Page:R v McBride (No 4).pdf/50

 condition if he is incarcerated, I have taken into account the potential that, by reason of his mental health conditions, particularly the PTSD, a sentence of imprisonment may be more burdensome than it would otherwise be for a person without that condition.

237․ Section 16A(2)(ma) requires consideration of whether the person's standing in the community was used by the person to aid in the commission of the offence. This was the subject of competing submissions by the parties. I do not think that this is the sort of case in which that specific consideration has effect. It was the position of trust in which he was placed as a result of being an officer in the Army that made it possible for him to commit the offences. The grave breach of trust involved in the offending must be taken into account. However, that is a different consideration to the specific consideration in paragraph (ma), which refers to "standing in the community" as a means of engaging in other offending.

238․ So far as his prospects of rehabilitation are concerned (s 16A(2)(n)), that is difficult to assess in circumstances where Mr McBride has demonstrated no remorse and, as a consequence, has not recognised the wrongfulness of his own conduct. So far as this type of offending is concerned, his prospects of rehabilitation must be considered to be guarded because of his apparently unwavering belief in his own correctness and his willingness to commit serious breaches of the criminal law.

239․ The imposition of a custodial sentence would have an adverse effect upon his family (s 16A(2)(p)), most particularly his two daughters, although they are beyond an age where they would be most seriously affected by incarceration of their father. The imposition of an intensive correction order would require him to live in the ACT, away from his ex-wife and daughters. Such a disposition would be likely to have a lesser impact upon him and his family.

240․ The sentences must also recognise the state of uncertainty in which the offender has lived since the charges were laid in September 2018 and March 2019. The delay in bringing the matter to trial was a product of the complexities of dealing with confidential information, the COVID-19 pandemic and the making, by Mr McBride, of the application under the PID Act which he subsequently abandoned.

241․ Having regard to the fact that no maximum penalty is specified for an offence under s 73A, it is necessary for the court to formulate a sentence in relation to each of counts 2 and 3 which appropriately reflects the purposes of sentencing and is of a severity appropriate in all the circumstances of the offence. As pointed out earlier in these reasons, the unlimited term of imprisonment available for a contravention of s 73A cannot be characterised as a relic of the past (cf the quote in Markarian at [30]). On the other