he knowingly obtained protected information contrary to s.1312A

of the Social Security Act 1991 (C'wealth);

he directly disclosed to another person protected information

contrary to s.1312B of that Act;

he attempted to knowingly obtain protected information contrary

to s.1312A of the Act; and

being a Commonwealth officer he received a benefit, namely

money, for himself on the understanding that his duty or

authority as a Commonwealth officer would be influenced or

affected - contrary to s.73(2) of the Crimes Act 1914

(C'wealth).

He was sentenced to twelve months' imprisonment on each charge and pursuant to s.20(1)(b) of the Crimes Act it was ordered that he be released forthwith upon his entering a recognisance in the sum of $500 on condition that he be of good behaviour for twelve months.

2. The Director of Public Prosecutions for the Commonwealth now appeals against that sentence, contending that the sentence imposed is manifestly inadequate having regard to all the circumstances of the case and that a different sentence should have been passed. Two other grounds were set out in the notice of appeal and, although separately argued, I am of the view that in the end they do little more than amplify the basis on which it was contended that the sentence was manifestly inadequate.

3. The respondent, who is now aged 49, was employed at the Department of Social Security from April 1986. During the period in which he committed the offences with which he was charged, he was employed in the Teleservice Centre of the Geelong branch of the department. His primary duty was to supervise staff employed to answer telephone enquiries from the whole of country Victoria and several metropolitan social security offices. For the purposes of his duties he was able to gain direct access to the department's records of its clients held in the department's computer. These records are confidential and, as might be expected, from time to time the department gave written and other instructions to its employees about their responsibilities in relation to client records and in particular the need to keep them confidential. The respondent had attended a training programme about these matters in November 1992, shortly before the offending with which he was charged began.

4. As a result of an anonymous complaint made in September 1993, the department investigated whether the respondent was obtaining unauthorised access to client records. Those enquiries showed that between October 1993 and May 1994 he had obtained unauthorised access to 126 individual client records and that he tried (without success) to seek information about another 16 individuals.

5. When interviewed by officers of the Australian Federal Police in May 1994, the respondent made full admissions of what he had done. He admitted that he had sought client information stored in the department's computer and said that he had done so at the request of a man called Belden, who was the principal of a private investigation business called Asset Recovery and Investigation. The respondent said that he had provided information to Belden up to "a couple of times a week" and that he had been paid $5 or $10 for each name which he investigated, usually in cash. He said to the police that he had been doing this for twelve or thirteen months.

6. The respondent made two later statements to the Australian Federal Police and it emerged from those statements, coupled with other investigations that were made, that Belden had deposited a total of more than $4,400 to bank accounts of the respondent and that the respondent had retained 14 lists of names which Belden had asked him to search. Those lists contained over 300 names. The respondent said in his record of interview with police that he agreed to provide confidential information to Belden because he needed the money since "travelling down to the Geelong Teleservice Centre was sending (him) broke".

7. In the course of the hearing of the appeal before us it was put on behalf of the Crown (and not disputed on behalf of the respondent) that in truth the respondent may have received more than $4,500 - somewhere between $4,500 and $10,000, representing his gaining access without authority to records relating to as many as 1300 or 1400 people.

8. The respondent pleaded guilty at a committal mention in the Magistrates' Court in November 1994 and he has consistently maintained that plea since that hearing. In his statements and in the course of the plea in mitigation at the time of his sentence he has indicated a willingness to give evidence against Belden. He has not yet been called on to do that, Belden having been committed for trial but not yet tried. The respondent has no prior convictions.

9. It was submitted on behalf of the Director of Public Prosecutions, both before the learned sentencing judge and here, that the offences of which the respondent is guilty are such as to require a period of immediate incarceration. Thus, although there are significant mitigating features which tell in favour of the respondent, including his age, his good character, his plea of guilty, his willingness to give evidence against Belden and other matters to which the learned sentencing judge referred, it was submitted on behalf of the Director that in cases of this nature, which exhibit a most serious breach of trust, it should only be an exceptional case that warrants a penalty or sentence that does not involve a period of actual incarceration. It was submitted on behalf of the Director that this was not an exceptional case.

10. Reference was made in the course of argument to matters arising from the sentencing remarks of the learned sentencing judge which were said to exhibit specific error. Thus reference was made to the fact that, in the course of his sentencing remarks, the learned sentencing judge said:

"Over an extensive period you furnished those details in

relation to hundreds of individuals and you were paid several

thousand dollars at the rate of $5 or $10 a debtor for your

efforts."

It was submitted that in this respect the learned sentencing judge fell into error because the numbers of individuals concerned would more properly be described as many hundreds and the amount received would more properly be described as a figure greater than several thousand dollars.

11. In my view it is not demonstrated that the learned sentencing judge fell into error in describing the circumstances of the crimes to which Stockdale had pleaded guilty in the terms in which he did. In the end, the criticisms that were made of what his Honour said are, in my view, criticisms founded upon little more than a choice of words which does not reveal the learned sentencing judge proceeding from any incorrect view of the facts giving rise to the matter.

12. The learned sentencing judge indicated that, but for the willingness which Stockdale had indicated to give evidence against Belden, he would have imposed a sentence of eighteen months rather than twelve months. It was submitted on behalf of the Director that the imposition of a sentence one-third less than that which otherwise would have been imposed, on account of the prisoner's willingness to give evidence against a co-offender, was altogether too large a discount to give and one which was given in a way that was inappropriate, given the intention of the learned sentencing judge in any event to suspend the operation of the sentence of imprisonment.

13. It was put in the course of argument that there was in effect little incentive for the respondent to comply with his undertaking, constituted by the fact that a sentence of imprisonment already suspended might be suspended for a further period were he to depart from the undertaking which he had given.

14. In my view it is not demonstrated that his Honour fell into error in taking the course which he did in this respect. In any event, I am firmly of the view that neither this matter nor the other matter of asserted error on the part of the learned sentencing judge are matters which touch the principal point which the Crown sought to argue on the hearing of this appeal, namely that the sentence imposed was manifestly inadequate.

15. Counsel both for the appellant and the respondent engaged in an extensive review of a number of cases which it was said offered guidance about comparative sentences that had been imposed in cases not greatly dissimilar from that which falls for consideration now. Notwithstanding the care with which counsel took us through each of those cases, it is in my view sufficient for present purposes to say that I am of the view that each of those cases, decided as each was on its own individual facts, in the end provides little clear or direct guidance to the determination of the present matter.

16. Rather, I am of the view that it is necessary to go back to the principles which determine an appeal by the Crown - principles which have been re-stated from time to time by the High Court and which are well known. In Everett v. The Queen [1994] HCA 49; (1994) 181 CLR 295, the majority of the Court said at pp 299-300 that:

"Such a jurisdiction (a jurisdiction to grant leave to the

Attorney-General to appeal against sentence) has become

commonplace throughout this country and the common law world.

Nonetheless, in its exercise, a court of criminal appeal must,

in the absence of clear statutory direction to the contrary,

recognize that there are strong reasons why the jurisdiction

to grant leave to the Attorney-General to appeal against

sentence should be exercised only in the rare and exceptional

case. An appeal by the Crown against sentence has long been

accepted in this country as cutting across the time-honoured

concepts of criminal administration by putting in jeopardy

for the second time the freedom beyond the sentence imposed.

That being so, a 'court entrusted with the jurisdiction to

grant or refuse such leave should give careful and distinct

consideration to the question whether the Attorney-General

has discharged the onus of persuading it that the circumstances

are such as to bring the particular case within the rare

category in which a grant of leave to the Attorney-General to

appeal against sentence is justified'. In determining whether

that question should be answered in the affirmative, a court

of criminal appeal should be guided by the following comment

of Barwick CJ in Griffiths v. The Queen:

'an appeal by the Attorney-General should be a rarity, brought

only to establish some matter of principle and to afford an

opportunity for the Court of Criminal Appeal to perform its

proper function in this respect, namely, to lay down principles

for the governance and guidance of courts having the duty of

sentencing convicted persons.'

The reference to 'matter of principle' in that passage must be

understood as encompassing what is necessary to avoid the kind

of manifest inadequacy or inconsistency in sentencing standards

which Barwick CJ saw as constituting 'error in point of

principle'."

17. (It was not suggested that any different principle should be applied in this State where the appeal is as of right.)

18. Here it is contended that the sentence imposed was manifestly inadequate, presumably in the sense described by Barwick CJ in Griffiths v. The Queen [1977] HCA 44; (1977) 137 CLR 293 and 310, where he spoke of "gross departure from what might in experience be regarded as the norm" being held to be error in point of principle.

19. I do not accept that it is demonstrated that the sentence in this case is manifestly inadequate. Central to the appellant's submissions was the proposition that offences of the kind to which the respondent pleaded guilty would inevitably attract an immediate custodial penalty or, as was sometimes put in the course of argument, would inevitably attract such a penalty save in exceptional or rare circumstances.

20. In my view it is important to bear steadily in mind that each of the offences to which the accused pleaded guilty in this matter was an offence carrying a maximum penalty of no more than two years' imprisonment. To say, as was submitted on behalf of the Crown, that it should only be an exceptional case that warrants a penalty or sentence not involving a period of actual incarceration, in circumstances where the maximum penalty prescribed by Parliament is no more than two years, would in my view be to fetter the very general discretion given to a sentencing judge in ways that would be impermissible.

21. It may readily be accepted that offences of the kind to which the respondent pleaded guilty are serious offences, involving as they do a gross breach of trust for personal gain. It may also be accepted that often they are offences that will attract an immediate custodial penalty, but that falls far short of saying that that is the inevitable consequence of offending of this kind or even of saying that, save in exceptional or special circumstances, that will be the inevitable consequence. In the present case there were significant matters mitigating in favour of the accused.

22. I accept that the sentence which was imposed on this respondent was a merciful one. Nevertheless I am of the clear view that it is not shown to have fallen outside the range of sentences that might properly have been imposed. I would dismiss the appeal.

The order of the Court is -

Appeal dismissed. There will be a certificate to the respondent pursuant to