or a public servant means that the relationship of any charged person to the Commonwealth will necessarily involve duties of loyalty and confidentiality, there is a difference between someone in a junior position with limited access to information and someone in a more senior and trusted position with access to more sensitive information. Mr McBride was plainly in the latter category, having trusted access to very sensitive information. That is clearly an aggravating feature of his offending.

198․ I assess count 2 as being in the mid-range of objective seriousness for an offence against s 73A.

199․ Count 3 relates to the disclosure to Mr Oakes. Once again it involved disclosures of substantial volumes of documents, many of which bore the SECRET classification. It involved disclosure of more documents than had been disclosed to Mr Masters or Mr Clark. The documents disclosed included the Supporting Documents and some additional documents that Mr McBride had collected since he first made the complaint to the IGADF. The correlation between the documents in Mr McBride's possession and those listed in Mr Oakes' spreadsheets is described at [98(a)] above. It is not possible to determine beyond reasonable doubt the number of additional documents because of the possibility that Mr Oakes obtained them from another source. There were 86 Supporting Documents, most of which were classified SECRET. The disclosure occurred after Mr McBride knew the outcome of the IGADF process, of which there was no criticism by Mr McBride at the time or in these proceedings. Publication did occur as a result of the disclosure. The intent of those stories was the opposite of that which the Mr McBride had hoped to be published. The harm and risk of harm is described at [122]–[126] above. 200․ It too is an offence in the mid-range of objective seriousness, even though it involved publication to only one person.