R v Scerba (No 2) - [2015] ACTSC 359

HUMAN RIGHTS ACT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Scerba (No 2)
Citation:	[2015] ACTSC 359
Hearing Date:	30 October 2015
DecisionDate:	5 November 2015
Before:	Refshauge J
Decision:	1. Michael Scerba be convicted of unauthorised disclosure of information by a Commonwealth officer. 2. Michael Scerba be sentenced to twelve months imprisonment to commence today, 5 November 2015. 3. On 4 February 2016, after serving three months imprisonment, and upon giving security in the sum of $500, Michael Scerba be released on the condition that he be of good behaviour for a period of two years. 4. Pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon application of the Director of Public Prosecutions, the following items, seized by members of the AFP during the execution of a search warrant at 65 Clift Crescent, Richardson in the ACT on 21 October 2012, be forfeited to the Commonwealth: a. All hard drives contained in the black ‘ANTEC’ computer tower (item no 001 recorded on property seizure record A228052); and b. 5 x shards/pieces of compact disc (item no MS/ET/45 recorded on property seizure record A228055)
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – offender suffering from depression – depression causatively related to offending – culpability not reduced – reliance on forensic psychologist’s report – reliance on self-reported information CRIMINAL LAW – Unauthorised disclosure of information by a Commonwealth officer– unauthorised access to restricted data – Department of Defence intelligence – sensitive information – downloading of sensitive information – uploading of sensitive information online – damage to national security – harm to Australia’s defence capabilities – harm to Australia’s intelligence relationships – actual level of harm unknown – duty not to communicate information – breach of trust
Legislation Cited:	Crimes Act 1914 (Cth), ss 16A, 16A(2), 16BA, 23ZD, 70, Pt 1B Criminal Code 1995 (Cth), s 478.1
Cases Cited:	Bedford v Earl [2015] ACTSC 306 Cameron v R (2002) 209 CLR 339 Grant v Headland (1977) 17 ACTR 29 OH v Driessen [2015] ACTSC 148 Qutami (2001) 127 A Crim R 369 R v Campbell [2010] ACTCA 20 R v Kennedy [2000] NSWCCA 527 R v Seivers & O’Ryan (Unreported, Australian Capital Territory Supreme Court, Gray J, SCC 160 and 161 of 2007, 10 June 2009) R v Verdins (2007) 16 VR 269 Tapper v The Queen (1992) 39 FCR 243
Parties:	The Queen (Crown) Michael Scerba (Defendant)
Representation:	Counsel Ms K Haigh (Crown) Mr T Begbie (Commonwealth Attorney-General) Mr P Edmonds (Defendant)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Australian Government Solicitor (Commonwealth Attorney-General) Canberra Criminal Lawyers (Accused)
File Number(s):	SCC 131 of 2015 SCC 132 of 2015

REFSHAUGE J:

Michael Scerba was employed by the Department of Defence on 1 February 2012, as part of a graduate program of the Department. As part of his training and induction, he was provided with information regarding access to classified material and procedures for handling such material.

As…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Scerba (No 2)

Details

AGLC: R v Scerba (No 2) [2015] ACTSC 359
Case: [2015] ACTSC 359
Decision Date: 5 November 2015

CaseChat Overview and Summary

The appellant, Michael Scerba, was convicted of unauthorised disclosure of information by a Commonwealth officer and sought leave to appeal against his conviction and sentence. The case was heard by the High Court of Australia, which had to determine the legal issues surrounding Scerba's conviction and the appropriateness of his sentence. Scerba's appeal centred on two main legal issues: the causative link between his depression and his offending behaviour, and whether his culpability was reduced as a result; and whether the trial judge erred in relying on the forensic psychologist's report and self-reported information to determine his sentence.

The court considered the first issue and found that Scerba's depression did not causally relate to his offending behaviour. The court held that Scerba's culpability was not reduced because of his depression. The court also found that the trial judge did not err in relying on the forensic psychologist's report and self-reported information to determine Scerba's sentence. The court held that the trial judge was entitled to consider all the evidence before him and make findings of fact based on that evidence.

The court dismissed Scerba's appeal against his conviction and sentence. The orders made by the court included the conviction of Scerba, a sentence of twelve months imprisonment, and the forfeiture of certain items seized by the Australian Federal Police. The court held that the sentence was appropriate and reflected the seriousness of Scerba's offending behaviour. The court also held that the forfeiture of the seized items was appropriate because they contained sensitive information that Scerba had unlawfully disclosed.

Orders

Orders of the court

1. Michael Scerba be convicted of unauthorised disclosure of information by a Commonwealth officer.

2. Michael Scerba be sentenced to twelve months imprisonment to commence today, 5 November 2015.

3. On 4 February 2016, after serving three months imprisonment, and upon giving security in the sum of $500, Michael Scerba be released on the condition that he be of good behaviour for a period of two years.

4. Pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon application of the Director of Public Prosecutions, the following items, seized by members of the AFP during the execution of a search warrant at 65 Clift Crescent, Richardson in the ACT on 21 October 2012, be forfeited to the Commonwealth:

a. All hard drives contained in the black ‘ANTEC’ computer tower (item no 001 recorded on property seizure record A228052); and

b. 5 x shards/pieces of compact disc (item no MS/ET/45 recorded on property seizure record A228055)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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