Page:R v McBride (No 4).pdf/48

 226․ The extent to which there has been harm arising from the offences (s 16A(2)(e)) is also described above.

227․ As pointed out earlier, the offender has shown no contrition for his offending (s 16A(2)(f)).

228․ I have taken into account the fact of his guilty plea, its timing and the degree to which that has resulted in benefit to the community through the avoidance of the need for a trial (s 16A(2)(g)). I have also addressed above the extent of his cooperation with law enforcement agencies through his participation in the two interviews with police (s 16A(2)(h)).

229․ It is necessary to give consideration to the need for both specific and general deterrence (ss 16A(2)(j) and (ja)). General deterrence is clearly of very significant importance in the circumstances of this case. The system for security classification and the protection of material from disclosure is fundamental to the operation of government institutions. That is even more the case when dealing with military information. It is of greater significance when that information involves active conflicts such as that with which the Special Forces were concerned in Afghanistan.

230․ Undoubtedly, a large organisation has the capacity to generate tensions and frustrations for those operating within it. That is particularly so when it is a disciplined force and that force is involved in life or death military conflicts. However, the Army was the institution that Mr McBride chose to serve. That comes with it both privileges and constraints, particularly when he was not only a soldier but also a lawyer. Mr McBride was not prepared to operate within the constraints of the organisation which he had taken an oath to serve. I do not accept his statements that somehow, either as a lawyer or a soldier, he had an obligation or duty to do what he did. He very clearly breached his duty as both. His statements to the contrary made to police did not reflect reality.

231․ Notwithstanding the availability of other legitimate means by which he could raise his concerns, he decided that he knew best and that he should disregard his legal obligations in order to pursue his own view of how the ADF should be managed. It is very important to deter others from such conduct. Self‑confident people with strong opinions who are subject to legal duties not to disclose information must be deterred from making disclosures in order to advance their own opinions. They must know that breaching their legal obligations to maintain the confidentiality which they have undertaken to protect will be met by significant punishment. That is particularly so when that information is secret and its disclosure has the potential to harm Australia's national security.

232․ Recognising the importance of general deterrence, its significance (and the significance of some of the other purposes of sentencing) may be lessened where a disclosure is