11 Despite there being considerable overlap in that evidence, and some overlap in my intermediate findings of fact in the course of determining whether the offences charged were proved to the criminal standard, the offences that were ultimately found proved are liable to produce different sentencing consequences given that Mr Byrne is to be sentenced for four offences that are objectively more serious than the single offence found proved against Mr Fordham.
12 That said, in the particular circumstances of this case, the multiple breaches of s 6(1) of the Act by Mr Byrne do not necessarily reflect a persistent disregard of the law on his part, or signify that his role in communicating the mobile conversation and the car conversation by the broadcast of A Current Affair on 28 and 29 May 2008 was elevated, relative to Mr Fordham, in the usual way in which the respective roles of co-offenders are assessed for sentencing purposes. Rather, the number and type of offences Mr Byrne was charged with seems to reflect the division in function between his role as a producer of A Current Affair and Mr Fordham's role as a reporter on that program. In particular, the evidence reveals little practical distinction in the degree to which they involved themselves in the preparation of the programmed segments for broadcast, or in their dealings with Mr Tolmie in the illegal recording of the car conversation, and in their dealings with him thereafter.
13 While I am conscious that Mr Fordham is only to be sentenced for a single offence against s 6(1), and that I must disregard the evidence led in support of the charges which were dismissed, there can be no doubt that he was aware that a listening device had been installed in the car for the express purpose of recording his conversation with Mr Markham - a conversation styled by him so as to lure Mr Markham to approve of the escort being killed - and that he had the hope or even the expectation that the product of that recording would be used for journalistic purposes. I emphasise, however, that he is not to be sentenced for that conduct since it is not a criminal offence to know that someone else is using, or has caused to be used, an unauthorised listening device, or to participate in a private conversation that is being secretly recorded by means of such a device.
14 Before moving to consider the evidence bearing upon sentence, I accept that it is beyond the legitimate reach of these sentencing remarks to offer my own judgment of the news value of the story that was broadcast on A Current Affair on 28 and 29 May 2008, although I suspect that no one is in any doubt as to what my views are. It is, however, appropriate to publically record the fact that I am satisfied beyond any question that Mr Dunshea was at all times used as an innocent pawn in pursuit of Mr Tolmie's criminal objectives, and that he has had no dealings with Mr Markham, or any friends of Mr Markham's, at any time. While it may be that neither Mr Byrne nor Mr Fordham were aware of that fact at the time of their dealings with Mr Tolmie, and that they may have at all times genuinely believed that Mr Dunshea was the target of a contract killing, openly sanctioning Mr Tolmie's decision to publically expose his uncle, and assisting him to do so rather than encouraging him to inform police, displays an appalling lack of judgment on the part of two senior journalists who are otherwise held in high esteem by their professional colleagues.
15 In considering the significance of the studio interview with Mr Tolmie for the purposes of determining whether or not the car conversation was a private conversation, I recorded an incidental finding of fact to the effect that both Mr Byrne and Mr Fordham had resolved, with or without the concurrence of senior personnel within TCN Nine, to deliberately withhold from police the information they had in their possession after the recording of the car conversation in order to exploit that information for journalistic purposes (see DPP (NSW) v Fordham; Byrne; TCN Channel Nine Pty Ltd at [31]). That much is obvious given that although they told Mr Tolmie that the information would be made available to police, the recordings of the car and mobile conversations were not given to police until 30 minutes before the broadcast of A Current Affair on 28 May 2008, some days later. At the time of publishing my reasons I was unaware that both defendants had been charged with a breach of s 316(1) of the Crimes Act 1900 because of that conduct and that proceedings were pending in the Local Court. I was made aware of that fact for the first time in the sentencing proceedings. While it remains my view that relevant information was deliberately withheld from police, where a discrete criminal offence concerning that conduct remains to be prosecuted in another court, I am obliged to disregard that finding for sentencing purposes in this case.
16 On the other hand, Mr McClintock relied on the fact that the recordings were ultimately given to police on 28 May 2008, that Mr Fordham and Mr Byrne provided statements to police at that time concerning circumstances in which the recordings were made, and that they have since then indicated their willingness to give evidence for the prosecution in the proceedings where Mr Markham is charged with recruiting another to carry out a criminal activity contrary to s 351A of the Crimes Act, as entitling them to a lesser penalty in accordance with s 23 of the Sentencing Act.
17 In deciding whether to impose a lesser penalty, and the nature and extent of that penalty, s 23(2)(e) obliges me to consider the timeliness of the assistance provided. In this case, as I have already indicated, the assistance was not delivered in a timely fashion at all. I am not prepared to draw the inference contended for by McClintock that either or both Mr Fordham or Mr Byrne were distracted by other professional commitments, or that they were for any other reason uncertain about their obligations. There was simply no evidence upon which those inferences could be drawn. While it is true that the delay in furnishing the information did not apparently diminish the quality of the assistance or expose anyone to risk (simply because, in the peculiar circumstances of this case, there was never any intention that an escort be killed), it is nevertheless a matter which does not operate in the defendants' favour. That said, I will take their past and future assistance into account for sentencing purposes, while remaining conscious of the need to ensure the reduced penalty is not unreasonably disproportionate to the nature and circumstances of the offence as mandated by s 23(3) of the Sentencing Act.
18 In the course of submissions directed to an assessment of the objective seriousness constituted by Mr Byrne's breaches of s 6 of the Act, Mr McClintock submitted that I would be satisfied that his knowing communication of the car conversation and the mobile conversation (both recorded by the use of an unauthorised listening device) was the result of an error in judgment on his part rather than a deliberate breach of the law. He advanced the same submission in respect of Mr Fordham's offending.
19 He did not submit that the same conclusion was open in relation to Mr Byrne's breach of s 5 of the Act. Since Mr Byrne did not give evidence in the substantive proceedings or on sentence, and where his statement to police is silent on the question, I find it difficult to come to any conclusion other than that he caused a listening device to be used to record the conversation between Mr Fordham and Mr Markham in deliberate breach of the law. That is not because Mr Byrne exercised his right to remain silent. However, in the absence of any explanation from him as to what, if anything, he thought or believed about the lawfulness of using a secret recording device, or what steps he took (if any) to settle any doubt he might have had about that question, it is difficult to conceive of any other finding. I am conscious of the need, however, to be satisfied beyond reasonable doubt that he deliberately breached the law if I am to factor that finding into the penalty to be imposed for that offence.
20 I will return to resolve that question since, for the following reasons, I am not satisfied that either Mr Byrne or Mr Fordham deliberately breached the law in respect of the offences under s 6(1) of the Act, in the sense that they knew that in broadcasting the segment including the car and mobile conversations they were breaking the law. The question was resolved in their favour in the following way.
21 Initially, Mr McClintock submitted that I would be satisfied that the breach of the prohibition on communicating a private conversation recorded in breach of the Listening Devices Act by both Mr Byrne and Mr Fordham was the result of an error of judgment. I made it clear that I was not persuaded by that submission given that there was no evidence at all as to their actual state of mind or intention at any time prior to the broadcast on 28 May, and no suggestion in the evidence that either Mr Byrne or Mr Fordham had sought advice from a lawyer, or from an executive within TCN Nine, as to whether it was appropriate to proceed to broadcast a record of the mobile and car conversations. Mr McClintock then sought a short adjournment.