Whistleblower's lengthy sentence could deter others from exposing crime and corruption

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Leaking of sensitive information and publication online could have caused harm to the nation in the wrong hands.
Australia Criminal Law
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Over eight years ending in early 2017, Major David McBride served as a legal officer for the Australian Defence Forces. And over the eight months to February 2012 and the five to December 2013, he served in Afghanistan as a legal advisor under both US and Australian commanders.

McBride's job was to advise on the rules of engagement or correct procedures. And he raised concerns in April 2013 about military police investigating troops in Afghanistan, while during his second tour, as he complained that officers' actions were being misconstrued and then investigated.

In March 2014, McBride commenced printing classified ADF documents that he had access to and storing them at his ACT home. By 2015's end, he'd removed 235 documents. And he delivered a complaint to the Inspector General of the Australian Defence Forces (IGADF) on 15 August 2014.

The submitted document contained five incidents relating to civilian deaths, which McBride considered involved a lack of “reasonable suspicion” to begin inquires for murder. And in August 2015, the IGADF rejected McBride's complaint outlining that much of it was unsubstantiated.

McBride also provided leaked files in 2014 to two separate journalists, who didn't report on them. And he then posted documents online in 2016, which led ABC journalist Dan Oakes to contact him, requesting copies and he then published 2017's The Afghan Files: a report on SAS war crimes.

The AFP then raided McBride's ACT property on 26 February 2018, whilst he was in Spain. The ex-military lawyer then returned to Australia on 1 September 2018, and when he was attempting to board a plane back to Spain on the 5th of the month, he was arrested, charged and released on bail.

Charges before the court

McBride's criminal trial commenced on 6 November 2023, and on 17th of that month, he pleaded guilty to three of five charges that had originally been laid. And on 6 May this year, McBride's sentencing hearing took place in the ACT Supreme Court.

As Justice David Mossop set out in his 14 May sentencing transcript, McBride stood charged over multiple offences due to the files he leaked having the potential to prejudice Australia's defence, national security or international relations, and some had the potential to do this ongoing.

McBride pleaded guilty to one count of theft of property from a Commonwealth entity, contrary to section 131.1 of the Criminal Code Act 1995 (Cth), which is an offence that carries a maximum penalty of up to 10 years imprisonment.

The lawyer also pleaded guilty to two counts of unlawfully giving or obtaining information as to defences, contrary to section 73A of the Defence Act 1903 (Cth).

Section 73F of the Defence Act outlines that the 73A offence can be tried summarily, or in the NSW Local Court, which means it carries a fine of $626 and/or 6 months gaol time. But when prosecuted in the higher courts it carries “a fine of any amount or imprisonment for any term, or both”.

Assessing the criminal impact

The harm or potential harms to defence, national security, and international relations, it was agreed, arose out of McBride's having taken the documents from ADF offices and storing them at his home, as well as having disclosed them without authorisation to journalists and publishing them online.

Justice Mossop set out that the removal of documents had meant they could have been obtained by unauthorised personnel. And Australia had to notify its allies and partners about this crime, which could jeopardise further information sharing with these nations.

In terms of the leaking of the information to three separate journalists and the publication of it online, his Honour found these incidents could have again caused harm to the nation if this sensitive information was obtained by the wrong people.

Subjective considerations

As for the assessment of the 60-year-old's personal circumstances, the court relied upon a 2024 assessment of McBride for an intensive correction order (ICO), two reports from psychiatrist Sam Borenstein, 15 character references, four performance appraisals and several interviews with police.

McBride's ADF performance appraisals were initially very positive, but by September 2014, it was found his prioritisation of his complaint to the IGADF was impacting his performance. While in 2016, he was diagnosed with major depressive disorder, and then discharged from the military in 2017.

The references submitted convey McBride has a passion for justice and is also highly sensitive to deviations from it. He had no criminal record, and he has shown no remorse for his actions, but rather he considers he acted in a lawful manner, and he did what responsibility demanded.

“A common theme of the references relating to his time in the military is his sense of duty, his sense of professional responsibility, his intelligence and hard work,” Justice Mossop further outlined in his findings.

And McBride also submitted five points of fact that should be favourable when sentencing, which included his “exemplary character”, that his motivation was honourable, that he didn't believe he was breaking the law, he'd been suffering mental disorders, and the resulting harms were minimal.

Sentenced to deter others

In terms of the theft of documents and their disclosure to several journalists, Justice Mossop found, as McBride partook in this behaviour repeatedly over a long period and it involved grave breaches of his duty as a lawyer, that their objective seriousness was above the mid-range.

Justice Mossop further pointed to the unlimited term of imprisonment that applies to section 73A of the Defence Act, and he explained that it is a penalty only available to accommodate extreme breaches of national security information and not that which McBride was involved in divulging.

“It must accommodate offending which involves the disclosure of extremely damaging naval, military or air force information in circumstances, such as war, where Australia is under immediate military threat,” said his Honour, adding McBride's sentence must leave room for longer ones.

The two factors that his Honour focused on when delivering his sentence were specific deterrence, preventing McBride from reoffending again in this manner, and general deterrence, ensuring that no other public servants contemplate blowing the whistle on government corruption, as McBride did.

And on 14 May, Justice Mossop sentenced McBride to an aggregate sentence of 68 months inside or 5 years and 8 months imprisonment, with non-parole set at 2 years and 3 months.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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