R v Lappas [2003] ACTCA 21

Court of Appeal (ACT)|2003-10-31

[2003] ACTCA 21 (31 October 2003)

CRIMINAL LAW - espionage and official secrets - Crown appeal against sentence - respondent intelligence analyst employed by Defence Intelligence Organisation - documents classified as "Top Secret" given to unauthorised person for purpose of sale to foreign power - respondent suffering from mental illness or disorder at time of commission of offences - sentencing judge imposed short terms of imprisonment on each of two counts - whether sentences ought to have been wholly concurrent - whether sentences ought to have been wholly suspended

R v Tait and Bartley (1979) 24 ALR 473 referred to

R v Osenkowski (1982) 30 SASR 212) referred to

R v Boudelah and Charlston [1991] FCA 124; (1991) 28 FCR 176 cited

R v House and Thorne [1991] FCA 126; (1991) 28 FCR 194 at 200-202 cited

R v Webster [1999] NSWCCA 313 (27 September 1999) cited

R v Ariken [1999] NSWCCA 331 (20 October 1999) cited

R v Minh Duong [1999] NSWCCA 448 (8 December 1999) cited

R v Sparos [2002] NSWCCA 52 (12 March 2002) cited

United States v Rosenberg [1952] USCA2 26; 195 F2d 583 (2d Cir 1952) referred to

R v Blake (1961) 45 Cr App R 292 referred to

Grant v Headland (1977) 17 ACTR 29 cited

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299-300 cited

R v Cobb [1999] FCA 158; (1999) 84 FCR 450 at 453 cited

House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 referred to

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672 referred to

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 334 referred to

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at par [58] referred to

R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522 cited

R v Anderson [1981] VicRp 17; [1981] VR 155 referred to

R v Man (1990) 50 A Crim R 79 referred to

Parnis v R [1993] FCA 624; (1993) 49 FCR 304 referred to

R v Tsiaris [1996] VicRp 26; [1996] 1 VR 398 referred to

R v Wright (1997) 93 A Crim R 48 referred to

R v Spiero (1981) 26 SASR 577 referred to

R v Henderson [1999] 1 VR 820 referred to

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Court of Appeal of the Australian Capital Territory

IN THE SUPREME COURT OF THE ) No. ACTCA 4 - 2003

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The sentences imposed by the learned sentencing judge, and the orders made by his Honour be set aside.

On count 1 the respondent be imprisoned for a period of 2 years;

On count 2 the respondent be imprisoned for a period of 6 months;

The sentence on count 2 commence at the expiration of 21 months from the date of the commencement of the sentence on count 1; and

The respondent be released after the expiration of 6 months imprisonment upon giving security by recognisance in the sum of $2,000 on condition that he be of good behaviour for a period of 18 months thereafter, that during that period he undergo such psychiatric treatment and counselling as he may be advised by his treating psychiatrist, and that for that period he be under the supervision of the Director of Corrective Services of the Australian Capital Territory, or a person nominated by him from time to time, for the purpose of monitoring his undergoing of such treatment.

IN THE SUPREME COURT OF THE ) No. ACTCA 4 - 2003

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. This is an appeal by the Director of Public Prosecutions (DPP) of the Commonwealth of Australia against a sentence imposed upon the respondent in the Supreme Court of the Australian Capital Territory by Gray J.

2. On the 30th day of January 2003, the respondent was convicted in consequence of a finding of guilt by a jury of an offence against s 78(1)(b) of the Crimes Act 1914 (Cth) (the Crimes Act). Count one of the indictment, in respect of which that verdict had been returned, alleged that the respondent -

... on or about 11th day of July 2000 ... for a purpose intended to be prejudicial to the safety or defence of the Commonwealth, communicated to SHERRYLL ELLEN DOWLING a document that might be directly or indirectly useful to a foreign power.

3. On 19 November 2001, the respondent had tendered a plea of guilty to an offence against s 79(3) of the Crimes Act, which constituted count four on the indictment, alleging that -

... on the 12th day of July 2000 [the respondent] communicated two prescribed documents to ... a person other than a person to whom he was authorised to communicate them.

4. Of the two other counts on the indictment, count three was an alternative to count one and, though the respondent pleaded guilty to it, it was rendered redundant by the jury's verdict on count one. It was a charge laid pursuant to s 79(3). Count two was not proceeded with. It alleged an offence in terms of s 78(1)(b) in respect of the two documents referred to in count four.

5. Pursuant to convictions entered in respect of those two offences, Gray J, following evidence and submissions on sentence, imposed a sentence that on the first count, the respondent be imprisoned for 12 months (maximum available, seven years) and, on the second count, he be imprisoned for three months (maximum available, two years).

6. Those sentences were to be served concurrently and to commence on 30 January 2003. The respondent was to be released forthwith upon entering into a recognizance, self in the sum of $2000, on conditions that -

he be of good behaviour for a period of two years; and

during that period he undergo such psychiatric treatment and counselling as he may be advised to undergo by his treating psychiatrist; and

for that period he be under the supervision of the Director of Corrective Services of the Australian Capital Territory, or a person nominated by him from time to time, which may include the New South Wales counterpart of the Director, for the purpose of monitoring his undergoing of psychiatric treatment, and that he provide to that person such details of the treatment as may be required by that person.

7. On 14 February 2003, the DPP filed a Notice of Appeal to this Court relying upon the following grounds -

1. The learned sentencing Judge erred in according too little weight to the element of general deterrence. 2. The learned sentencing Judge erred in according too little weight to the verdict of the jury on the count alleging an offence contrary to section 78(1)(b) of the Crimes Act 1914 (Cth), particularly in relation to mens rea. 3. The learned sentencing Judge erred in his construction of the relationship between sections 78 and 79 of the Crimes Act 1914 (Cth) and effectively removed from his sentencing discretion the element of general deterrence. 4. The learned sentencing Judge erred in assessing the moral culpability of the Respondent at a level lower than was open on the whole of the evidence. 5. The learned sentencing Judge accorded too much weight to the expert psychiatric evidence called on behalf of the Respondent and too little weight to the expert psychiatric evidence called on behalf of the Appellant. 6. In all the circumstances, the sentences the learned sentencing Judge indicated that he would have been inclined to impose in the absence of his findings as to the Respondent's mental illness were manifestly inadequate. 7. The learned sentencing Judge erred in failing to order that part of the sentences of imprisonment imposed actually be served by the Respondent. 8. In all the circumstances, the learned sentencing Judge should have ordered the sentence imposed on the count alleging an offence contrary to section 79(3) of the Crimes Act 1914 (Cth) to commence on a date that would have resulted in at least some partial accumulation of the sentence on that count. 9. In all the circumstances, the sentences are manifestly inadequate.

8. His Honour acknowledged that the offence against s 78(1)(b) was inherently more serious than that against s 79(3) of the Crimes Act.

9. His Honour noted that the offence under s 78(1)(b) and s 79(2)(b) both have, as an element, the "intention of prejudicing the safety or defence of the Commonwealth" but, by virtue of s 78(2)(b) that intention was presumed in the case of the former offence "unless the contrary is proved".

10. It is an element of the offence under s 79(3) that the person to whom the prescribed document was communicated was not authorised to receive that communication.

11. That is not an element of the offence against s 78(1)(b). The elements of the communication relied upon by the prosecution as reprehensible were the intention of prejudicing the safety or defence of the Commonwealth and the fact that the document "might be" useful to a foreign (but not "enemy") power.

12. Nevertheless, his Honour noted, as an aggravating factor adverse to the respondent, the position of trust held by him and the damage to the confidence that might be reposed in Australian security services in assessing his culpability. The respondent had not, however, been engaged or encouraged by any foreign power to reveal confidential information or pass on confidential documents. Indeed, the foreign power in question appears, on the evidence, to have been quite unreceptive to the offer made both by the offender and the female person he had passed the document to.

13. On the fact of the document it seems to me unlikely that this would, of itself, but for annotations made by the respondent, have prejudiced the safety or defence of the Commonwealth and, indeed, the evidence given on behalf of the prosecution on sentence seeking to urge the opposite, persuades me that the document itself revealed no more than was generally known already in scientific circles. The reported contact between persons mentioned in the document did not relate to anything beyond normal contact between persons having scientific interests in common.

14. However, the same benign view cannot be taken of the "annotations" the respondent admitted having made upon the document. They tended to reveal sources of ongoing intelligence.

15. To prejudice ongoing intelligence might be prejudicial to the safety or defence of the Commonwealth, albeit the prejudice in this case was not likely to be great. Nevertheless, the potentiality was there though the intent is presumptive rather than actual. The annotated information "might" also have been useful, in that sense, to the foreign power involved.

16. As to actual as opposed to imputed intent, his Honour found -

In light of the psychiatric evidence and the answers that Mr Lappas gave in his record of interview concerning his understanding of the effect of those documents, I am not able to say that at the relevant time he was necessarily aware of the significance of those annotations or, indeed, of the document as a whole other than giving an appearance of usefulness to a foreign power.

17. It seems to me that it would be inappropriate for an appellate court to depart from his Honour's findings as to the awareness of the significance of his actions attributable to the respondent.

18. Nevertheless, it does appear that the respondent, both from his instructions to and statements made to the woman he passed the documents to, was acutely aware that he was betraying his duty to the Commonwealth and that the documents might be paid for by a foreign power.

19. Indeed, the value, if any, of the relevant document as tendered in evidence, was in the annotations made by the respondent. It is impossible to draw any inference as to the second group of documents save that they were classified as "TOP SECRET".

20. Thus, accepting that the respondent's appreciation of the gravamen of his actions was diminished by his mental illness at the time, it nevertheless appears that he did understand that what he was doing was a grave dereliction of his duty to the Commonwealth and that the document he was passing on was likely to be perceived as useful to a foreign power, whether or not the information therein would damage the safety or defence of the Commonwealth.

21. It is, in my opinion, inappropriate to do other than accept his Honour's assessment of the psychiatric evidence. Thus, it may be accepted that the sentence otherwise appropriate should be ameliorated by reference to the respondent's mental state at the time. That significantly moderates the weight to be given to general deterrence - see Parnis v R [1993] FCA 624; (1993) 49 FCR 304.

22. However, I do respectfully differ from his Honour as to the objective seriousness of the s 78(1)(b) offence. Any betrayal by an intelligence officer of his or her duty to keep confidential information secure, irrespective of the objective value of the information in question, can lead to loss of confidence by cooperating agencies in the ability of the Australian intelligence agencies to maintain security. Indeed the very revelation that anyone as apparently unstable as the respondent could have been entrusted with confidential information is in itself gravely damaging to confidence in our intelligence services. The latter consideration is more adverse to the Commonwealth policy and practice in recruiting intelligence officers than anything for which the respondent can take responsibility.

23. The respondent is also responsible for annotations on the document passed to Ms Dowling. Even accepting that the respondent did not advert to all the likely consequences of doing so, they were potentially serious. Whilst not, in the present world context, likely to lead to injury to or death of any person, the annotations might have seriously compromised future quite legitimate sources of information both for the Commonwealth and the persons referred to in the annotations.

24. As a result, I would, notwithstanding the fact that the information conveyed was not the "worst case" of communication of information of the kind referred to in s 78(1)(b), take a starting point for the s 78(1)(b) offence somewhat higher than did his Honour. I consider that starting point for that offence should have been three years and six months. In relation to the s 79(3) offence, there is no information other than the classification, warranted or not, of the documents in question. It was a serious breach of duty, but the objective seriousness beyond that is not possible to determine. Whatever the contents of the documents, they were to be regarded by the respondent as TOP SECRET. I consider that a starting point for that offence would be 12 months imprisonment.

25. I would conclude that even allowing for the mental condition of the respondent at the time of the offences, there was, nevertheless, a considerable degree of moral culpability in his apparently deliberate and well-planned scheme to enable Ms Dowling to profit from the provision of security sensitive documents to a foreign power.

26. Even accepting the degree of disability found by his Honour, I would substitute a sentence of two years for the 12 months his Honour imposed. I would substitute a sentence of six months in respect of the second count.

27. I reject the submission put by the Crown that the two sentences should be cumulative. They were, in my view, part of the one transaction albeit there were two separate communications. The Crown did not demur from his Honour's stated intention to make both sentences concurrent, and in my view it would be inappropriate now to allow them to be made cumulative even though, error being found, the respondent may be re-sentenced. In any event, it seems to me that it was not an appellable error to have made both sentences concurrent.

SHOULD THE SENTENCE BE WHOLLY OR ONLY PARTIALLY SUSPENDED

28. The Crown contended that whilst due weight had properly been given to the respondent's mental condition it should not have prevented a custodial sentence being partially served, albeit that the period to be served need not be lengthy.

29. I agree that the seriousness of the respondent's betrayal of his position of trust, heightened as it was by the national security implications, called for a custodial sentence which should, at least partially, have been served.

30. It follows that, in my opinion, the sentence imposed was manifestly inadequate. Indeed, comparison with the case of Grant v Headland (1977) 17 ACTR 29 renders this conclusion inescapable.

31. The difficulty, however, that now presents itself is that the respondent, to give effect to the correction of the sentencing error, would need to be returned to custody, following a substantial period of liberty, qualified though it has been, on recognizance.

32. The principle that, on Crown appeals, the appellate court will be reluctant to interfere so as to increase the sentence imposed, even if the sentence appealed from is considered inadequate, was not disputed. It is well illustrated by the decision in R v Tait and Bartley (1979) 24 ALR 473 (see also R v Osenkowski (1982) 30 SASR 212).

33. The principles applicable were usefully summarised by Charles JA in R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522, in the following terms -

The relevant rules may be stated in the following propositions: 1. An appeal by the Crown should be brought only in "the rare and exceptional case" (Everett at 299) to establish some point of principle. The reason is that such appeals "represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy" (Malvaso at 234). 2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306). 3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact (Allpass at 562-3). Allpass is also authority for the following propositions: 4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance. 5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance.

34. To now act on the conclusion that the sentence imposed was manifestly inadequate would require that the sentence imposed on the first count and second counts be set aside and new and increased sentences be imposed. In most cases that would have the effect of increasing a period of custody already being served. It is very rare that a sentence will be increased with the effect that an offender who has been released from custody will be returned to custody.

35. Two cases usefully illustrate the contrast. In R v Boudelah and Charlston [1991] FCA 124; (1991) 28 FCR 176, a Full Court, by majority, increased that part of a four year sentence to be served from six months to 18 months (per Gallop J, Von Doussa J concurring). Jenkinson J regarded the sentences imposed as "at the extreme verge of what may escape characterisation as manifestly inadequate" but, nevertheless, not so lenient as to require intervention.

36. The second case is that of R v House and Thorne [1991] FCA 126; (1991) 28 FCR 194. The first offender had been sentenced to four years imprisonment to be released on recognizance after eight months. The second offender had been less culpable and was sentenced to two and a half years imprisonment, to be released on recognizance after six months. The offender House was still in custody at the time the appeal was determined. His time before release was increased from eight months to two years.

37. Notwithstanding that the sentence imposed on the offender Thorne was also regarded as inadequate, no member of the Court was prepared to make an order that would return him to custody.

I am also of the opinion that the sentence imposed upon the respondent Thorne was too lenient in all the circumstances. However, the court indicated on the hearing of the appeal that as the respondent Thorne had been released, having served the period of six months imposed by the Supreme Court, and entered into the recognisance ordered, it would not make such an order as would involve the respondent Thorne returning to custody.

39. Jenkinson J said, at 201, that the subjective factors, coupled with the lesser culpability of the offender Thorne -

... does not in my opinion justify in all the circumstances of this case so short a period of incarceration of Thorne, which I think to have been manifestly inadequate. However, it seemed in the best interests of the community not to make an order which would result in Thorne's return to prison after he had been released, and after he had obtained employment and had undertaken a liability, with another person, for payment of rent under a lease of a flat.

The matter of the respondent Thorne raises a particular difficulty. Although the sentence imposed on him was in my opinion inappropriate and inadequate, he has already served the term of imprisonment which was fixed, he has entered into a recognisance on the conditions formulated in the sentence, and he has commenced to fulfil those conditions. It would be cruel to return him to gaol.

41. In the present case, the offender served only eight days in custody prior to his sentencing in relation to these matters. He entered into the recognizance pronounced by Gray J on 30 January 2003. He has, it appears, conformed to the terms of that recognizance, including supervision and treatment since that date.

42. It is not disputed that he is, and was at the time of the offences, psychologically fragile. It is unfortunate that those who employed him had not earlier realised that. Had they done so, the opportunity to offend would not have presented itself. There is some history of attempted self-harm (see AB 283). Certainly, whilst risk of self-harm is relevant to mitigate a custodial sentence, it cannot be used to avoid the imposition of such a sentence. Rather, it points to a greater than usual burden such a sentence would impose on the particular offender and heightens the duty of care of those having custody of that offender.

43. It is, no doubt, a severe blow to an offender to be sentenced, for the first time, to imprisonment. It is a further blow for that sentence then to be increased on appeal. It is, however, a more severe trauma for a person, spared full-time custody, to have such a sentence imposed on appeal. It is, as von Doussa J observed, a "cruel" outcome.

44. In the present case, in my view, the sentence is so manifestly inadequate that it must be substantially increased. I would, on the first count increase the head sentence to three years and on the second count to six months. They should be concurrent. I believe that the offender should have been required to serve six months of that sentence before being released on recognizance. The period of the recognizance should have been for three years rather than the two years specified.

45. The only question remaining is whether this respondent should now be returned to custody.

46. The question is whether the objective seriousness of the offences is such as to require in the public interest, the imposition, even on a person suffering the mental impairment found to have afflicted the respondent, of some period of actual incarceration.

47. In The Queen v P [1992] FCA 626; (1992) 111 ALR 541; 39 FCR 276 a Full Court of the Federal Court (Burchett, Miles and O'Loughlin JJ), on appeal from the ACT Supreme Court allowed an appeal against a custodial but wholly suspended sentence in respect of acts of indecency on the respondent's 14 year old stepdaughter. The Court set aside the full suspension of the concurrent three year terms of imprisonment, directing that he serve nine months of that sentence.

48. In R v Webster [1999] NSWCCA 313 (27 September 1999), the respondent was returned to custody to serve an extra six months of a four year sentence for armed robbery. The original minimum term had been six months.

49. In R v Ariken [1999] NSWCCA 331 (20 October 1999) in contrast, whilst a sentence for drug trafficking was held manifestly inadequate, the Court, having regard to the double jeopardy element, dismissed an appeal against a sentence of 18 months to be served by way of periodic detention.

50. In R v Minh Duong [1999] NSWCCA 448 (8 December 1999), a receiver of stolen goods, was, instead of community service, sentenced to six years with a minimum of three years.

51. Similarly, in R v Sparos [2002] NSWCCA 52 (12 March 2002), a non-custodial sentence for drug trafficking was set aside and a full-time custodial sentence of 12 months substituted.

52. I, therefore, find myself in substantial agreement with the joint judgment of Justices Cooper and Weinberg J whose reasons I have had the privilege of reading. I agree that six months of the head sentence imposed should be actually served by the offender. However, I respectfully differ on two points.

53. First, that the head sentence on the s 78 offence should be increased to three years not two.

54. Second, that the period of recognizance, imposed after the completion of the period to be served, should be increased to three years.

55. Third, I do not consider that the sentences should be accumulated even partially, given that the prosecution failed so to submit at the original hearing.

56. The sentence should commence eight days before the date of this decision.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

IN THE SUPREME COURT OF THE ) No. ACTCA 4 - 2003

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

57. On 30 January of this year the respondent, Simon Lappas, was convicted on one count of espionage contrary to s 78(1)(b) of the Crimes Act 1914 (Cth) ("the Act"). He was also convicted on one count of unauthorised communication of two prescribed documents, contrary to s 79(3). He was sentenced to a term of 12 months imprisonment on count 1, and 3 months imprisonment on count 2. These sentences were to be served concurrently, and the sentencing judge ordered that he be released forthwith upon a recognisance release order pursuant to s 20(1)(b). In effect, the respondent received a wholly suspended sentence.

58. The Commonwealth Director of Public Prosecutions has appealed against that sentence. In summary, the grounds of appeal that the Director relies upon are that the sentence is manifestly inadequate, that the sentencing judge gave excessive weight to factors of mitigation and too little weight to the gravity of the offences, and that his Honour erred in concluding that the respondent should not be required to serve a period of actual incarceration. The Director also contends that his Honour made several sentencing errors of a specific kind. However, for reasons which will become apparent, it is unnecessary to consider that contention.

59. The respondent was born on 22 January 1975. He is now 28 years of age. In 1997, he graduated from the University of Western Sydney with the degree of B.Sc. (Hons). In November 1999, he commenced employment as a probationary intelligence analyst with the Defence Intelligence Organisation ("the DIO") in Canberra. His duties included the assessment of sensitive information relating to particular types of military technology. He was given a security rating which allowed him access to national security information classified at the level of "Top Secret". According to the Commonwealth Protective Security Manual, that classification is the highest of the four existing national protective security markings: Restricted, Confidential, Secret and Top Secret. The classification "Top Secret" signifies that compromise of the information could cause "exceptionally grave damage" to national security.

60. Prior to taking up his employment with the DIO, the respondent lived in Sydney. When he came to Canberra he rented a unit in Narrabundah. His fiancée remained in Sydney.

61. Throughout the period from November 1999 until July 2000, the respondent carried out his duties in what appeared to be a satisfactory manner. In April 2000, he was assigned the task of analysing certain information provided to the DIO by the Defence Security Branch. The information that he was given was not itself classified. However, according to evidence given at the trial, it merited a classification one level below "Top Secret", namely that of "Secret". The respondent was directed to prepare a report based upon that information for the purpose of briefing another security organisation. He did so. After consultation with his superior, his report was classified "Top Secret". It was also marked "AUSTEO" (for Australian eyes only), and "Very Limited Distribution". He kept this report in his safe at the DIO.

62. The respondent was also required to have a translation done of various emails appended to the information, which had been provided to him. He arranged for that translation to be done. However, the work had still not been completed by the time he came to commit the offences, which are the subject of this proceeding.

63. On 6 July 2000, a Thursday, the respondent visited a brothel in Fyshwick. He met a prostitute named Sherryll Ellen Dowling. He asked her to come back to his unit at Narrabundah. There they had sex. He paid her for her services. Before parting, they exchanged contact details.

64. On the following day, the respondent's fiancée arrived in Canberra to spend the weekend with him.

65. On the Saturday evening, 8 July 2000, Ms Dowling telephoned the respondent. She asked him whether he wanted her to see her again, this time as a private client. Because his fiancée was at his unit at the time, the respondent could not talk freely. He left his unit and called her back from another phone. They agreed that she would spend two nights with him, commencing on the Sunday night. Ms Dowling's evidence at the trial was that her normal fee was about $1,000 per night.

66. The following morning, the respondent and his fiancée joined a fellow DIO analyst, Mr Chris Hein, and his wife, at a restaurant for brunch. They spent several hours together. According to Mr Hein the respondent was happy, and seemed to be looking forward to getting married.

67. That afternoon, the respondent's fiancée returned to Sydney. In the evening Ms Dowling joined him at his unit, as arranged. The respondent told her that he had no money, and that he would be unable to pay her as he had left his credit card at work. Ms Dowling was obviously prepared to accept his word that he would pay her at a later date. She remained with him at the unit.

68. On the next day, Monday, 10 July 2000, the respondent took the day off work and spent it with Ms Dowling. On that day, or perhaps the next, he telephoned the person who was supposed to translate the e-mails, asking whether that task had been completed. However, that person was not available. The respondent left a voice-mail message noting the purpose of his call.

69. On the following day, Tuesday, 11 July 2000, the respondent briefly attended at his place of work. It was during that visit that he removed the report that he had earlier drafted, and which was the subject of count 1. There was no dispute about the fact that he did so in order to give it to Ms Dowling so that she could sell it to a particular foreign power that he thought might be willing to pay a substantial sum for it. Moreover, he provided her with detailed instructions as to how she might best arrange for its sale.

70. It is of critical importance to appreciate that when the respondent gave the report to Ms Dowling it contained his handwritten notes relating to a matter which was, if anything, even more sensitive than the information contained in the document itself. The annotation contained the names of two persons who had provided confidential information about the affairs of the foreign power to the Australian intelligence community in the past, and were expected to do so again in the future. The disclosure of the annotation to the foreign power was likely to compromise their ability to provide such further information, as well as possibly jeopardising their personal safety. The Crown contended that the respondent had written these notes shortly before he handed the document to Ms Dowling in order to enhance its value. However, the sentencing judge declined to draw that inference.

71. In the early afternoon of the Tuesday, the respondent personally initiated contact with representatives of the foreign power. It was common ground that he did so in order to assist Ms Dowling with the sale of the document. However, his efforts were to no avail.

72. The respondent returned to work on the Wednesday morning, 12 July 2000. Ms Dowling remained at his unit. In accordance with his instructions, she made two attempts to contact representatives of the foreign power regarding the sale of the document. However, she was unsuccessful on both occasions.

73. On the Wednesday afternoon, at about 5 pm, the respondent photocopied the two documents, which ultimately formed the basis of count 2. These documents were classified "Top Secret". They contained information that was apparently so security sensitive that, unlike the respondent's report, they were not tendered in evidence.

74. Upon returning to his unit, the respondent gave the two documents to Ms Dowling. It was common ground that he did so in order that she might sell them to the same foreign power.

75. Later that evening, Ms Dowling left Canberra for Sydney. Prior to her departure, the respondent made yet a further attempt to sell all three documents that he had given her, on her behalf. Once again he was unsuccessful.

76. Two days later, on Friday, 14 July 2000, the respondent spoke to Mr Hein, and told him what he had done. He told him that he had given the documents to Ms Dowling because she needed money, and he was desperate to have her stay with him. He said that he did not think that the documents contained any information that would harm anyone. Mr Hein told the respondent that he should inform the DIO security officer about what he had done. Later that afternoon, the respondent attempted to do so. However, the security officer had already left work for the day.

77. That evening, the respondent spoke to Mr Matthew Ferguson, another friend who worked as an intelligence analyst at the DIO. He told him what he had told Mr Hein earlier that day. Mr Ferguson advised the respondent to get the documents back that weekend.

78. On Saturday, 15 July 2000, the respondent telephoned Ms Dowling. He warned her that she should expect a visit from the authorities. He also told her to burn his report (which, of course, bore his handwritten notes) and to turn the other two documents over to the police. After that telephone call there was no further contact between them.

79. On the following day, Sunday, 16 July 2000, Mr Ferguson telephoned the respondent and told him that if the respondent did not report the matter by the following day, he himself would do so. According to Mr Ferguson, the respondent "pleaded" with him not to tell anyone. He also told him, falsely, that he had already retrieved the documents and burnt them.

80. Later that day, the respondent telephoned the DIO security officer and arranged to meet him at about 10.30 pm that night. At the meeting, the respondent told the security officer what he had done. According to the security officer, he appeared to be extremely distressed. The security officer was so concerned about him that he insisted that the respondent spend the night at his home.

81. On the following morning, Monday, 17 July 2000, the respondent attended the DIO, in the company of the security officer. It was at that stage that senior management was first informed of what had occurred. The respondent appeared to be distressed. A psychologist was brought in to attend to him.

82. On the following day, based on the information provided by the respondent, police recovered each of the three documents from Ms Dowling's home.

83. Later that week, the respondent participated in a video-recorded interview conducted by police. His solicitor was present, as was the psychologist who had been treating him. It should be noted that the police who conducted the interview were not, at that stage, fully apprised of the nature of the documents that had been recovered from Ms Dowling. For that reason, the transcript of the interview was, at times, difficult to follow.

84. In imposing the sentence that he did, the sentencing judge noted that although the respondent had been charged with espionage, he might equally have been charged with the aggravated form of communicating prescribed documents contained in s 79(2). That offence carried 7 years imprisonment, the same maximum as the offence of espionage. It also differed from espionage in that it embodied an element of breach of trust, and did not involve a reverse onus of proof.

"The prosecution, in their written outline of submissions, say that Mr Lappas committed a very serious breach of s 78(1) and a serious breach of s 79(3) of the Crimes Act. That is said to be so because they involve serious breaches of a very high degree of trust [and] are of a kind that are inherently difficult to prevent and detect. That comment is more apt had Mr Lappas been charged and convicted of an offence against s 79(2) than an offence against s 78(1) of the Act." (emphasis added)

"According to the Macquarie Dictionary, "espionage" encompasses the practice of spying on others. It is the use by a government to discover the military and political secrets of another nation. Generally, it relates to persons employed by a foreign power for that purpose. In this case, those factors are not present in respect to the charge under s 78(1)(b) of the Crimes Act. Their presence would indeed call for deterrence to predominate in the sentencing process for an offence under s 78, but deterrence of that nature is not the situation that I am dealing with here. However, I do take into account the position of trust held by Mr Lappas and the damage to the confidence that there might be in this country's security services as matters going to the seriousness of this particular charge under s 78(1)(b)." (emphasis added)

87. His Honour then turned to the second count. He observed that it was not an element of the offence under s 79(3) that there be any breach of trust. Nor was it an element of that offence that any damage is caused by communication of the prescribed information.

88. Next, his Honour referred to the mitigating factors upon which the respondent relied. Among these were his age, his previous good character and, most importantly, the fact that he had been suffering from a significant mental illness or disorder at the time he committed these offences.

89. Having set out these matters, his Honour then proceeded to explain why he considered that the respondent should be sentenced to two short terms of imprisonment, but released without having to serve a period of actual incarceration:

"It is fundamental to the view that the prosecution ask me to take as to the seriousness of these offences that they were committed by a person who was performing a calculated act. The prosecution point to the annotations that were made by Mr Lappas to the document that is the subject of the espionage charge. I do not agree that those annotations necessarily indicate that Mr Lappas was "enhancing" the documents for the purposes of its eventual sale, although they may well have had that effect. In light of the psychiatric evidence and the answers that Mr Lappas gave in his record of interview concerning his understanding of the effect of those documents, I am not able to say that at the relevant time he was necessarily aware of the significance of those annotations or, indeed, of the document as a whole other than giving an appearance of usefulness to a foreign power. Nor do I consider that Mr Lappas' instruction to Ms Dowling, or what might be said to be "concealing facts", contain the sinister connotations that the prosecution wished to draw. The irrationality of his conduct was apparent throughout the whole episode.

A considerable amount of psychiatric evidence was given before me as to Mr Lappas' state of mind at the time these offences were committed. The prosecution relied upon what it said were the objective facts to indicate that Mr Lappas' acts in taking the documents were calculated. I cannot agree that this is so. The evidence given by the psychiatrist supports a view that Mr Lappas' reasoning processes were so affected that he did no understand the gravamen of his actions when acting as he did.

I am not prepared to set aside the opinions given by Dr Knox and Dr Westmore so as to find that the act was a calculated act in the terms that the prosecution would seek to characterise it as. The prosecution adduced evidence from Dr Skinner who, in her report, gave an opinion to a contrary effect. I prefer to accept the opinions and reasoning of Drs Knox and Westmore where it conflicts with that of Dr Skinner but, in particular, I accept the opinions expressed by Dr Westmore. Dr Skinner conceded in cross-examination the significant irrationality of Mr Lappas' conduct at the relevant time and I consider that the evidence of Ms Dowling as to the observations that she made of Mr Lappas' state before the period of time that the offences were committed are evidence of a mental dysfunction. Those are matters which do not appear to have been taken into account in Dr Skinner's findings but, even if they were, I prefer the opinion proffered by Dr Westmore. I accept his opinion that at the time of the offences Mr Lappas was suffering from a depressive illness with the differential diagnosis that Dr Westmore ascribes. I accept Dr Westmore's opinion that Mr Lappas was psychiatrically unwell at the time the offences occurred. I find that Mr Lappas was suffering from mental dysfunctioning which substantially affected his reasoning and judgment.

I do not accept the prosecution's contention that Mr Lappas had consistently sought to mislead each of the psychiatrists in relation to the facts material to their opinions. This proposition was put to both Dr Knox and Dr Westmore and I do not consider their respective responses support the contention.

I consider that Mr Lappas' conduct was aberrant and is clearly deserving of condemnation, but having regard to his mental state at the time, I am not prepared to visit it with an immediate custodial sentence."

90. After referring to various authorities dealing with the appropriate sentencing principles in cases of mental illness, his Honour continued:

"I do not regard the present case as one where but little moderation of the consideration of general deterrence is given to an offender acting with the knowledge of what he is doing and the gravity of his actions. The mental dysfunctioning in Mr Lappas' case substantially affected his reasoning and judgment and his moral culpability for his actions. Rather, each of the factors referred to by the Victorian Full Court in Tsiaris [1996] VicRp 26; [1996] 1 VR 398 at 400 are relevant. I consider that the mental dysfunction from which I find Mr Lappas suffered goes to reduce his moral culpability for the offence, as distinct from his legal responsibility and bears upon the weight I should give to any required denunciation of his conduct.

Secondly, the illness for which Mr Lappas is still being treated has a bearing on the kind of sentence that should be imposed as do the concerns for his present state expressed by his treating psychiatrist should he face a custodial sentence. The other two aspects referred to by the Victorian Full Court as to the appropriateness of the case before the court as a vehicle for general deterrence, and the worth of pursuing it as such, are equally relevant here. If I were to impose an immediate custodial sentence, the aspect of it weighing more heavily on the individual in this case must also be considered."

91. His Honour observed that the deterrent aspect of sentencing could be adequately met by imposing a term of imprisonment. However, having regard to the respondent's diminished responsibility resulting from his mental illness, that term of imprisonment should be wholly suspended.

92. It is important to note the following passage in his Honour's sentencing remarks:

"Without the mental illness factor, I would have been inclined to order that Mr Lappas be imprisoned for two years on the espionage charge and for six months on the charge under s 79(3) of the Crimes Act. Because of Mr Lappas' mental condition at the time of the offences, I consider that the interests of society and those of the offender permit me to reduce the terms to 12 months and three months respectively. The charges arise out of the same if circumstances and I will direct they both commence today." (emphasis added)

93. His Honour then sentenced the respondent to 12 months imprisonment on count 1 and 3 months imprisonment on count 2, and ordered that the sentences be wholly concurrent, and that they be suspended.

94. The Crown's argument, though stated in somewhat elaborate terms, was in essence a simple one. It was submitted that the sentence of 12 months imprisonment on count 1 was manifestly inadequate in that it failed to reflect the gravity of the offence, particularly the significant breach of trust involved in its commission. It was further submitted that the sentencing judge had erred in stating that he regarded the respondent's conduct as falling more naturally within the ambit of s 79(2), and not as a true case of espionage.

95. The Crown referred to a number of aggravating factors, which, it submitted, made this a very serious example of the offence under s 78(1)(b). Among these factors was the respondent's conduct in adding to his report the handwritten annotation, which, it was submitted, could only have been done to enhance its value to the foreign power. As indicated earlier, the handwritten material was extremely sensitive. Its communication to the foreign power was likely to compromise future intelligence gathering by the persons named, and possibly to put them in some physical danger. The Crown also noted the respondent's conduct, when he telephoned Ms Dowling to warn her that she could expect a visit from authorities. His instruction to her to burn his report, with its highly incriminating handwritten notes, but return the other two documents, was said to reveal a mind, which was calculating and devious, and not one significantly affected by mental dysfunction.

96. The Crown also submitted that the respondent had deliberately concealed from his colleagues within the DIO, the police, and the psychiatrists by whom he had been seen, the fact that the document that he gave Ms Dowling bore his handwritten notes. Moreover, he had not told anyone about his own attempts to arrange for the sale of the documents to the foreign power. This too suggested a mind that was cunning, and indicated a lack of any genuine remorse.

97. The Crown next challenged the sentencing judge's findings regarding the respondent's mental state. It was submitted that the respondent had consistently misled each of the psychiatrists who had seen him in relation to the matters which were material to their opinions. Had his Honour weighed the psychiatric evidence more carefully, he would have appreciated that the objective facts provided a more reliable basis for assessing the respondent's moral culpability, than did the opinion of the experts.

98. The Crown submitted that although the respondent's mental state at the time of the commission of the offences was relevant to a proper assessment of his moral culpability, and although the sentencing judge had correctly identified the legal principles applicable when sentencing persons suffering from significant mental dysfunction, he erred in the application of those principles to the facts before him. In particular, he ought to have concluded that the respondent's culpability was significantly greater than he did.

99. However, the main argument advanced by the Crown was that the sentences identified by his Honour as those that would have been appropriate "without the mental illness factor", namely 2 years on the first count and 6 months on the second, were themselves manifestly inadequate. It was submitted that a sentence of 2 years in relation to the crime of espionage, absent the mitigating circumstances arising out of the respondent's mental state, reflected a serious failure on his Honour's part to appreciate the measure of general deterrence appropriate to the circumstances of that offence. That error, and an error of a similar nature in relation to count 2, were said to vitiate the lesser sentences ultimately imposed.

100. Finally, it was submitted that the sentence imposed on count 2 ought not to have been made wholly concurrent with that imposed on count 1. The conduct that led to count 2 involved the commission of a separate and distinct offence, carried out after the respondent had totally relinquished control of the document that was the subject of count 1, and after he had time to reflect upon what he had earlier done. It merited at least some partial accumulation of sentence.

101. It was submitted on behalf of the respondent that the authorities established that appellate courts should approach Crown appeals with restraint. The sentencing judge had been confronted with a difficult task for which there were few, if any, precedents. His Honour had recognised the importance of the role of general deterrence in relation to offences of this type. At the same time, there was cogent evidence that the respondent had been suffering from a significant mental illness at the time that he committed these offences. That meant that his moral culpability was diminished. It also meant that the respondent was not an appropriate medium through which to give effect to the need for general deterrence.

102. Turning specifically to the grounds of appeal, it was submitted that nothing in the reasons for sentence suggested that the sentencing judge had proceeded on a basis that was in any way inconsistent with the verdict of the jury. It was noted that the offence under s 78(1)(b) contained a statutory presumption as to mens rea. This meant that the sentencing judge was entitled to sentence the respondent only on the basis that he had failed to rebut the presumption that arose from that fact that the act of communication was made for a purpose intended to be prejudicial to the safety or defence of the Commonwealth. It did not mean that the intention specified in the section had been affirmatively established.

103. It was further submitted that the sentencing judge had not fallen into any of the specific errors alleged by the Crown. His Honour had merely noted, correctly, that the breach of trust upon which the Crown laid so much emphasis was not itself an element of the offence under s 78. However, his Honour had expressly taken into account, as a circumstance of aggravation, the position of trust occupied by the respondent.

104. It was next submitted that the respondent's moral culpability was significantly diminished by reason of his mental illness at the time of the commission of the offences. Dr William Knox, a consultant psychiatrist called on behalf of the respondent, had given evidence that he was suffering from "severe major depressive disorder superimposed on long term dysthymic disorder ...". Dr Bruce Westmore, a forensic psychiatrist also called on his behalf, was of the view that he was "psychiatrically unwell at the time the alleged offences occurred and that he was suffering from mental dysfunctioning which would have substantially affected his reasoning and judgment". Dr Sheriff Rewais, a consultant psychiatrist, who diagnosed a "major depressive episode", supported them. The sentencing judge had acted upon their evidence, in preference to that of Dr Yvonne Skinner, a consulting psychiatrist called on behalf of the Crown who concluded that the respondent had not been suffering from any cognitive dysfunction during the relevant period. His Honour had been entitled to accept the evidence called on behalf of the respondent, and was not obliged to find the facts most favourable to the Crown.

105. The next matter addressed related to the sentences proposed by his Honour without regard to the psychiatric evidence. It was submitted that the sentence of 2 years on the espionage charge and 6 months on the charge under s 79(3) "without the mental illness factor" were both "within the range" for offences of that type.

106. It was next submitted that even putting to one side the respondent's mental condition, there were a number of mitigating factors that had to be taken into account. These included the respondent's prior good character, the fact that none of the information fell into the hands of any foreign power, the "spontaneous" nature of the offences, the respondent's cooperation with the authorities, and the delay of approximately two and a half years which had occurred since the commission of the offences.

107. Finally, it was submitted that the sentencing judge had correctly concluded that the sentences imposed upon counts 1 and 2 should be wholly concurrent. The offence under s 79(3), though technically a separate criminal act, had been committed as part of a "continuing course of conduct". Moreover, the Crown had not made the point sufficiently clearly before the sentencing judge that there ought to be partial accumulation of the two sentences to be imposed. For that reason alone the submission attacking concurrency ought not be entertained by this Court.

108. The term "espionage" is generally defined as the act of monitoring the political, economic and military secrets of other countries. Its scope as a crime extends to communicating information that is of a prescribed kind to a foreign power. That foreign power need not be an enemy. The offence can be committed in time of peace as well as in time of war.

109. It has been an offence against a law of the Commonwealth to engage in espionage at least since 1914 when the Crimes Act was enacted. Since that time it has also been an offence of a cognate kind to communicate prescribed information to unauthorised persons.

110. Section 78(1)(b), in the form in which it stood at the time the offences were committed was in the following terms:

"78 (1) If a person for a purpose intended to be prejudicial to the safety or defence of the Commonwealth or a part of the Queen's dominions -

obtains, collects, records, uses, has in his possession or communicates to another person a sketch, plan, photograph, model, cipher, note, document, article or information that is likely to be, might be or is intended to be directly or indirectly useful to an enemy or a foreign power; or

111. Section 79(3) is still in the same form as when the offences were committed. It relevantly provides as follows:

"(3) If a person communicates a prescribed person a sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than: (a) a person to whom he is authorized to communicate it; or (b) ... or permits a person, other than a person referred to in paragraph (a) or (b), to have access to it, he shall be guilty of an offence.

112. It is important to note that at the time of the commission of these offences the maximum penalty for the crime of espionage was only 7 years imprisonment. That is still the maximum penalty for the aggravated form of unlawful disclosure of prescribed information contained in s 79(2). A maximum penalty of that length for an offence as serious as espionage is obviously out of kilter with the penalties for that offence which exist in many other countries.

113. It is well known that in the United States the maximum penalty for espionage is death. See United States v Rosenberg [1952] USCA2 26; 195 F2d 583 (2d Cir 1952) and the Espionage Act (1917) 18 USCS s 794. See also R Norwood, "None Dare Call It Treason: the Constitutionality of the Death Penalty for Peacetime Espionage" (2002) 87 Cornell L Rev 820. In the United Kingdom, where the Official Secrets Act 1989 provides that the Official Secrets Acts 1911-1939 may be cited together as the Official Secrets Acts 1911 to 1989, the maximum sentence for the offence of espionage is 14 years imprisonment. The seriousness with which such offences are regarded is manifested by the decision of the Court of Criminal Appeal in R v Blake (1961) 45 Cr App R 292 affirming consecutive sentences totalling in all 42 years imprisonment for offences under that Act.

114. The position in this country regarding espionage has altered significantly. Section 91(1) of the Criminal Code Act 1995 which was introduced by the Criminal Code Amendment (Espionage and Related Matters) Act 2002, and which came into operation on 31 October 2002, replaced s 78(1)(b) which has now been repealed. The new offence of espionage provides for a maximum penalty of 25 years imprisonment. However, the respondent was sentenced, as he was entitled to be, upon the basis that the maximum penalty available for his offence was 7 years imprisonment.

115. The sentencing judge had few precedents to call upon. It seems, from what we were told, that the respondent is the first person to be convicted, in this country, of espionage. The elements of that offence include a requirement that the person charged have "a purpose intended to be prejudicial to the safety or defence of the Commonwealth". The crime is therefore unusual in that it focuses upon the purpose for which the act is done. That purpose is self-evidently a heinous one, involving as it does a threat to the security of the State.

116. At the same time, the offence poses a difficult sentencing problem. Section 78 carries a reverse onus. Accordingly, all that one can say is that the respondent failed to discharge the onus, which rested upon him, of establishing that he did not have the requisite purpose. To complicate matters still further, his moral culpability for this offence was significantly diminished by the mental illness that he was suffering at the time. It is plain therefore that his Honour had a most unenviable task to perform in sentencing the respondent on count 1.

117. The offence under s 79(3) was less problematic. It carried a maximum penalty of only 2 years imprisonment, and did not have the added complication of a reverse onus. There was also a precedent to which his Honour could have had regard, although that concerned a much less serious breach of the section.

118. In Grant v Headland (1977) 17 ACTR 29 the appellant was 19 years of age and a probationary trainee of the Australian Security Intelligence Organisation when he foolishly decided to undertake an experiment to ascertain what kind of response he could obtain to an overture to a foreign agency purporting to offer intelligence secrets. As a result he was charged with attempting to communicate "prescribed information" to a person not authorised to receive it. He was convicted in the Court of Petty Sessions of the Australian Capital Territory. The appeal against conviction was dismissed. However, the appeal against sentence was allowed. Smithers J concluded that the sentence of 6 months imprisonment imposed by the Magistrate was appropriate, but that instead of having to serve 3 months actual incarceration before being released upon a bond, the appellant should serve only one month actual imprisonment.

119. The principles that govern the outcome of this appeal are not in doubt. It was common ground between the parties, and is plainly the law, that on a Crown appeal, an appellate court should exercise restraint before interfering with a sentence imposed at first instance.

120. In Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 Brennan, Deane, Dawson and Gaudron JJ said at 299-300:

"... 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." (Footnote omitted)

121. Moreover, appellate courts have generally recognised that the element of double jeopardy in such appeals should be reflected by providing that on a successful Crown appeal, the sentence imposed should not be as severe as that which the Court would have imposed at first instance: see R v Cobb [1999] FCA 158; (1999) 84 FCR 450 at 453.

122. The next matter to be noted is that an appeal against sentence involves a challenge to the exercise of a discretionary judgment. The principles governing appeals against such judgments are well known: see House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672 and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 334. The same point was made by McHugh J in Everett v The Queen at 306 where his Honour said, in relation to whether a sentence was manifestly inadequate:

"Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence."

123. More recently in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Gaudron, Gummow and Hayne JJ observed at par [58]:

"Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residual category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons."

124. There is also a helpful statement of the principles governing Crown appeals in R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522. We adopt the principles set out therein as correct, and propose to apply them to the facts of the present case.

125. There is no dispute, in this case, regarding the principle that mental dysfunction which contributes to the commission of an offence operates as a mitigating circumstance, lessening the moral culpability of an offender. The law on this point is clear and was correctly summarised by the sentencing judge. See generally R v Anderson [1981] VicRp 17; [1981] VR 155; R v Man (1990) 50 A Crim R 79; Parnis v R [1993] FCA 624; (1993) 49 FCR 304; R v Tsiaris [1996] VicRp 26; [1996] 1 VR 398 and R v Wright (1997) 93 A Crim R 48.

126. It is an accepted principle of sentencing that general deterrence will often be given very little weight in the case of an offender suffering from a mental disorder or abnormality. That is because such an offender is not the appropriate medium for making an example to others. At the same time, considerations of general, or even specific, deterrence are not rendered completely irrelevant. Each case must be considered in the light of its own particular circumstances.

127. It is really only the application of these principles to the facts of this case that is in issue in this appeal.

128. We propose to deal firstly with the contention that the sentences imposed by his Honour were manifestly inadequate. In our view, that contention should be accepted. The sentences of 12 months imprisonment on count 1, and 3 months imprisonment on count 2 were each not merely lenient, but manifestly inadequate.

129. The source of his Honour's error can, we think, readily be identified. His starting point was 2 years imprisonment on the first count, and 6 months imprisonment on the second. It was from that starting point that he reduced by half the sentences that would otherwise have been imposed, having regard to the "mental illness factor".

130. We consider that the appropriate starting point in each case should have been much higher than that chosen. Espionage is almost inevitably bound to be a crime of the utmost gravity. The present case aptly fits that description. It must be remembered that the respondent provided a document containing information which was not merely security sensitive, but classified as "Top Secret", to a woman that he had just befriended in order that she might sell it to a foreign power. He did so in circumstances that involved a massive breach of trust. It is difficult to imagine many more serious examples of this crime, though no doubt they do exist.

131. Moreover, there were a number of significant aggravating features associated with this offence. Contrary to his Honour's finding, the respondent's conduct in adding his handwritten notes to the document can only be explained, in any sensible way, by a desire to enhance the value of the document to the foreign power to which it was to be sold. The annotation was a particularly reprehensible act. It was calculated to place in jeopardy not merely the interests of the Commonwealth, but also the safety and well-being of the persons named.

132. There was little, if any, indication of genuine remorse. The respondent pleaded not guilty to the count of espionage, and maintained throughout that he did not regard the information supplied to Ms Dowling as harmful. The verdict of the jury established, at the very least, that they did not accept that this was his true state of mind. In addition, the respondent was at least selective in the assistance he provided to the authorities, and in what he told the psychiatrists who treated him.

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