R v Gillett [2019] ACTSC 30

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - abuse of public office - Commonwealth offence - early plea of guilty - excellent prospects of rehabilitation - prior good character -remorse - undertaking to provide further assistance to overseas law enforcement authorities - intensive corrections order

Crimes Act 1914 (Cth) ss 16, 16A, 16AC, 16E, 20AB

Crimes (Sentencing) Act 2005 (ACT) s 11

Crimes (Sentencing Administration) Act 2005 (ACT) s 42

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58

Bui v DPP (Cth) [2012] HCA 1

Cameron v The Queen [2002] HCA 6; 209 CLR 339

CDPP v Hill & Kamay [2015] VSC 86

DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237

DPP v Roper (unreported, Judge Gullaci, Victorian County Court, 19 March 2012)

Hili v the Queen [2010] HCA 45; 242 CLR 520

Hughes v R [2014] NSWCCA 15

Markarian v The Queen [2005] HCA 25; 228 CLR 357

R v Allan; Ex Parte Commonwealth DPP [2016] QCA 270 QCA 270

R v Bandy [2018] ACTSC 261

R v Bartels [2018] SASCFC 34

R v Colakovic (unreported, Sorby J, NSW District Court, 24 April 2014)

R v Combo [2015] WASCA 34

R v Gladowski [2000] QCA 352; 115 A Crim R 446

R v Harrington [2016] ACTCA 10; 11 ACTLR 215

R v Hathaway [2005] NSWCCA 368

R v Hopkins [2004] NSWCCA 105

R v J [1992] SASC 3639; (1992) 59 SASR 145

R v Joubert (unreported, Barr J, NT Supreme Court, 10 May 2016)

R v Kennedy [2000] NSWCCA 527

R v Kerr (unreported, Kennedy CJDC, WA District Court, 26 April 2005)

R v Lattouf (Unreported, Mahoney ACJ, Sully J and Adams AJ, NSW Court of Criminal Appeal, 12 December 1996)

R v Nath [1994] SASC 5144; (1994) 74 A Crim R 115

R v Obeid (No 12) [2016] NSWSC 1815

R v Sheridan (unreported, Chateris DCJ, NSW District Court 27 October 2014)

R v Srna [2018] ACTSC 337

R v TA [2003] NSWCCA 191

R v Walker (unreported, Chateris DCJ. NSW District Court, 30 January 2015)

R v Wallis [2016] NSWDC 94

Restos v R [2006] NSWCCA 85

The Queen v Pham [2015] HCA 39; 256 CLR 550

Valsamakis v R [2016] NSWCCA 156

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

Xiao v R [2018] NSWCCA 4; 96 NSWLR 1

Commonwealth Director of Public Prosecutions (Crown)

1. On 5 July 2018, Alexander Bryan Gillett (the offender) pleaded guilty to an offence of abuse of public office contrary to s 142.2(1) of the Criminal Code Act 1995 (Cth).

2. The maximum penalty for the offence is five years of imprisonment.

3. The agreed facts are set out in the Statement of Facts, which formed part of Exhibit 1. The following is a brief summary of those facts.

4. On six occasions between 21 August 2008 and 20 March 2009, while posted to Japan as the Royal Australian Navy (RAN) Liaison Officer to the United States Navy Seventh Fleet (C7F)(RAN C7F LO), the offender provided C7F shipping schedules to Leonard Francis, Executive Chairman and President of Glenn Defence Marine Asia (GDMA). The offender engaged in this conduct with the intention of receiving free meals, accommodation, alcoholic beverages, and other entertainment provided by Mr Francis.

5. The offender was aware that he was not authorised to provide shipping schedules to Mr Francis, and that by doing so, he was doing the wrong thing. The offender took steps to conceal his conduct. The defendant was aware that he was required to report any misconduct that came to his attention during his posting, and did not report either his own conduct or that of US Navy personnel involved in misconduct related to Mr Francis.

6. Between 11 November 2007 and 10 January 2010, the offender was posted aboard the US Navy Ship, the USS Blue Ridge, in the position of RAN C7F LO. While in this position, the defendant was a Commonwealth Public Official. The defendant was a paid member of the Australian Defence Force (ADF), and was required to comply with the laws, behaviours and standards of applicable to his position as an ADF and RAN officer, and to comply with US Navy laws, behaviours and standards.

7. During the first 7-8 months of the offender's posting, he became aware that US Naval personnel, including US Navy Officer, Lieutenant Commander Steven Shedd were providing sensitive information, including shipping schedules, to Mr Francis, so that GDMA could gain a competitive advantage in tendering to provide port services to the C7F. When Mr Shedd left the C7F, the offender began providing shipping information to Mr Francis in his place.

8. In 2016, US authorities referred allegations regarding the offender's misconduct to the Australian Federal Police. On 1 November 2016, the defendant participated in a recorded interview (ROI). The defendant admitted to providing Mr Francis with shipping schedules for the C7F on six separate occasions, in return for meals, accommodation, drinks and other entertainment. The offender stated that Mr Francis provided this to him and others in order to buy influence and access to information.

9. The following material is before me in relation to the offender:

(a) Tabs 1-12 (excluding the Victim Impact Statement) of the Crown Tender Bundle (Exhibit 1), containing

• (i) A Bench Sheet from the Magistrate's Court;
• (ii) An agreed statement of facts;
• (iii) A statement of Tim Gellel dated 13 April 2017;
• (iv) A transcript of the offender's ROI;
• (v) Six sets of emails relating to each of the six occasions referred to in the ROI; and
• (vi) A pre-sentence report (PSR);

(b) A Defence Tender Bundle, containing nine references, and a commendation dated 8 December 2011 (Exhibit 2).

(c) Statements of Christopher Charles Watson, Chris Gudgin and Leon Newman (Exhibit 3).

(d) A calculation of the range of expenses Mr Francis spent on the offender at the Shangri-La Hotels during the offending period (calculated to be between $6,190.11 and $6,976.99) (Exhibit 4).

(e) An Intensive Corrections Order Assessment Report (Exhibit 5).

(f) A letter under the hand of Assistant US Attorney Robert S. Huie of the US Department of Justice (Exhibit 6); and

(g) A Victim Impact Statement (Exhibit 7).

10. The offender also gave evidence at the sentence hearings on both 31 August 2018 and 14 December 2018.

11. At the sentence hearing on 14 December 2018, the prosecution tendered a victim impact statement (VIS) under the hand of Vice Admiral Michael Noonan AO, Chief of Navy Australia. The VIS includes the impact that the offending has had on the Department of Defence and the Royal Australian Navy, and concludes with this statement:

Most importantly, these incidents are likely to have harmed the reputation of the Australian Defence Force and Navy with the United States Military. Our most important strategic partner.

12. The prosecution submitted that the offending in this case was a serious example of the offence. The prosecution submitted that the offending took place over a significant period of time, being six separate offences between August 2008 and March 2009. The prosecution submitted that the offending was planned as part of a wider organised scheme involving others, and was not spontaneous. Further, the prosecution submitted that the offending constituted a significant breach of trust that had been placed on the offender as a representative of Australia on secondment with an ally overseas. The prosecution submitted that the information disclosed was confidential and classified, and created risks to fleet security and safety of the US Navy fleet. The prosecution further submitted that the offender attempted to cover up the conduct by using an external email address to send the information.

13. The prosecution further submitted that the offender's position as an experienced officer, who had served in the ADF for 11 years prior to being seconded to the Seventh Fleet, increased the seriousness of the offending.

14. The prosecution submitted that the value of the benefits received is unclear, but that offences of this type need not involve large monetary amounts to be serious: R v Wallis [2016] NSWDC 94; Hughes v R [2014] NSWCCA 15.

15. Counsel for the offender submitted that objectively the offence was serious.

16. In my view the offence was serious and I accept the prosecution and defence submissions in this regard.

17. The offender provided several explanations for his offending: first, that he did "not know who to speak to about his concerns", and second, that he "feared possible retribution". The prosecution submitted that these explanations ought to be rejected.

18. Counsel for the offender submitted that the offender's evidence given in Court has been tested at length, and that I could be satisfied that the offender was "frank" in his admissions as to why he engaged in the offending, and why he did not report the offending. Further, counsel for the offender submitted that the explanation should be given significant weight, given that he was introduced to the scheme by members of the US Navy, including his supervising officer.

19. I formed the view that the offender was sincere and truthful in his evidence before me and subjectively held these beliefs. Nevertheless I accept the prosecution submission that objectively there were avenues available for the offender to express his concerns.

20. In evidence before me was a PSR for the offender, as well as an Intensive Corrections Order Assessment Report (ICOAR).

21. The offender is a 40 year old man born in Sydney NSW. He reports being brought up in a loving and supportive environment. He is married with two children aged nine and six years old, and lives with his family in a free standing house he purchased with his wife in Canberra. Further, in the PSR, the offender's wife pledged continued support for her husband.

22. The offender has a number of tertiary qualifications, including a Bachelors and a Masters degree. The offender is currently studying a Graduate Diploma of Business via correspondence.

23. The offender was employed by the Department of Defence for 21 years prior to resigning over the current matters before the Court. He was unemployed for nine months until October 2017. He is currently employed as a project manager, however, due to the offences before the Court, his employment status has been changed to that of a contractor.

24. The report indicates that the offender has a strong personal support network. The offender is actively involved in the extracurricular activities of his children, and is also the vice president of a local sports club.

25. The offender has not been diagnosed with any mental health conditions, but has reported stress like symptoms as a result of the current Court matters, and has considered obtaining professional assistance.

26. The offender agreed with the Statement of Facts, he added that he accepts accountability for his offence and that he was embarrassed and ashamed by his actions. He stated he ceased the illegal activities prior to being caught as he knew it was wrong. The offender stated that he had cooperated with investigations since being charged with the current offence and added that he had also offered to assist the United States Navy with their inquiries. The offender was able to identify potential victims.

Mr Gillett presented as an intelligent man with strong moral values and an extensive pro support network. This is demonstrated by his employment and study history, as well as his strong familial support. He also appears to have few risk factors, with no substance misuse problems or identified mental health issues.

Due to Mr Gillett's protective factors, and limited risk factors as previously noted, he is considered as a low risk of reoffending.

28. Counsel for the offender submitted that the offender made full admissions to the offences within hours of being initially investigated, and that he pleaded guilty at the earliest possible opportunity. The PSR indicates that the offender accepts accountability for his offence, and that he was embarrassed and ashamed by his actions. Further, the offender gave evidence of his remorse before me on 31 August 2018. I accept that the offender is remorseful and as stated at [19], I formed the view that the offender was truthful in his evidence before me

29. In evidence before me were nine references in support of the offender, and a certificate of commendation.

30. His employer wrote a supportive reference, including the following:

When the events of his time while posted on the US Navy Ship, the USS Blue Ridge in the position of Liaison Officer came to light, Alex was very open in his discussion with me and his disclosure of the events. He spoke of the impact this indiscretion had had on him as a person, his response to addressing the reasons why he acted the way he did and he was reflective in respect to his inability to speak up against the culture of the US Navy and these specific activities.

From our conversations, it appears Alex has been very affected by this period of his career and without external prompting, it has motivated him to address these shortcomings and undergo counselling to ensure he is committed to, and lives an upstanding and ethical life.

31. A Vice Admiral also provided a supportive reference, including the following:

I was shocked to find out that Alex was alleged to be involved in this case. I have always found him to be a role model for our Navy Values and it took me a few days to process what he had told me because it was so out of character from everything I knew of him. In all our dealings I had found him honest and utterly trustworthy, someone who operated within the rules and cared for the sailors under his charge.

He asked to come and see me in early 2017 and let me know about the allegations. He was visibly distraught in telling the story, something he was clearly not proud of and deeply embarrassed by. What struck me was the way, as he always had in the past, that he accepted accountability for his actions. He did not try and make excuses or blame others, he knew that what he had done was wrong and it was clear to me that he was deeply remorseful for his actions given the implications for himself, his family, his career and the organisation that he loved so much.

He has already lost his naval career as a result, a career I have no doubt would have involved command and more senior appointments. I know this loss bears heavily on him as does the potential impact on his wife and young family.

32. A friend of 15 years standing also provided a supportive reference, including the following:

Alex informed me in early 2017 that he was facing charges relating to his activities while posted to Japan. We discussed this in depth, and he was very forthright, and took full ownership of his actions and the events that had occurred and what may happen as a result of his actions. I noted that he was extremely remorseful, and in particular he was regretting the situation he had put his family in. During our discussion he was acutely aware that his actions, while posted to Japan, had sacrificed what was potentially a very successful military career. His body language and his emotional state during our conversation in early 2017, and in subsequent conversations since have convinced me that he has genuine remorse. It is clearly evident that his actions during that period continue to weigh heavily on his mind, and that he carries an extreme level of guilt. This is evidenced by the fact that he used to be quite an outgoing and socially active person, but now he has withdrawn from a lot of his previous social networks. I believe he is embarrassed by what he has done in Japan, and is concerned what others may think of him as a result of those indiscretions.

33. A friend who has known the offender for 21 years, and who is also a close friend of his wife, similarly provided a supportive reference, including the following:

Both Alex and Linda were selected to undertake the [Australian Command and Staff Course (ACSC)] in 2015, however Alex recognised that both undertaking this course at the same time was going to be a very difficult undertaking. He therefore delayed his attendance on the course until the following year; this was a selfless act on his behalf as it had the potential to delay his career, but he recognised that Linda had sacrificed a great deal in her career up until that point to enable his progression and that it was her opportunity to progress further in the army.

Despite delaying his attendance on the ACSC Alex was still selected for promotion in Commander in January 2016; at the time it was unusual for people to be promoted immediately prior to attending ACSC. I think this is again a reflection of Alex's professionalism and high-performance. I do believe that Alex was on a pathway to become a member of Navy's Senior Leadership Group and that he had been on this pathway before his posting to Japan.

34. A friend of five years standing also provided a supportive reference, including the following:

In my discussions with Alex on this matter I have been struck by the depth of his remorse. He clearly understands the betrayal of the trust placed in him by the Royal Australian Navy and the people of Australia and how this has impacted both.

35. Additionally, there was a supportive reference from a family friend who has known the offender since 1980, and included the following:

As an former ecclesiastical leader and through my long association with Alexander, I can see that this behaviour is not consistent with Alexander's character. However, in discussion with him he has indicated that this event in his life, he deeply regrets, and indeed is very remorseful of his actions.

36. Further there was another supportive reference from a family friend who has known him since 1986 the reference including the following

Alexander has discussed the charges with me and has expressed his very deep remorse for his actions not only has he lost his career in the Army which he has aspired to since being a teenager he feels that he has betrayed the trust of his employer as well as a family and friends he feels as though he has let everyone down he knows that what he did was wrong and deeply regrets this and is willing to confront and face the consequences

37. Finally, there was a letter from the Assistant Minister for Defence in 2015 congratulating the offender on his appointment as a Trustee of the Royal Australian Navy Relief Trust Fund and a letter from the Department of Defence dated 2009 relating to "outstanding performance of duties" in Japan.

38. Also exhibited before me was a Royal Australian Navy commendation dated 8 December 2011, wherein the offender was commended for tireless and exemplary performance in carrying out his responsibilities as the Officer in Charge of the ANZAC Class Frigate Support Team, and included the following:

Your relentless efforts in establishing and improving the ANZAC Class Frigate Support Team have ensure the safe and effective custody of the two ANZAC class ships in your care. You facilitated the success of the extended readiness concept despite facing enormous resource challenges. The leadership and foresight exhibited in dealing with dynamic and often complex challenges has been exceptional. You have accepted responsibility with enthusiasm and loyalty and have made a significant contribution to Navy.

Your outstanding professionalism and achievements embrace Navy's core values and Signature Behaviours, are of the highest order and the finest traditions of the Royal Australian Navy.

40. I take these references into account on sentence.

41. The offender has no criminal history either before or since the offending, and is of otherwise good character, as attested to by his referees.

42. The prosecution submitted that the offender's prior good character should be given little weight as the offence is frequently committed by those of otherwise good character, and the offender's prior good character enabled him to gain the position where the offence could be committed: see R v Kennedy [2000] NSWCCA 527; R v Combo [2015] WASCA 34 (Combo), R v Wallis [2016] NSWDC 94 (Wallis)

43. In accordance with the authorities I do not accord significant weight to the offender's otherwise good character.

44. The offending in this case occurred between August 2008 and March 2009, but was not detected until 2016. The prosecution submitted that there should not be any significant discount for delay, given that the delay was a result of the offending behaviour being kept hidden by the offender, despite being required to report any misconduct that came to his attention: see R v Hathaway [2005] NSWCCA 368.

45. Counsel for the offender submitted that there was a significant delay between the offender in November 2016 making full admissions to his conduct, and being summonsed before the Court in June of 2018, a period of approximately 18 months.

46. In accordance with the authorities, I take into account only the period of 18 months of delay.

47. In sentencing for Commonwealth offences, a plea of guilty may be taken into account in mitigation of a sentence only where it is evidence of some remorse on the part of the offender, it indicates an acceptance of responsibility, or it shows a willingness to facilitate the course of justice: see Cameron v The Queen [2002] HCA 6; 209 CLR 339 at [11]- [15] (Gaudron, Gummow and Callinan JJ). The prosecution further submitted that in sentencing for Commonwealth offences, the Court is not permitted to reduce a sentence on account of the utilitarian value of any plea: see R v Harrington [2016] ACTCA 10; 11 ACTLR 215 at [38] (Murrell CJ); at [132] (Refshauge ACJ and Gilmour J); cf DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237; Xiao v R [2018] NSWCCA 4; 96 NSWLR 1.

48. Counsel for the offender submitted that the plea of guilty was at the earliest opportunity and submitted that along with the undertaking to give further assistance, the discount would be at the upper end of the spectrum for available discounts.

49. In my view, a discount of 25% is appropriate in light of the offender's willingness to facilitate the course of justice.

50. In sentencing for Commonwealth offences, the Court is able to consider the extent of past and future co-operation with law enforcement agencies in the investigation of the offence or other offences. "Offence" is defined by s 16 of the Crimes Act 1914 (Cth) (the Crimes Act) to be a "federal offence, a state offence or a Territory offence". The prosecution submitted that past co-operation with overseas authorities may be considered by the court under s 16A(2) as one of "any other matter[s]". The Court is not required to identify a specific discount for past co-operation, and should take the extent of any past co-operation into account as part of the instinctive synthesis of all relevant matters: R v Gladowski [2000] QCA 352; 115 A Crim R 446 at [11].

51. In relation to future co-operation with overseas authorities, the prosecution submitted that this could also be taken into account pursuant to s 16A(2) of the Crimes Act. Though not required by legislation, the prosecution submitted that it is "highly desirable practice" for a sentencing judge to "indicate what sentence would have been imposed if a special discount" for future co-operation had not been allowed: R v J [1992] SASC 3639; (1992) 59 SASR 145 at 153. Thus, the prosecution submitted that the procedure set out in s 16AC of the Crimes Act for future co-operation with domestic authorities may be followed, notwithstanding the fact that it is not applicable to this case.

52. At the sentence hearing on 31 August 2018, I adjourned the proceedings to allow for the preparation of an Intensive Corrections Order report, as well as to allow the offender to travel to the United States to provide assistance to the US Department of Justice in person. Exhibit 6, which is a letter under the hand of Assistant US Attorney Robert S. Huie, indicates that the offender met with US Defense Criminal Investigative Service and Naval Criminal Investigative Service agents on 4 and 5 December 2018 in connection with ongoing prosecutions in a US Navy bribery matter. The witness proofing lasted approximately 10 hours in total. The letter indicates that the offender's participation in these meetings was helpful, and that the offender is willing to testify at trial in the United States if asked to do so.

53. I will take this past co-operation into account on sentence.

54. The offender gave an undertaking in Court on 14 December 2018 to attend and give evidence at any trial in the United States if subpoenaed, and to cooperate in that process.

55. It is appropriate in this case to give a discount of 15% in relation to the undertaking to provide future co-operation.

56. The offender has spent no time in custody referable to this offence.

57. Counsel for the offender submitted that the offender has lost his Navy career and reputation as a result of the offences, and while he has been able to gain further employment, that this has been curtailed to contract work only, meaning he is unable to earn employer contributions to superannuation, and paid leave.

58. The prosecution submitted that where an offender's employment is terminated because of an abuse of that position, the loss of employment should be given little weight in sentencing: R v TA [2003] NSWCCA 191.

59. In accordance with the relevant authorities in this area, I do not accord significant weight to this factor.

60. When this matter originally came before me on 31 August 2018, I determined that I should give serious consideration to the sentence being served by way of Intensive Corrections Order (ICO). To that end I referred the offender for assessment.

61. The assessment comprised six interviews with the offender, an interview with the offender's partner, an interview with the offender's employer, and the perusal of Court Documents, ACT Corrective Services files and records, an ACT Health Information letter dated 2 August 2018, A Revised Level of Service Inventory, and Alcohol Use Disorder Identification Test, a Drug Abuse Screening Tool and a Corrections Victoria Treatment readiness questionnaire.

62. The report states that there were no issues with the offender's engagement for the preparation of the report. The ICO report confirmed the information already provided to the court in the PSR.

63. The ICO Assessment Report dated 30 November 2018 concludes with a recommendation the offender has been assessed as suitable for an ICO.

64. An ICO is an available sentencing option by virtue of s 20AB of the Crimes Act. I also note that both the prosecution and counsel for the offender provided submissions confirming that the offender, if sentenced to an ICO, is able to seek the "written approval" of the Sentence Administration Board to travel overseas in order to provide co-operation to US authorities: s 42(1)(h) of the Crimes (Sentence Administration) Act 2005 (ACT).

65. The prosecution referred me to a number of cases as "yardsticks" consistent with the High Court's decision in Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili).

66. In R v Allan; Ex Parte Commonwealth DPP [2016] QCA 270 (Allan), the offender was employed as a visa processing officer at the Department of Immigration and Border Protection. Between 1 June 2013 and 31 March 2014, the offender unlawfully approved visas for 59 people, and received $563,290.00 in bribes from a co-offender. The offender pleaded guilty at an early stage, was of prior good character, remorseful, and was "extremely cooperative" with authorities. At first instance, the offender was sentenced to 18 months of imprisonment for the offence of abuse of public office, and two years of imprisonment for the offence of receiving a bribe, with the offender to be released after serving 8 months of imprisonment on a recognizance release order in the sum of $1000, conditioned that he be of good behaviour for four years. On appeal, the Queensland Court of Appeal found the sentence at first instance to be manifestly inadequate, and re-sentenced the offender to 2 years of imprisonment for the offence of abuse of public office, and 2 years 6 months of imprisonment for the offence of receiving a bribe, with the offender to be released after serving 15 months on a recognizance release order in the sum of $1000.00.

67. In Valsamakis v R [2016] NSWCCA 156, the offender was employed as a Customs and Border Protection Officer at Sydney International Airport. The offender pleaded guilty to one count of conspiracy to import a commercial quantity of border controlled precursor (pseudoephedrine), one count of bribery of a Commonwealth public official, and two counts of official abuse of office to gain advantage. The offender and two co-offenders conspired to import pure pseudoephedrine into Australia for the purpose of being manufactured into methylamphetamine. The offender was married with two children, one of whom was diagnosed with a birth defect and suffered separation anxiety as a result of the offender's incarceration. The offender had no criminal history but the sentencing judge considered prior good character was of little weight as a mitigating factor, as his prior good character was necessary for gaining his employment. The offender also surrendered some proceeds of the conspiracy, indicating contrition and remorse, and provided assistance to authorities. The offender was sentenced to a total of 9 years of imprisonment, including 18 months of imprisonment and 9 months of imprisonment for the two abuse of office charges respectively. The New South Wales Court of Criminal Appeal dismissed a defence appeal of the sentence.

68. In Combo, the first co-offender was the CEO of the Nooda Ngulegoo Aboriginal Corporation, a service provider for the Community Development Employment Project (CDEP), funded by the then Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs. The second co-offender was a director of a number of companies, one of which was Safenet Services Pty Ltd. The co-offenders reached an agreement where the second respondent would submit false invoices to the corporation which the first respondent would endorse for payment from the CDEP funding. The first co-offender received $84,500 of the money received, and the second co-offender received $81,500. The first co-offender pleaded guilty to an offence of abuse of public office, and the second co-offender pleaded guilty to an offence of aiding and abetting the first respondent's abuse of public office. The sentencing judge considered the co-offender's culpability to be equivalent, and that general deterrence should be given more weight than to matters personal to the offenders. The sentencing judge sentenced the first co-offender to 16 months of imprisonment, suspended immediately on a recognizance release order in the sum of $1,000, on condition that he be of good behaviour for 16 months; and the second co-offender to 13 months of imprisonment, suspended immediately on a recognizance release order in the sum of $1,000 on condition that he be of good behaviour for 13 months. On appeal from the prosecution, the Western Australian Court of Appeal found that the sentencing judge erred in his approach to comparative sentences and erred in imposing a wholly non-custodial sentence on both offenders. The Court of Appeal resentenced the first co-offender to 16 months of imprisonment, to be released after serving 8 months on a recognizance release order, and resentenced the second co-offender to 10 months of imprisonment, released after serving 5 months on a recognizance release order.

69. In R v Joubert (unreported, Barr J, NT Supreme Court, 10 May 2016), the offender was a bookkeeper for the Central Australian Stolen Generation and Families Aboriginal Corporation. The offender transferred funds over a three year period from the corporation's accounts into his own personal account, to a total of $230,552.42. The offender was charged with five counts of abuse of public office as a result. The offender was remorseful, and cooperated in relation to the Commonwealth offences. The offender was a pathological gambler, but the Court found that this provided only limited mitigation for the offending. The offender was sentenced to an aggregate sentence of 3 years and 9 months of imprisonment. The Court declined to fix a nonparole period or to make a recognizance release order pursuant to s 19AB(3) of the Crimes Act.

70. In CDPP v Hill & Kamay [2015] VSC 86, the first co-offender worked as an analyst at the Australian Bureau of Statistics (ABS). On 24 separate occasions over a period of 8 months, the first co-offender accessed the ABS database and provided confidential information to the second co-offender to use in FX contract trading. The second co-offender made a profit of over $8,000,000, and the first co-offender received $19,500, but intended to receive $50,000. The first co-offender was charged with four counts of abuse of public office, one count of identity theft and one count of insider trading. For each of the counts of abuse of public office, the offender was sentenced to a term of 2 years and 9 months of imprisonment, to be served wholly concurrently. The total term of imprisonment was 3 years and 3 months, with a non-parole period of 2 months. The second co-offender was not charged with offences of abuse of public office.

71. In Wallis, the offender was a Protective Service Officer with the Australian Federal Police. The offender was charged with one count of abuse of public office, one count of making a record of prescribed information, one count of divulging or communicating prescribed information, two counts of trafficking in a controlled drug, one count of theft and one count of possessing a controlled drug. The offender unlawfully accessed and disclosed information on the AFP Police Real-Time Online Management of Information System between 3 and 16 September 2015. The police, during an execution of a search warrant, located drugs and drug paraphernalia, as well as electronic items and a number of other items belonging to the AFP. The offences were found to be serious offences, and the offender was found to be genuinely remorseful. The offender was found to be of good character, but the sentencing remarks make clear that this is to be balanced by the fact that his prior good character allowed him to gain a position of authority and trust. The offender was sentenced to six months of imprisonment and a recognizance release order for three months (a total term of nine months) for the offence of abuse of public office. The total sentence for the offences was 12 months of imprisonment, followed by a recognizance release order for a period of 8 months.

72. In R v Walker (unreported, Chateris DCJ. NSW District Court, 30 January 2015) (Walker), the offender and his co-offender (see R v Sheridan (unreported, Chateris DCJ, NSW District Court, 27 October 2014) (Sheridan) below) were employed at the Australian Customs and Border Protection Service at the Sydney International Airport. The offender provided importation methodology between 8 December 2012 and about 22 March 2013 in order to minimise the risk that a courier or importer of Hygetropin could be detected. The offender was charged with one count of conspiracy to import Tier 1 goods (Hygetropin), and one count of abuse of public office. The offences were observed to be serious. The offender had no criminal history, was married with two children, and suffered from anxiety and depression, which were taken into account on sentencing. The offender's conduct was considered to be less serious than that of his co-offender. The offender was sentenced to 14 months of imprisonment for the charge of abuse of public office, to be served concurrently with a sentence of 10 months of imprisonment for conspiracy to import Tier 1 goods, with an order that the offender be released after serving 6 months on a recognizance release order on condition of being of good behaviour for 2 years.

73. In Sheridan, the factual circumstances and charges were the same as those in Walker. The offender intended that the criminal enterprise would be ongoing. The offender showed remorse and had no criminal history. The offender lived with his mother, who has breast cancer (in remission). The offender was sentenced to 21 months of imprisonment for the charge of abuse of public office, to be served concurrently with a sentence of 15 months of imprisonment for conspiracy to import Tier 1 goods (Hygetropin). The offender was ordered to serve a minimum of 12 months of imprisonment, and thereafter be released on a recognizance release order, and to be of good behaviour for 3 years.

74. In R v Colakovic (unreported, Sorby J, NSW District Court, 24 April 2014), the offender was charged with one count of receiving a corrupting benefit, one count of abuse of public office, and one count of dishonestly influencing a Commonwealth public official. The offender was employed at the Australian Quarantine Inspection Service in a cargo entry management position. The first charge relates to the clearance of 10 Disney on Ice containers without sending them for a customs inspection. In exchange, the offender was provided with up to 6 Disney on Ice tickets. The abuse of public office charge relates to the provision of information to a third party about the status of a certain container containing safrole, although no personal gain and no adverse consequences arose from the disclosure. Charge 3 related to an attempt to clear a shipment and avoid costs for a friend of her sister. The offending was found to be at a low end of the scale for such offences, and the offender's guilty plea was found to reflect remorse. The offender had no criminal history, and was a divorced single mother of two children. The offender was found to be unlikely to offend in this way again. The offender was sentenced to 14 months imprisonment for the charge of abuse of public office, but was released forthwith on a recognizance release order on condition that she be of good behaviour for 14 months. The offender entered into good behaviour orders for the remaining offences.

75. In DPP v Roper (unreported, Judge Gullaci, Victorian County Court, 19 March 2012), the offender was found guilty at trial of one count of dishonestly asking for a benefit, one count of dishonestly receiving a benefit, and one count of abuse of public office. In addition, the offender pleaded guilty to a further count of dishonestly receiving a benefit, and one count of abuse of public office. The offender, in his capacity as an ATO Excise Officer, formed a corrupt relationship with illegal tobacco dealers and in return for benefits provided to him. The offender entered a late plea of guilty, but was found to be of prior good character. A significant delay of many years was a significant mitigating factor, and the offender and his family suffered stress and anxiety due to the delay. The offender was sentenced to six months of imprisonment for the offence of abuse of public office. The total sentence was 29 months of imprisonment, with the offender to be released after serving 14 months on a recognizance release order for a period of 2 years.

76. In R v Kerr (unreported, Kennedy CJDC, WA District Court, 26 April 2005), the offender pleaded guilty to nine counts of abuse of public office. The offender was employed by a private firm to provide services to the Aboriginal and Torres Strait Islander Commission (ATSIC). She held the position of client manager with respect to ATSIC and was responsible for awarding contracts for maintenance work to be carried out throughout Western Australia. The offending involved a sustained course of conduct over a long period of time. The offender awarded contracts to her husband without obtaining quotes from other tradesmen in breach of standard procedures. The offender pleaded guilty, was remorseful, and had no prior convictions. The offender suffered from psychological issues, and was the mother of three children. On each count, the offender was sentenced to 18 months imprisonment, to be released on a recognizance release order after serving 9 months of imprisonment, on condition that she be of good behaviour for 9 months.

77. As with every sentencing exercise, careful attention must be paid to the maximum penalty which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

78. When sentencing offenders for offences against the laws of the Commonwealth, I am bound to apply the provisions of Part IB of the Crimes Act, as well as some common law principles of sentencing, including proportionality: see Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58; Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638.

79. State and Territory sentencing laws operate only so far as they are applicable and the laws of the Commonwealth do not otherwise provide. They are excluded where applicable Commonwealth sentencing laws leave no room for their application: see The Queen v Pham [2015] HCA 39; 256 CLR 550 (Pham).

80. The court sentences in the context of section 16A of the Crimes Act, which pertains to matters which the court is to have regard when passing a sentence. I have taken into account those matters under s 16A(2) that are relevant to the offender's sentence.

81. In determining a sentence, the Court is required to impose a sentence of appropriate severity in all the circumstances of the offence: s 16A(1) of the Crimes Act.

82. In the case of federal offences, it is implicit in Part IB of the Crimes Act that I must have regard to current sentencing practices throughout the Commonwealth: see Pham at [18]; [23]-[24]. Regard must be had to sentencing decisions of intermediate appellate courts in comparable cases as "yardsticks" that may serve to illustrate but not define the possible range of sentences available: see Pham at [29]; Hili at [53]-[54].

83. Counsel for the offender submitted that general deterrence (s 16A(2)(j)) need not be given great weight as a sentencing consideration given the somewhat unique factual circumstances of the offending. The prosecution submitted that general deterrence of the "utmost importance" in sentencing for the offence of abuse of public office: see Allan, R v Nath [1994] SASC 5144; (1994) 74 A Crim R 115; Restos v R [2006] NSWCCA 85; R v Bartels [2018] SASCFC 34; Sheridan. In my view, general deterrence must be given significant weight.

84. Counsel for the offender further submitted that specific deterrence (s 16A(2)(j)) need not be given great weight given the demonstrated rehabilitation of the offender (s 16A(2)(n)), and his continuing assistance to authorities as discussed above. In my view it is clear that specific deterrence is not a significant factor in this case.

85. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. Rehabilitation is also an important consideration having regard to the offender's remorse and otherwise good character.

86. The sentencing process also requires an examination of s 16E of the Crimes Act and alternatives to full-time imprisonment. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of ICO.

87. It must be recognised that the offence has had an impact upon the Navy: see for example R v Obeid (No 12) [2016] NSWSC 1815 as to institutions and public confidence in them.

88. Both parties accept that the offender must receive a sentence of imprisonment. The issue is the length of the sentence and whether it is essential that it be served by way of full-time imprisonment or whether it can be served by way of ICO.

89. The prosecution submitted that a period of full-time imprisonment is called for. The offender's plea of guilty, his remorse, his suitability for an ICO, his excellent prospects for rehabilitation, and his assistance to authorities, point in a direction other than a term of imprisonment served by way of full time custody.

90. Relevantly, as I stated in R v Bandy [2018] ACTSC 261 at [108], in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions:

The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

91. It is well to underline at this juncture that where two highly relevant considerations are incompatible, it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative: see for example R v Hopkins [2004] NSWCCA 105.

92. As stated by Mahoney ACJ in R v Lattouf (Unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J and Adams AJ, 12 December 1996):

There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it ... But there are other interests to which the sentencing process must have regard; these are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case.

93. Sentencing must always deliver individualised justice. An approach that would dictate gaol to be served by way of full time custody in every case is anathema to individualised justice. There will be exceptions to the necessity for full-time custody. In coming to a conclusion, by way of instinctive synthesis, I have taken into account all the matters discussed above including the objective seriousness of the offence, the offender's early plea of guilty, his remorse as expressed in his evidence before me, the ICO report, his excellent prospects for rehabilitation, and his assistance to authorities.

94. In my view the recommendation in the ICO assessment report should be taken up. An ICO ought to be imposed. It must be remembered that although the imposition of an ICO involves a degree of leniency, it is not a lenient sentence and is considered to be "a significant punishment, coming second only to a term of full-time imprisonment": R v Srna [2018] ACTSC 337 at [13]. Its content will require strict adherence and if this is not followed could result in a period of full-time custody.

95. The starting point for this offence is a term of imprisonment of 36 months. The sentence will therefore be reduced by 25% for the plea of guilty, resulting in a sentence of 27 months, and a further 15% for the future co-operation with law enforcement authorities in the United States. That arrives at a sentence of 23 months of imprisonment.

96. As stated above, the sentence will be served by way of ICO.

(a) I record convictions for the offence;

(b) For the offence of abuse of public office (CC18/40734), the offender is sentenced to 23 months of imprisonment from 14 February 2019 to 13 January 2021;

(c) The sentence is to be served by way of an Intensive Corrections Order pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT), by way of s 20AB(1AA)(a)(ix) of the Crimes Act 1914 (Cth). I impose the core conditions. I impose the following additional condition:

• (i) That the offender perform 150 hours of community service within 23 months.

I certify that the preceding ninety-seven [97] numbered paragraphs are a true copy of the Reasons for Sentence Judgment of her Honour Justice Loukas-Karlsson.