McBride v The King [2025] ACTCA 16

The appellant initially entered a plea of not guilty to all charges. However, prior to the empanelment of the jury, the appellant sought an indication as to what instructions the jury would be given with respect to the scope of the “duty” referred to in s 73A(1) of the Defence Act and s 70(1) of the Crimes Act. The parties agreed that there was jurisdiction for the Court to hear the argument and to give a ruling on this issue.

In order to establish the offences against s 73A of the Defence Act and s 70 of the Crimes Act, it was necessary for the prosecution to establish beyond reasonable doubt that the appellant had not made the impugned communication in the course of his “duty” (or “official duty”, in the case of s 73A). The appellant contended that the jury should be instructed that the “duty” referred to in these provisions “extended to acting in the ‘public interest’ or ‘Australian public interest’, as determined by the jury, even where that was in contravention of a lawful order that had been given to the accused”.

The primary judge rejected the appellant’s contention and on 16 November 2023, made orders to this effect: R v McBride [2023] ACTSC 328 (McBride); R v McBride (No 2) [2023] ACTSC 330 (McBride (No 2)). An application for leave to appeal was heard and dismissed by McCallum CJ in an ex tempore decision later that day: McBride v The King [2023] ACTCA 42.

Immediately following these rulings, on 17 November 2023, the appellant pleaded guilty to the following three offences in full satisfaction of the indictment: (a) Count 1, theft, contrary to s 131.1(1) of the Criminal Code: between about 1 December 2013 and about 26 February 2018, the appellant dishonestly appropriated property belonging to a Commonwealth entity with the intention of permanently depriving the entity of the property. (b) Count 2, unlawfully communicating naval, military or air force information, contrary to s 73A(1) of the Defence Act: between about 1 August 2014 and about 31 December 2015, the appellant, being a member of the ADF, communicated documents relating to naval, military or air force information to other persons, namely Chris Masters and Andrew Clark, and that communication was not in the course of his official duty. (c) Count 3, unlawfully communicating naval, military or air force information, contrary to s 73A(1) of the Defence Act: between about 2 May 2016 and about 11 July 2017, the appellant, being a member of the ADF, communicated documents relating to naval, military or air force information to another person, namely Daniel Oakes, and that communication was not in the course of his official duty.

Count 1 related to the appellant’s conduct in taking the confidential documents from the ADF and storing them at his private home. Counts 2 and 3 related to the appellant’s conduct in disclosing confidential documents to Mr Masters and Mr Clark, and Mr Oakes, respectively.

The primary judge was also asked to take into account, pursuant to s 16BA of the Crimes Act, a charge of contravening s 70(1) of the Crimes Act in relation to count 3. Section 16BA permits an offender who admits guilt for an offence, to have the offence taken into account by the court in passing sentence on them for the offence or offences for which they have been convicted. This charge related to the publication of confidential material on the Ops Room Website.

On 14 May 2024, the primary judge convicted the appellant of the three offences and imposed an overall sentence of imprisonment for 5 years and 8 months, comprised of individual sentences of 34 months (count 2); 34 months (count 3) and 27 months (count 1): R v McBride (No 4) [2024] ACTSC 147 (R v McBride (No 4)). The overall term commenced on 14 May 2024 and will end on 13 January 2030. A non-parole period of 27 months was fixed, commencing on 14 May 2024 and ending on 13 August 2026.

The appellant appeals against his conviction and sentence.

For the reasons below, the appeals against conviction and sentence are dismissed.

Prior to making the disclosures which were the subject of counts 2 and 3, the appellant had sought to agitate his concerns internally. However, it is important to note that the appellant engaged in the offending conduct before the internal inquiry, which he had set in motion, had concluded.

Specifically, the appellant had approached the Australian Federal Police (AFP) in May 2014 about his concerns that the ADF was illegally using disciplinary investigations to vexatiously and improperly prosecute Australian soldiers. The AFP advised the appellant that the information the appellant had provided did not disclose evidence of a criminal offence. The AFP officers told the appellant that the Inspector General of the Australian Defence Force (the IGADF) would be best placed to investigate his concerns.

On 15 August 2014, the appellant prepared a submission to the IGADF. In that submission, the appellant stated that the disclosure was being made under the PID Act. However, on 25 August 2014, the Deputy Inspector General explained to the appellant that disclosures about alleged ADF misconduct could not be made under the PID Act to the IGADF at that time. The appellant was provided with information about the process that needed to be followed to allow his submission to be treated as a disclosure under the PID Act. The appellant declined that opportunity, saying that his preference was for the IGADF to investigate his concerns.

The IGADF determined to hold an inquiry (the IGADF Inquiry). Two assistant IGADFs were appointed to the task. One was a former judge of the County Court of Victoria and a Commodore in the Royal Australian Navy Reserve. The other was a captain in the Royal Australian Navy.

In August 2015, the IGADF provided a report (the IGADF report), which upheld the appellant’s complaints about the validity of some warrants issued by the Australian Defence Force Investigative Service, but found that the other complaints made by the appellant, particularly concerning the alleged over-investigation of Australian soldiers, could not be substantiated. The appellant read the IGADF Report in the IGADF office in late 2015. He did not raise any concerns about the report with anyone at the IGADF at that time. Nor did he seek to raise any further concerns by utilising PID Act procedures after the IGADF report was published.

The chronology of these events as against the offences committed by the appellant is significant. The Agreed Facts records that count 1 (theft) commenced in May 2014. Count 2 (unlawfully communicating naval, military or air force information), which was constituted by the provision of documents to Mr Masters and Mr Clark, likewise occurred in either late 2014 or early 2015. Count 3 (unlawfully communicating naval, military or air force information), which was constituted by the provision of documents to Mr Oakes, occurred in 2016.

In short, the appellant chose to take unilateral action to remove SECRET documents from ADF headquarters, to store them insecurely in his private home, and to disclose SECRET information to journalists. The appellant undertook this action, including disclosing the documents to two journalists (Mr Masters and Mr Clark), before the IGADF had produced its report and before the appellant knew the outcome of the IGADF Inquiry. The appellant did not make any complaint to, or about, the IGADF Inquiry after the production of its report. Nor did he take any other action after the IGADF Inquiry dismissed his complaints about the over-investigation of war crimes by the ADF. The appellant’s communications with Mr Oakes occurred after Mr Oakes first made contact with the appellant.

The third contextual matter concerns the effects of the appellant’s conduct, which will be addressed further below. The Agreed Facts records that the IGADF Inquiry subsequently conducted by Major General Brereton was initiated by the ADF more than 12 months before the ADF became aware of the appellant’s disclosures. Apart from lawfully using the appellant’s IGADF submission to identify lines of inquiry, Major General Brereton did not use any information from the appellant’s unlawful disclosures the subject of the charges: McBride (No 4) at [192]. The appellant did not respond to Major General Brereton’s emails inviting him to give evidence before the Inquiry (the appellant had no recollection of receiving the emails).

Finally, as the primary judge observed, whilst there is “no doubt that the subject matter of The Afghan Files was a matter of significant public interest… the articles published by Mr Oakes were the exact opposite of what [the appellant] had intended when making the disclosures”: McBride (No 4) at [192]. In those circumstances, the primary judge concluded that it was “not appropriate to treat any raising of awareness [of alleged war crimes] by reason of Mr Oakes’ journalistic activities as being a matter reducing the seriousness of [the appellant’s] conduct”.

Each of the above contextual matters were the subject of concessions in the Agreed Facts, and findings by the primary judge at first instance. None of these findings were the subject of challenge in this appeal. Conviction appeal Procedural Background

As explained in the proceedings below, the appellant contended that the “official duty” in s 73A of the Defence Act and “duty” in s 70 of the Crimes Act of a member of the ADF was, consistent with their oath of enlistment, to advance the Australian public interest, and that this could involve a disregard of lawful orders applying to that member. The s 131.1(1) Criminal Code offence of theft, to which the appellant pleaded guilty, is not directly impacted by the conviction appeal. It is not referred to in the primary judge’s reasons (and it is assumed was not the subject of argument before the primary judge): see McBride (No 2).

As part of that submission, the appellant contended that the scope of the appellant’s duty, for the purposes of s 73A(1) and s 70(1), was not defined by duties imposed by the Defence Force Discipline Act 1982 (Cth) (Discipline Act) including a “general order” pursuant to s 29, Internal Defence Instructions (part of the definition of general order), or any disciplinary code. On this basis, the appellant contended that general orders only had effect for the purposes of discipline under the Discipline Act. We note the general orders relied on by the prosecution to establish that the appellant’s conduct was not in the course of his official duty, and the duties said to arise therefrom, were summarised by the primary judge in his reasons. It is unnecessary for present purposes to repeat that summary.

After rejecting the appellant’s contention, the primary judge made the following orders on 16 November 2023, to reflect his conclusions: 1. Subject to any further order of the Court made during the trial: (a) The directions to the jury will not include a direction that, by reason of the oath taken by the accused under the Defence (Personnel) Regulations 2002 (Cth) and s 45 of the Defence Act 1903 (Cth), the duty of the accused for the purposes of s 73A of the Defence Act 1903 and s 70 of the Crimes Act 1914 (Cth) extended to acting in the “public interest” or “Australian public interest”, as determined by the jury, even where that was in contravention of a lawful order that had been given to the accused. (b) The directions to the jury will be framed in a manner that recognises that a lawful order contained in a “general order” within the meaning of the Defence Force Discipline Act 1982 (Cth) may define the scope of the duty of the accused under s 73A of the Defence Act 1903 and s 70 of the Crimes Act 1914.

Thereafter, the appellant pleaded guilty to the three counts described above.

The sole ground in the conviction appeal alleges that a “miscarriage of justice arose because the appellant’s pleas of guilty were entered in consequence of the wrong decision of questions of law in orders 1(a) and/or 1(b) in R v McBride (No 2) [2023] ACTSC 330”. This ground relates to the offence provision the subject of counts 2 and 3, namely s 73A(1) of the Defence Act. However, we note that in reply, the appellant maintained the same statutory construction for the meaning of “duty” in s 70(1) of the Crimes Act.

The respondent did not make any objection to the taking of an appeal against conviction following the entry of the guilty pleas. The appeal was conducted by both parties on the basis that if legal error was established in the primary judge’s decision concerning the directions to be given to the jury, it would follow that a miscarriage of justice would have been occasioned, requiring the convictions and sentences to be set aside: see similarly Watson v The Queen (No 2) [2020] ACTCA 30 at [13] – [17]. Statutory provisions

It is helpful at the outset to recite the terms of the two offence provisions the subject of the argument before the primary judge, as at the relevant dates.

Section 73A(1) of the Defence Act is as follows: 73A Unlawfully giving or obtaining information as to defences (1) A person who is a member of the Defence Force or a person appointed or engaged under the Public Service Act 1999 is guilty of an offence if: (a) the person communicates to any other person any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air force aerodrome or establishment or any other naval, military or air force information; and (b) the communication is not in the course of the first-mentioned person’s official duty.

Section 70(1) of the Crimes Act is as follows: 70 Disclosure of information by Commonwealth officers A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence. Consideration

The appellant identified that before the primary judge he relevantly argued: (1) that “official duty” is not defined in the Defence Act; (2) for the purposes of s 73A(1), “official duty” refers to the duty arising from the oath taken on enlistment (and is not synonymous with duties imposed by the Discipline Act, including compliance with lawful general orders, or defence regulations); (3) that the promise in the oath to “well and truly serve Our Sovereign” should be understood as a duty to advance the Australian public interest; and (4) whether or not a particular action is in the “public interest” and thereby in the course of a person’s official duty, is a matter for a jury to determine.

The appellant has not alleged any error in the primary judge’s reasoning in rejecting those propositions, rather he challenges the primary judge’s conclusion. By doing so, the appellant failed to properly grapple with the reasons of the primary judge or advance submissions directed as to why his Honour was incorrect.

The appellant’s submission is one of statutory construction, being the meaning of the term “official duty” in s 73A(1) of the Defence Act (and “duty” in s 70(1) of the Crimes Act).

It is timely to recall that the starting point for ascertaining the meaning of a statutory provision is its text, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] – [71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [46] – [47].

That said, although the appellant made submissions directed to the statutory construction of s 73A, in practical terms, unless the appellant establishes the primary judge erred in concluding that the oath of enlistment does not require a member of the ADF to act in the “public interest” or “Australian public interest”, even when in contravention of a lawful order given to that member, he cannot succeed on his appeal. It is therefore appropriate to first consider that submission. That is because the appellant’s contention that he has a duty to act in the public interest is solely dependent on that duty arising from the terms of his oath. That is the only basis for a jury direction in the terms he sought. Although order 1(a) also refers to s 45 of the Defence Act, that was not relied on in the appeal. That is unsurprising given s 45 is simply a provision which created the obligation for “continuous full time military service” at the relevant time, as distinct from service in the Army Reserve, where the use of the word “service” could not provide a foundation for the duty the appellant contends for: McBride at [110].

Accordingly, the appellant confined his submission, as to the source and content of the duty, to the terms of the oath of enlistment. That is, his submission is premised on the proposition that by taking the oath of enlistment, as required by law to become a member of the ADF, that member has a duty to act to advance the Australian public interest, as that member determines it to be, and to act accordingly. That duty imposed on the member “to act in the Australian public interest” is to be carried out even if it involves disobeying lawful orders, or legal obligations imposed on that member by the ADF. This, according to the appellant, defines his official duty as a member of the ADF. As such, the appellant contended that a lawful general order within the meaning of the Discipline Act does not define the scope of the duty in s 73A (or s 70).

The appellant therefore submitted, in relation to the s 73A(1) offence: the jury would need to be directed [that] the Crown would need to establish beyond reasonable doubt that the particular communication was not reasonably necessary in order to advance the Australian public interest and that the Australian public interest would not necessarily be determined by reference to whether or not there was a lawful general order in place prohibiting the communication.

Before the primary judge, the proposed direction was put as follows, McBride at [104]: The jury must be satisfied beyond reasonable doubt that a communication could not be regarded, given the existing circumstances, as a carrying out of [the accused’s] official duty to serve the public interest. That is, the Crown must eliminate any reasonable possibility that the communication could be regarded, given the existing circumstances, as a carrying out of the accused’s official duty to serve the public interest.

The primary judge correctly rejected that proposition: McBride at [106] – [112].

His Honour recited the appellant’s submission detailing the history of the oath, which is unnecessary to repeat here: McBride at [92] – [104]. The oath taken by the appellant was provided for in Schedule 2 to the Defence (Personnel) Amendment Regulations 2002 (Cth) (Defence Regulations), and was as follows: I, (insert full name of person) swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, as a member of the (insert Australian Navy, Australian Army, or Australian Air Force) (insert for the period of (number of years), and any extensions of that period or until retiring age,) and that I will resist her enemies and faithfully discharge my duty according to law.

The abovementioned oath is relevantly in the same terms as what the appellant identified he took as a commissioned officer: McBride at [96].

The appellant’s submission was quoted by the primary judge at [98] to then follow that: The duty to “well and truly serve” the Sovereign [as arising from the oath] should be understood, under the Australian constitutional framework, as a duty to advance the (Australian) public interest.

The appellant’s submission finds no support in the terms of the oath. There is no reference to a duty to act in or advance the Australian public interest, and if there was such a duty, it would be expected the terms of the oath would expressly state so. As discussed further below, this is particularly so given the concept of military service and what that has historically entailed. Moreover, there is nothing in the terms of the oath that directs a member’s attention to this being their duty, and that they have an individual obligation to assess the acts they are taking (i.e. whether such acts are in the public interest), instead of simply obeying the lawful orders the member is given. Again, if that is what is intended by the oath it would be expected that it would clearly and explicitly state so. Rather, the terms of the oath are to the contrary. The oath, as recited above, requires a member of the ADF to well and truly serve the Sovereign and that the member “will resist her enemies and faithfully discharge [their] duty according to law”. The appellant’s submission has not adequately explained the meaning or application of “according to law”. Indeed, the appellant’s written submissions (in chief and reply) do not refer to that aspect of the oath. The meaning of that phrase is self-evident. The oath is underpinned by the concept of service in line with the inherent nature of military service, within which, as identified below, compliance with orders is a central feature. That is the plain meaning of its terms.

It is important to recognise that the interpretation of the oath contended for by the appellant, if correct, would hold for all purposes. That is, the duty imposed on members of the ADF which he says arises from the oath would not be confined to the disclosure of confidential information (being the offence the subject of these proceedings) but would also extend to conduct of members in all spheres of a member’s military service, including on the battlefield.

The appellant did not identify that the Defence Regulations or any other defence legislation expressly gave the oath the effect for which he contended: McBride at [108].

In so far as the appellant seeks to rely on the ordinary meaning of “service” as part of the oath to “well and truly serve”, it does not assist him. The word must be considered in the context in which it appears, a military context.

As the primary judge observed at [114] – [115]: [114] The Discipline Act makes it clear that there is a duty to obey a lawful command of a superior officer (s 27) or of a lawful “general order” such as a Defence Instruction (s 28). [115] The Defence Act and the Discipline Act exist against a background which assumes the importance of a disciplined force that follows lawful orders.

There are many authorities which describe the nature of military service. Although the Courts there were not considering the argument advanced by the appellant in this case, the general concept nonetheless informs the nature of military service and reflects the content of the oath for membership in the ADF.

For example, in Haskins v Commonwealth [2011] HCA 28; 244 CLR 22, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed at [67]: To permit the plaintiff to maintain an action against those who executed that punishment (whether service police or the officer in charge of the Corrective Establishment) would be destructive of discipline. Obedience to lawful command is at the heart of a disciplined and effective defence force. To allow an action for false imprisonment to be brought by one member of the services against another where that other was acting in obedience to orders of superior officers implementing disciplinary decisions that, on their face, were lawful orders would be deeply disruptive of what is a necessary and defining characteristic of the defence force. It would be destructive of discipline because to hold that an action lies would necessarily entail that a subordinate to whom an apparently lawful order was directed must either question and disobey the order, or take the risk of incurring a personal liability in tort.

In White v Director of Military Prosecutions [2007] HCA 29; 231 CLR 570, Gleeson CJ said at [19]: An illustration of the problem of separating essentially disciplinary offences from civil offences may be seen in the archetypal disciplinary offence: mutiny. The essence of mutiny lies in the combination to defy authority. The offence strikes at the heart of a disciplined, hierarchical service.

This description was echoed by Gummow, Hayne and Crennan JJ, who later said at both [52] and [61], that “the defining characteristic of armed forces [is] as disciplined forces organised hierarchically”.

As the respondent correctly observed, the notion of service in this context does not encompass simply doing what the soldier considers to be in the public interest, where [t]hat would invert the relationship between the soldier and the sovereign. Soldier A does not serve the sovereign by promising the sovereign to do whatever Soldier A thinks is in the public interest even if contrary to the lawful general orders of the chain of command over which the sovereign ultimately presides. This is the very antithesis of service.

From the appellant’s perspective, the high point of his submission in respect to “service” was his reliance on a passage from McTiernan J in Commonwealth v Quince [1944] HCA 1; 68 CLR 227 at 250, in respect of a member of the Royal Australian Air Force: His enlistment was an engagement for public service: for the defence and security of the community. As public service it was “for the public benefit” or the “good of the public” and could not at common law be the subject of a contract consisting of mutual promises (Dunn v The Queen). (Citation omitted)

The appellant then referred to the passage in Dunn v The Queen (1896) 1 QB 116 at 118, where Lord Esher MR noted what he had said in De Dohsé v Reg (unreported, Court of Appeal, 2 June 1885): All service under the Crown itself is public service, and to my mind it is most likely that the doctrine which is said to be confined to military service applies to all public service under the Crown, because all public service for the Crown is for the public benefit.

From those passages, the appellant submitted that the content of the “duty” derives from the office, as was set out by McTiernan J in Quince, being by virtue of the office to act to serve the public. So we would say that that overarching official duty is a duty to act for the public benefit or, as it has been framed on behalf of the appellant, in the Australian public interest, and that is the answer to the legal question which we say Mossop J was in error in deciding to the contrary.

However, properly read, the comments by McTiernan J do not have the meaning or consequence the appellant contended for. His Honour does not suggest that it is the member’s duty to act in the public interest, that the member is to thereby act in that manner as the member determines it, or that this duty derives from the member’s oath of enlistment. Indeed, McTiernan J at 248 – 249, refers to the injured airman having enlisted in the Royal Australian Air Force and having taken the oath of enlistment with the consequence that [h]e thereby promised to serve the King in the Air Force for the duration of the war and twelve months thereafter, to resist the King's enemies and to cause his peace to be maintained and in all matters appertaining to his service, faithfully to discharge his duty according to law. The airman was bound under the regulations to serve according to the tenor of the oath.

Significantly, the comments of McTiernan J at 250 are in the context of what he was examining in that case, being the question of whether a claim can be brought by the Commonwealth against Quince who, through his negligence, caused injury to the airman. His Honour was explaining why there was no contract of service between the Crown and a soldier.

As the primary judge observed at [120]: Neither that passage nor the case from which the references to “for the public benefit” or “good of the public” are drawn, support the proposition that there was some independent entitlement arising from the accused’s oath to disobey a lawful order.

No other member of the Court in Quince refers to the concept of service in the manner relied on by the appellant, although most refer to the oath of enlistment. To illustrate, Latham CJ in dissent said at 234 that “[t]he oath of enlistment imposes an obligation to render service”. His Honour also said at 238: The authorities in my opinion show that the action lies when one person has a right to the services of another and can command that person in the doing of such services. The Commonwealth is entitled to the services of members of the forces. They swear that they will serve the King. Military service is service of the highest order of obligation. The obligation is enforced by discipline under the authority of military law. It is higher in degree than any contractual obligation or any obligation founded upon family relationship. It is, I think, true that a member of the forces is not a servant of the Crown in such a sense that the ordinary law of master and servant determines the relations of the parties. He may not be an officer or servant of the Crown within the meaning of a statute which imposes liability upon the Crown for the acts of its officers and servants – as was held in McArthur v. The King. But the very essence of his position is that he is bound to render service, to obey orders, and, in my opinion, the history of this form of action shows that in such cases the action lies, even though the obligation is not based on contract. (Citation omitted)

Williams J, also in dissent, said the following at 255 and 257: The oath is an oath to serve the King in person according to its tenor. Service in the Air Force, as in the naval or military forces, involves in its most absolute form the right of a member superior in rank to give lawful orders to a member inferior in rank, and the obligation of the member inferior in rank to obey those orders. In essence the obligation is the same as the obligation of any servant to obey the orders of his master. The difference is that a breach of the obligation does not give rise to an action for damages but to disciplinary punishment. … But, within this broad charter, an airman is bound, as I have said, to obey the lawful orders which he receives from time to time from a superior in rank.

The primary judge surveyed other cases relied on, being: Marks v Commonwealth [1964] HCA 45; 111 CLR 549; R v District Court of the Northern District of Queensland; Ex parte Thompson [1968] HCA 48; 118 CLR 488; Groves v Commonwealth [1982] HCA 21; 150 CLR 113; X v Commonwealth [1999] HCA 63; 200 CLR 177; Private R v Cowen [2020] HCA 31; 271 CLR 316; and Commonwealth v Carter (1965) 7 FLR 223. As his Honour commented, those cases are of limited assistance where none of them involve a consideration of the issue that arises in this case. That said, as the primary judge concluded at [129]: none of [the cases] recognise a duty of a military officer arising pursuant to the oath taken, or otherwise, to act in the public interest when that is in direct contravention of a lawful order. On the contrary, the authorities recognise that discipline within the military is dependent upon the obligation of members to comply with a lawful order. The absence of any reference to any independent aspect of a member-of-the-Defence-Force’s duty being to disobey a lawful order in the “public interest” or “Australian public interest” is because there is no textual, common law or historical foundation for the existence of such a duty.

As the respondent submitted, the history of military service is against the appellant’s contention that a soldier’s official duty is simply to advance the public interest even when their conduct is inconsistent with lawful general orders: see, e.g. Clode C M, The Military Forces of the Crown: Their Administration and Government (J Murray, 1869) at [110], [112] cited by Callinan J in X at 233; Clode C M, The Administration of Justice under Military and Martial Law (2nd ed, Murray, 1874) at 72 – 77, cited and part quoted with approval by Williams J in Quince at 254 and cited by Edelman J in Private R v Cowen at [193]; Dicey A V, Introduction to the Study of the Law of the Constitution (8th ed, Macmillan, 1915) at 189, 191 – 192, 196 – 197; Halsbury’s Laws of England (1st ed, Butterworth, 1913) vol 25 at [79], quoted by Gummow, Hayne and Crennan JJ in White at [71].

The primary judge at [125] referred, inter alia, to Edelman J’s recitation of a passage of Clode’s work in Private R v Cowen at [193], describing it as particularly apt: Obedience must be implicitly exacted by each responsible officer, “for nothing (even in Civil affairs) can be more dangerous than to allow the obligations to obey a law to depend on the opinion entertained by individuals of its propriety,” [Fergusson v Earl of Kinnoul 9 Cl and Fin p 324] and in military affairs it would be intolerable.

As illustrated above, the concept of military service and what that has historically entailed supports the plain reading of the oath as reflected in the reasons of the primary judge (and is inconsistent with the interpretation contended for by the appellant).

The appellant has not established any error in the primary judge’s conclusion that the oath does not give rise to the duty contended for. As a result, the appellant has not established there is any error in the primary judge’s rejection of the jury direction in the terms he sought.

Nonetheless, it is appropriate to make the following observations which arise from the appellant’s submissions.

First, there is no reference to public interest in s 73A (or s 70). If those provisions were intended to depend only upon the concept of acting in the public interest, then Parliament would simply have said so. The expression “public interest” is extremely familiar to parliamentary draftspersons.

Second, the appellant’s submission is dependent on the phrase “official duty” in s 73A. That is, it is said the phrase signifies that the duty comes from the person’s office, which in this case, is said to be derived from the oath of enlistment. Despite that, the appellant does not properly grapple with how this reasoning applies to s 70, which does not contain the same terminology (i.e. the absence of the word “official”). Rather, the submission is that the construction contended for in s 70 would be consistent with that in respect to s 73A, given the similarity of the provisions, albeit using different wording, referring to Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at [131]. However, the paragraph relied on from Harrison v Melhem simply refers to the principle of statutory interpretation supporting the presumption that a legislature intends to attach the same meaning to the same words when used in a subsequent statute in a similar connection: at [131]. That is not the situation in this case. The appellant’s submission involves reading a word into s 70. His submission based on the meaning of “official duty” could not apply to s 70.

Third, we note the appellant submitted that s 73A and s 70 refer to there being a singular duty of office to be identified; that is one duty only, not duties plural. The reasons of the primary judge in McBride which describe the submissions advanced by the appellant (and which are not criticised in this regard) make no reference to such an argument: see at [41] – [47]. In any event, the use of singular language encompasses the plural: s 23(b) of the Acts Interpretation Act 1901 (Cth). There is no indication in s 73A or s 70 to the contrary (and none were submitted by the appellant).

Fourth, although the appellant accepted that there is a duty to obey lawful general orders, he submitted that disobedience to this duty results in a service offence justiciable only within the military justice system. As the respondent submitted: The result, on this argument, is that a duty to obey lawful general orders does not form part of the official duty of a member of the Defence Force, albeit it is a critical component of what is required of them within the system of military discipline.

There is no logical basis for confining a breach of general orders to the military justice system. The existence of s 73A of the Defence Act recognises the possibility that breaches of such orders could be outside the realm of military justice, and that disciplinary action may be insufficient. The criminal offence requires different elements and carries with it a greater sentence. There is no reason in principle why a duty which can result in disciplinary action for breach cannot also inform the extent of a person’s official duty for the purposes of a criminal offence provision. As the respondent submitted, the fact that a particular duty is central to military discipline might be thought to provide a substantial reason as to why it would form part of the person’s official duty.

Further, the appellant’s reliance on s 190(1) of the Discipline Act, which provides that “a civil court does not have jurisdiction to try a charge of a service offence,” is misplaced. That was said by the appellant to reflect a clear legislative intention to capture and retain within the system of military discipline matters which (while capable of being civil criminal law offences if committed by members of the armed forces on service territory) are to be dealt with only as disciplinary matters. He submitted that a breach of lawful general orders under the Discipline Act cannot be sufficient for criminal offences because it would mean the failure to follow a lawful general order would then “simultaneously and automatically” result in a criminal consequence. In this case that was submitted to mean that a breach of a service offence (i.e. a duty to follow general orders) would automatically give rise to a contravention of s 73A(1) of the Defence Act. That submission is misconceived. The offence of failing to comply with a lawful general order in s 29 of the Discipline Act is strict liability, whereas the criminal offence in s 73A(1), as explained below, contains fault elements. In any event, s 73A is not a service offence. Just because civil courts cannot charge a service offence, does not mean that any breaches of general orders (which may result in a service offence) cannot assist in defining the scope of a member’s duty for the purposes of s 73A (and s 70).

In this context, the appellant also relied on a series of cases involving police officers, submitting his construction of “official duty” is consistent with previous decisions relating to the duty of members of the police force, citing: Enever v The King [1906] HCA 3; 3 CLR 969; Attorney-General (NSW) v Perpetual Trustee Co (Ltd) [1952] HCA 2; 85 CLR 237; Pense v Hemy [1973] WAR 40; DPP (Vic) v Zierk [2008] VSC 184; 184 A Crim R 582; Tasmania v Johnston [2009] TASSC 60; 18 Tas R 195. He submitted that these decisions confirm the distinction between a “duty of office” and legal or disciplinary duties imposed upon office holders, and thereby supports the proposition that the courts should be slow to hold that any such disciplinary duties give rise to a duty, a breach of which would amount to a criminal offence.

The primary judge surveyed the relevant cases at [61] – [88]. Again, the appellant did not identify any error in his Honour’s reasons in this regard. Rather, he merely asserts that the primary judge distinguished those authorities on the basis that “[t]hey related to a disciplined force but not to a military force in which discipline is of central importance”: McBride at [91]. Although that is an aspect of the primary judge’s reasoning, it is not complete. To put that statement in context, his Honour said when considering the effect of the Discipline Act at [89] – [91]: [89] The rules of conduct in the Discipline Act are, self-evidently, contained in an Act of Parliament. They are not obligations arising from subordinate instruments. In the case of s 29, the statute gives statutory effect to subordinate instruments. [90] The fact that the rules in the Discipline Act are not directly enforceable in the civilian courts is significant. However, it does not mean that the rules may be ignored when assessing the content of a member’s duty for the purposes of either the Defence Act or the Crimes Act. They remain statutory rules of conduct which define the duty of a member. There is no adequate reason why those rules of conduct may not be picked up by other statutes as elements of a member’s duty. To treat them as establishing a completely separate regime which could not be used to define the scope of a member’s duty would result in the anomalous situation where factual issues, such as where a member was posted and the task that the member was given to perform, would be able to be considered when determining the scope of the member’s duty, but all of the statutorily mandated constraints upon the exercise of those functions would be ignored. [91] I do not consider that the police cases require a different conclusion. Each turned on the specific statutory provisions in question. They related to a disciplined force but not to a military force in which discipline is of central importance. The existence of an established body of common law defining the functions of police officers provided a more secure foundation for an argument that the scope of the officer’s duty could be found other than in the specific disciplinary rules in question. In contrast, on the accused’s argument, the content of the duty would be contained principally in s 45 of the Defence Act and the oath that was required by the relevant regulation at the time of the accused’s enlistment. The terms of s 45 are set out later in these reasons (see [98]). Even if they had the effect contended for by the accused, they would not provide any adequate definition of the duty of the accused. As will be described shortly, the terms of s 45 do not provide a general duty to act “in the Australian public interest”, even if that involves disobedience to orders or instructions. The consequence is that unless the rules provided by the Discipline Act are available to provide content to the duty of the accused, the law will provide very little content. Anomalously, the duty of the accused would be defined by factual matters such as postings or instructions deprived of the legal content which, in reality, defines the nature of his service at the relevant times.

The appellant’s submission fails to grapple with the fact there is a statutory command to comply with lawful general orders in s 29 of the Discipline Act, whereas there was no statutory command to comply considered in any of the decisions of Pense, Zierk and Johnston (i.e. they instead concern codes of conduct or standing orders). Similarly, although both the military and police are disciplinary forces, as explained in the cases referred to above regarding the nature of military service, there is a centrality of obedience to orders in the defence force.

Those authorities are properly distinguishable.

Fifth, the appellant also submitted that because the offence in s 73A of the Defence Act is not confined to members of the ADF, but also applies to persons appointed or engaged under the Public Service Act 1999 (Cth) (who are not subject to the Discipline Act), the content of their “official duty” must derive from a different source as they do not all have a duty to obey lawful general orders. So much can be accepted. However, as the respondent submitted, “there is no reason why the official duties of members of the Defence Force must be the same as the official duties of those appointed under the Public Service Act”. The former may be obliged to follow orders as part of their office in, or membership of, the ADF which may be different to the official duty of those employed under the Public Service Act. That does not reflect any inconsistency or lead to a conclusion that compliance with general orders cannot be part of the official duty of members of the ADF.

Finally, the appellant’s written submission did not address the practical application of the direction he sought, including on the conduct of any trial. To address that, it is helpful to identify the elements of the offence.

In relation to an offence contrary to s 73A(1) of the Defence Act, the prosecution must prove that a person (a member of the ADF or a person appointed or engaged under the Public Service Act): (a) communicates to any other person any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air force aerodrome or establishment or any other naval, military or air force information (physical element – conduct; fault element – intention); (b) the communication is not in the course of that person’s official duty (physical element – circumstance; fault element – recklessness).

To establish its case, the prosecution must prove for the element of circumstance, that “the communication is not in the course of the person’s official duty”, which the appellant contended means proving that the particular communication was not reasonably necessary in order to advance the Australian public interest. The jury direction sought for this element (recited above at [51]), contains concepts (e.g. “Australian public interest” and “reasonably necessary”) not in the offence provision.

During the hearing, the appellant accepted that this direction would effectively require the prosecution in a case (where it is based on documents being communicated) to tender every document and leave the jury to assess each document to determine whether they are satisfied the communication was not reasonably necessary to advance the Australian public interest. To do so would likely require the prosecution having to lead classified evidence on matters of military and national security issues (including, but not limited to, the documents themselves). On the appellant’s submission, this direction is required in each case where this offence is charged, regardless of the motive of the accused, as the prosecution must establish its case. It must be able to do so even when an accused has not made any statement to the authorities (or revealed their motive). To suggest, as the appellant does, that an interpretation which has these consequences is consistent with Parliament’s intention in relation to s 73A(1) (or s 70(1)), is without any proper foundation. It is inherently unlikely.

We note also that the appellant had difficulty in articulating the application of his contended jury direction. In explaining the direction, he submitted that where a person is possessed of a belief that there is, for example, wrongdoing being committed by the Australian Defence Force, it would be a matter for the jury to determine whether or not [the communication is advancing the public interest].

However, as explained above, that direction would be required in each case irrespective of whether a motive is apparent. As the submission reflects, although the appellant disavowed that a person’s subjective motive was relevant to assessing reasonableness (affecting the scope of the evidence to be led by the prosecution), during the hearing, his submission repeatedly changed. He often reverted to referring to the subjective intention when explaining the direction. This reflects the artificial nature of the appellant’s submission, with which he never properly grappled. Further, it is to be recalled that the appellant submitted the same direction applies to both offence provisions, yet the terms of the provisions and therefore the elements of the offences, are different. The element of circumstance in s 70 is that a person has a duty not to disclose (to be contrasted with the appellant’s case for “official duty” in s 73A which refers to a positive duty to advance the Australian public interest). Conclusion

The appellant has not established error in the primary judge’s conclusion in order 1(a) of McBride (No 2) that the oath of enlistment taken by the appellant does not define the duty of the appellant for the purposes of s 73A of the Defence Act and s 70 of the Crimes Act as extending to acting in the Australian public interest, even where in contravention of a lawful order. Nor has he established error in the primary judge’s conclusion in order 1(b) of McBride (No 2) that a lawful order contained in a “general order”, within the meaning of the Discipline Act, may define the scope of the duty of the accused under s 73A of the Defence Act and s 70 of the Crimes Act. To put it another way relevant to this case, a communication of the type referred to in s 73A or s 70 may not be in the course of a person’s “official duty” if that person was under a duty (which arises from, inter alia, general orders) not to make that communication.

Accordingly, the appeal against conviction is dismissed.

It is also important to bear in mind the observations made at the outset of this judgment when assessing the appellant’s contentions under this ground of appeal. As outlined above, the injustice which the appellant was motivated to remedy was not that Australian soldiers were failing to be held to account for war crimes. Rather, the appellant’s concern was that Australian soldiers were being over-investigated for such crimes. It is difficult to see why an honest belief that Australian soldiers were being over-investigated by the chain of command mitigated the appellant’s conduct, particularly where the appellant decided to breach his duties of confidentiality before the IGADF Inquiry which he had initiated had made any findings. In these circumstances, the primary judge was correct to find that the appellant’s motivation was only relevant insofar as it did not operate as an aggravating factor on sentence.

This ground of appeal should be dismissed.

Accordingly, whilst we do not adopt the reasoning of the primary judge in respect of the relevance of the appellant’s legal prowess, there is no material error in the primary judge’s conclusion that the appellant’s belief in the lawfulness of his actions was not of a nature that justified any mitigation of the sentence to be imposed.

As a result of the above, the Victorian Court of Appeal held that an offender’s mental condition “may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served”: Verdins at [32(2)]. Further, the Court observed that where there is a “serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment”: Verdins at [32(6)].

These principles were applied by the High Court in R v Guode [2020] HCA 8; 267 CLR 141 at [8] and [46], and have been followed in many Australian jurisdictions, including by this Court: Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [65].

In respect of point (i) above, there are some suggestions in the authorities that there will be no reduction in an offender’s moral culpability unless there is a “direct causative link” between the offender’s mental impairment and the offending: see, for example, Bowen v The Queen [2011] VSCA 67 at [33]. However, more recent authorities are not so rigid, and have held that an offender’s mental impairment may reduce a person’s moral culpability where the offender’s mental impairment has made a “material contribution” to the offending, or has some other “realistic connection” to the offending: Moiler v The Queen [2021] NSWCCA 73 at [58]; Crane v The King [2024] NSWCCA 87 at [69] – [73]; Hu v The King [2025] VSCA 60 at [71].

We agree with these more recent authorities. The causes of human behaviour are complex and multilayered: see similarly DPP v Herrmann [2021] VSCA 160; 290 A Crim R 110 at [45]. The sentencing task should not be approached in “an unduly technical or restrictive way”, which disregards the complexity of human behaviour: Crane at [70]. For this reason, “[w]here the mental illness or impairment explains or sheds light on the offending conduct in some material way, an offender’s moral culpability may be reduced, and the weight afforded to denunciation and deterrence may be lessened”: Crane at [70].

However, it must also be borne in mind that a finding of reduced moral culpability does not necessarily require the weight to be given to general or specific deterrence to be reduced or eliminated: Hu at [65]. It is “erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances”: R v Engert (1995) 84 A Crim R 67 at [68], quoted in Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [58]. Each case will depend upon its own facts. As Nettle JA (as his Honour then was) observed in R v Howell [2007] VSCA 119; 16 VR 349 at [24], “[t]he theory and reality upon which the intuitive synthesis approach to sentencing is built is that each case is unique”.

As explained by the Victorian Court of Appeal in Verdins, whether the weight to be given to general and/or specific deterrence should be moderated depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender: see also Hu at [65]. Of particular relevance to this assessment will be whether the mental condition affected the offender’s capacity to understand the wrongfulness of their conduct: Hu at [65]. Where an offender’s mental illness is such that the offender is not an appropriate medium for making an example to others, the weight to be given to general deterrence may be reduced, potentially significantly so: see similarly Hu at [62], citing R v Mooney (Full Court of Supreme Court of Victoria, unreported, 21 June 1978) and R v Anderson [1981] VR 155.

However, as the primary judge observed (at [186]), the appellant did not himself attribute his offending to his mental illnesses. In his interview with the Intensive Correction Order Assessment Report (ICOAR) author, the appellant “denied that alcohol or his mental health played a role in his decision to offend” and stated that he “still believed he made the correct choice”. The appellant also told the ICOAR author that in his view, his “PTSD was, in part, caused by the offences” (emphasis added), rather than the offending having resulted from the appellant’s PTSD.

The primary judge accepted Mr Borenstein’s opinion that the appellant suffered from symptoms of Major Depressive Disorder, combined with Alcohol and Substance Use Disorders and Post Traumatic Stress Disorder during the offending period: McBride (No 4) at [187]. However, his Honour was unable to determine whether it was the appellant’s “underlying personality or his declining mental health” which caused the appellant to become “obsessed with the conduct of senior management of the ADF”: McBride (No 4) at [187]. His Honour concluded that the appellant was to be sentenced on the basis that the appellant’s “mental health condition made a material, if only minor, contribution to his offending conduct”, and that the appellant’s mental health did not “have any significant consequence for the suitability of his sentence as a vehicle for general deterrence or the need for specific deterrence”: McBride (No 4) at [236].

The appellant submitted that his Honour erred in so finding. In particular, the appellant’s senior counsel contended that the appellant’s “‘underlying personality’ may be understood as a ‘mental health condition’ which affected his assessment of his ‘duty’ in respect of what he perceived as injustice within the ADF”. The appellant’s senior counsel further submitted that “whether the cause of the appellant’s ‘obsession’ was his underlying personality, his mental disorders, or a combination of the two, his [moral] culpability was diminished”, such that the need for general deterrence should have been reduced.

In the present case, there is no suggestion that the offender suffered from a recognised Personality Disorder. We are not aware of any authority which holds that an offender’s moral culpability may be reduced where the offender’s ‘underlying personality’ (which does not amount to a Personality Disorder) contributed to the offending: cf Brown v The Queen [2020] VSCA 212; 62 VR 491 at [6] and R v Waters; Ex parte DPP (Cth) [2023] QCA 131 at [58]. An offender’s personality (for example, an offender’s level of impulsivity, risk taking, social attitudes, lack of self-control) will often contribute to their offending. An offender is not less morally blameworthy simply because their personality traits were a factor in a decision to engage in criminal conduct.

However, nothing turns on this distinction in the present case. The appellant has been diagnosed as suffering from, amongst other illnesses, PTSD and Major Depressive Disorder. These diagnoses, which were unchallenged by the prosecution, arose at least in part out of the appellant’s defence service and were operative during the offending period. As outlined above, it is well-established that such mental impairments may be relevant to an assessment of the offender’s moral culpability, and to the weight to be given to the sentencing purposes of denunciation, punishment, general and specific deterrence.

In the present case, there was a clear connection between these disorders and the offending conduct. As Mr Borenstein stated, the appellant’s disorders were responsible for ongoing disturbances in, inter alia, the appellant’s thoughts and perception. Further, as Mr Borenstein also stated, these disturbances “would have impaired [the appellant’s] emotional wellbeing, judgment and behavioural choices”. In this respect, it may also be observed that in correspondence directing the appellant to take down the Ops Room Website upon first becoming aware of its existence, ADF Legal Services identified the “need to support [the appellant in his] current state of health”.

It matters not that the appellant did not himself attribute his offending conduct to his mental illnesses. The fact that an offender does not have insight into the effects of his or her mental condition does not preclude a finding that the offending was contributed to by an offender’s mental condition. It should be borne in mind that the nature of conditions such as PTSD and Major Depression may present a significant barrier to such insight.

As noted above, the primary judge accepted Mr Borenstein’s opinions. The primary judge also accepted that the appellant’s mental health condition had made a material contribution to the offending conduct. Nonetheless, his Honour concluded that this contribution was not such as to result in a significant reduction in the weight to be given to general or specific deterrence.

It was open to the primary judge to conclude that the need for general and specific deterrence remained high, despite the reduction in the offender’s moral culpability arising from his mental illnesses. As outlined at [128] – [129] above, it is not the case that a finding of reduced moral culpability must necessarily result in a reduction to the weight to be given to general or specific deterrence.

For the reasons outlined at [110] – [117] above, we have concluded that the appellant was aware that he was acting illegally (although he hoped that he may have had a lawful defence). The appellant’s mental illnesses were not such as to require a finding that the appellant was not an appropriate medium for making an example to others. As the primary judge observed (at [231]): Notwithstanding the availability of other legitimate means by which [the appellant] 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 disclosure 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.

It was similarly open to the primary judge to conclude that there remained a real need for specific deterrence. The appellant had shown no remorse for his offending. Although the appellant did not seek to establish (either before the primary judge or before this Court) that there were no other legitimate and lawful means for him to raise his concerns (McBride (No 4) at [231] – [232]), the appellant nonetheless maintained that he acted properly in breaching his duties of confidentiality. It was open to the primary judge to conclude that, in these circumstances, the appellant “needs to be deterred from any further disclosures of military information which he learned during his service as a soldier”: McBride (No 4) at [233].

It is well established that the assessment of the extent of a mental condition, its connection (if any) with the offending, and any resulting reduction of an offender’s moral culpability and the sentence to be imposed “are all very much a matter for a sentencing judge”: Moiler at [58], citing DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. As the findings of the primary judge concerning the weight to be given to general and specific deterrence were open, it follows that this ground of appeal must be dismissed.

It was open to the primary judge to reject the appellant’s contention that the risk of harm occasioned by his conduct was low. The Agreed Facts contained the following information concerning the risk of harm that was occasioned by the appellant’s conduct: As a result of the potential that a person had read, or copied the materials found at [the appellant’s] apartment, Australia’s foreign partners had to be, and were, notified of that potential. The public disclosure of information obtained confidentially from allies and partners may damage Australia’s relationships with those allies/partners. Unauthorised disclosure of allied and partner confidential information may reduce their willingness to share information with Australia in the future and Australia may not be informed of this change in attitude. If that has occurred, it would disadvantage ADF operations and, more broadly, would be of detriment to Australia’s international relations and national security interests. … Had a person read, copied or photographed the documents found at [the appellant’s] apartment, information contained in those documents may have given rise to risks such as: (1) The public disclosure of information relating to Australian intelligence operations including capabilities, sources, processes, analysis and advice, would likely prejudice the future collection (including, threatening Australian intelligence methods and sources) and analysis of intelligence, risk damage to critical international relationships, and risk prejudicing the security of future ADF operations. (2) The public disclosure of information relating to [rules of engagement] risks informing Australia’s adversaries of the limits on the ADF’s use of force. Such disclosure would give those adversaries tactical advantages, including the opportunity to employ methods that take advantage of the limitations imposed by the [rules of engagement] to the disadvantage of ADF operations, including through increased risk of harm to ADF personnel, giving rise to a risk of compromising the effectiveness of Australia’s current and future military operations and place soldiers at a greater risk of injury or death. (3) Some documents reveal sensitive information such as certain policies, capabilities and response times, the public disclosure of which would prejudice their ongoing effectiveness, and could be employed to the detriment to Australia or its partners by domestic or overseas adversaries wishing to cause Australia or its partners harm.

In the Agreed Facts, the appellant accepted that public disclosure of the information in documents which he disclosed “would, or would have been likely to have prejudiced the defence, national security or international relations of Australia at the time”, and that whilst the potential risks “have decreased and will continue to decrease over time”, “the information in a number of documents is still capable of causing such prejudice as at the date of this statement of agreed facts”.

In these circumstances, the primary judge did not err in describing the level of harm occasioned to the community as “significant”.

Accordingly, this ground of appeal should be dismissed. Seventh ground of appeal: The sentencing judge erred in failing to consider the intensive correction assessment when deciding whether to make an intensive correction order for the appellant, as required by s 78(2)(a) of the Crimes (Sentencing) Act 2005 (ACT)

Counsel for the appellant at first instance submitted that the Court should order that the appellant serve his sentence by way of an ICO. His Honour rejected that submission, finding as follows: If the availability of an intensive correction order is to be assessed by reference to the aggregate sentence imposed then, clearly, one is not available because the aggregate sentence exceeds four years. However, I have previously held that the availability of an intensive correction order is to be assessed in relation to each individual sentence that is imposed, rather than the aggregate sentence: DPP v Vincent (No 2) [2023] ACTSC 379 at [71]-[75]. Each of the sentences which I have imposed is below the four-year threshold. It is therefore necessary to consider the matters in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT) and determine whether the imposition of an intensive correction order is appropriate in the circumstances of the case. In my view, the level of harm done to the community caused by the offending is significant. Further, the offender’s culpability for the offending having regard to all the circumstances is high. Given the nature of the offending and the aggregate sentence, I do not consider that it is appropriate that it be served by intensive correction. I consider that an intensive correction order would not adequately reflect the need for general deterrence, specific deterrence and punishment of the offender.

As alluded to in the above extract, an ICO is not available where the “sentence of imprisonment” to which it relates is more than four years: s 11(3) of the Crimes (Sentencing) Act. There is contradictory authority in this jurisdiction as to whether an ICO can be ordered where the combined total of individual sentences exceeds four years.

As noted in the above extract of the primary judge’s reasons, in an earlier, unrelated judgment, the primary judge had held that where multiple sentences are ordered to be served by way of ICO, a separate ICO should be imposed for each offence: DPP v Vincent (No 2) [2023] ACTSC 379 at [71] – [75]. As a consequence, his Honour concluded that s 11(3) is not contravened where the combined sum of the ICOs totals more than four years, so long as each individual ICO is for a term of less than four years.

However, in DPP v Clarke (No 3) [2024] ACTSC 395, Taylor J accepted the prosecution’s submission that an ICO relating to more than one sentence, where each sentence was partially concurrent, was a singular, global order. Her Honour concluded that s 11(3) precludes the imposition of an ICO where that global order would exceed four years’ imprisonment.

In R v Hanson (No 3) [2025] ACTSC 6, the primary judge noted the different approaches that had been taken in Vincent and Clarke (No 3), but did not find it necessary to resolve that controversy in those proceedings. (Hanson concerned an alleged breach of an ICO which related to a number of individual sentences. As the primary judge determined that it was inappropriate to take action on the breach, it was not necessary for his Honour to determine whether the ICO was properly characterised as a single, global order, or as a number of individual, concurrent orders.)

These difficult questions of construction were not the subject of submissions on this appeal. It is not necessary to determine this issue in the present case, other than to observe that, even if the construction of the primary judge is to be preferred and separate ICOs should be ordered for each offence, an ICO or ICOs should not be ordered where the aggregate of the individual sentences exceeded four years’ imprisonment.

The absolute prohibition in s 11(3) of the Crimes (Sentencing) Act against imposing an ICO of more than four years represents a legislative determination that an ICO will not be appropriate where the offending is sufficiently serious to require a sentence of imprisonment of more than four years. So much is clear from the following explanation in the Second Reading Speech to the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT), which introduced s 11(3) of the Crimes (Sentencing) Act: This limitation is intended to ensure that offences at the more serious level, or a combination of offences which would justify a longer sentence of imprisonment, would not ordinarily be eligible for an intensive correction order. Those offences would, and indeed should, usually attract an immediate term of imprisonment in full-time detention. Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 19 November 2015, 4216 (Simon Corbell, Attorney-General).

For these reasons, where a sentencing judge determines that the criminality involved in a course of offending is such as to require a total term of imprisonment which exceeds four years, the leniency inherent in an ICO will be inappropriate. This was so in the present case, in which the overall term of imprisonment ordered by the primary judge was imprisonment for 5 years and 8 months, with a non-parole period of imprisonment for 2 years and 3 months.

As noted above, the appellant did not contend that the sentence imposed was manifestly excessive. Nor did he contend that it was not open to the primary judge to reject his submission that the sentences should be served by way of an ICO or ICOs. Rather, his submission was limited to the process by which the primary judge considered the question of whether to order an ICO. In particular, the appellant noted that s 78(2)(a) of the Crimes (Sentencing) Act provides that when deciding whether to make an ICO for an offender, “the court must consider… the intensive correction order assessment”. The appellant contended that the primary judge had not given “proper, realistic and genuine consideration” to the ICOAR because his Honour only took the report into account “in a manner adverse to the appellant”.

As the appellant acknowledged, the primary judge expressly referred to the ICOAR at three points in his judgment: first when considering whether the appellant had demonstrated remorse for the offending, second when considering the offender’s mental health and third in assessing the need for specific deterrence: McBride (No 4) at [147], [186] and [234].

Whilst accepting that the appellant was eligible for an ICO, his Honour considered that the offending was too serious for the purposes of sentencing to be met by an ICO. Having so concluded, it was not necessary for his Honour to further address the ICOAR. As this Court held in Fares v DPP (No 2) [2025] ACTCA 2 at [49]: The sentencing judge, having determined that a sentence of imprisonment served by intensive correction order would fail to reflect the gravity of the offending, was not required to go on to “genuinely engage” further with the appellant’s suitability and the assessment directed toward it. The offender’s suitability could not trump the determination the sentencing judge made as to the appropriateness of the alternative to full-time imprisonment. The offender’s suitability did not ‘cure’ that which the imposition of an intensive correction order would fail to observe.

The appellant has not established any error in the process by which the primary judge considered whether an ICO should be imposed, nor was the primary judge’s decision refusing to order an ICO or ICOs in error. This ground of appeal should also be dismissed. Orders

For the above reasons, the appellant’s appeals against his conviction and his sentence are dismissed.