Page:R v McBride (No 4).pdf/43

 201․ The charge to be taken into account at sentence in relation to count 3 involves the disclosure of documents on the Website. The provision creating the offence is slightly broader than s 73A of the Defence Act because it extends to any document coming into his possession which it was his duty not to disclose and is not limited to documents relating to naval, military or air force information. Nevertheless, the nature of the conduct involved is essentially the same as that for count 3, namely, disclosure of documents that should not have been disclosed. Having said that, the material that was in fact disclosed was such that it gave rise to very little risk of any prejudice to the defence, national security or international relations of Australia. It is connected with count 3 because it was this disclosure which Mr Oakes came across and that then prompted him to get in contact with Mr McBride, leading to the offence the subject of count 3.

Plea of guilty and assistance to authorities

202․ Mr McBride provided substantial assistance to authorities by making admissions about his conduct in the two interviews that he did with the AFP. His claim relating to the possible application of the PID Act, which was ultimately not pursued, had the effect of delaying the proceedings. The assistance to authorities is to be taken into account pursuant to s 16A(2)(h) of the Crimes Act.

203․ Following the rejection of the legal argument that he put forward at the commencement of his trial and the refusal of leave to appeal from that decision, he entered a plea of guilty. There is substantial utilitarian value in the plea of guilty having been entered, even though it was late. This is to be taken into account pursuant to s 16A(2)(g). A reduction on account of the plea of guilty of 10 percent appropriately reflects its utilitarian value. It is also appropriate to take his guilty plea into account in determining the manner in which any sentence of imprisonment should be served.

204․ I do not accept that this is a case where it was not reasonably possible for Mr McBride to have pleaded guilty at an earlier stage. I accept that the ruling in relation to the directions that would ultimately be given to the jury proved decisive in causing him to change his plea. The absence of a definitive ruling upon that legal issue did not preclude him from entering his plea earlier. There is no evidence that he only chose not to enter an early plea because of legal advice as to the merits of the argument to be put on that issue.

Time in custody

205․ Mr McBride has spent no time in custody prior to sentence. Therefore, no issue of backdating his sentence arises.