R v Scerba (No 2)
[2015] ACTSC 359
•5 November 2015
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 |
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 a result, he obtained a security clearance at secret level and had access to documents of that level, if required in the course of his employment.
On 15 October 2012, he downloaded a classified sensitive document from the Defence secret network. He subsequently posted two pages on this document on a public image sharing website known as 4chan.
A former Defence Signals Directorate employee noticed the document on the 4chan website and reported the posting. Subsequently a serving member of the Royal Australian Navy saw a series of 4chan posts discussing the pages and he also reported the matter.
Police inquiries were conducted and, subsequently, Australian Federal Police executed a search warrant of Mr Scerba’s home and seized various items and conducted a forensic computer examination.
Mr Scerba was arrested. He was charged with the unauthorised disclosure of information as a Commonwealth officer.
The offence of unauthorised disclosure of information by Commonwealth officers is an offence against s 70 of the Crimes Act 1914 (Cth) and attracts a maximum penalty of imprisonment for two years.
The facts
I had a Statement of Facts, which the Crown tendered by consent. It was accepted to be an agreed of Statement of Facts and Mr Scerba had no dispute as to any fact in the Statement. From that Statement I can make the following findings, and I do so.
At about 2.24 pm on 15 October 2012, Mr Scerba accessed a Defence Intelligence Report of (the DIO Report), which had a classification of “secret.” That classification signifies that the unauthorised disclosure of this type of information could cause serious damage to Australia’s national security.
Mr Scerba was aware of that for, when he commenced employment, he had been provided with training and information regarding access to classified material and the meaning of the various classifications.
At about 2.24 pm on 15 October 2012, Mr Scerba accessed the DIO Report and requested a copy be saved to an alternate location.
The security clearance of Mr Scerba enabled him to have access to documents such as the DIO Report. He was, however, not required to access it for the purpose of his graduate position and thus it was an unauthorised access.
As a result, he was charged with unauthorised access to restricted data, an offence contrary to s 478.1 of the Criminal Code 1995 (Cth). An offence against that section renders Mr Scerba liable to a maximum penalty of two years imprisonment.
That offence, however, appeared in a document filed under s 16BA of the Crimes Act, which permits the court to take that offence into account when passing sentence for the offence with which he has been charged and for which he is to be sentenced.
At some stage, later in the evening of 15 October 2012, at a time that I am unable precisely to ascertain, it appears that two pages of the DIO Report were uploaded onto the 4chan website.
At about 11.00 pm that evening, a former employee of the Defence Signals Directorate was browsing that website and noticed a thumbnail image which appeared to have Defence Intelligence Organisation markings. He opened the thumbnail and saw that it contained two images, being two pages of what appeared to be a report marked “secret”, the first thumbnail containing the comment, “Julian Assange is my hero.”
The employee concluded that the pages were from a genuine Australian classified document and he noted that approximately fourteen people had commented upon the pages. As noted above, he reported the posting of the pages to the Department of Defence and his employer.
On 19 October 2012, a serving member of the Royal Australian Navy saw a series of 4chan posts which discussed the two previously posted pages.
The first post stated:
Hey, b, I posted SECRET caveat documents last night. Seems people thought it was ‘fake and gay’ despite not having the slightest clue what they actually look like.
The author of that post then described how the documents were obtained and said:
... trust my dismay when I got a bunch of ‘fake and gay’ remarks and the secret documents went 404 [a status code for ‘not found by web server’] about four comments one hour later.
So/b/ any other suggestions on how to minimise getting caught by authorities? I even go to the length of only posting the secret content on/b/ through open network wi‑fi as well.
Suggestions and you will be rewarded tomorrow.
The same author made twelve posts on 18 October 2012 about the pages, including a comment:
I release what I feel should be in the media. Bombings, civilian deaths, actions of the ‘terrorists’, that just are not reported in the media.
There were a number of responses by other website users, and one attached one page of the DIO Report, which had clearly been saved from the original posting.
As also noted above (at [5]), a search warrant was executed on Mr Scerba’s home and a broken disc, identified as from the same batch made as other discs located at his workplace, was found.
Forensic examination was made of his computer which provided information confirmatory of the facts as I have set them out above.
The Defence Intelligence Organisation is the Defence Strategic All‑Source Intelligence Assessment Agency, whose role includes producing intelligence assessments to support Defence and Government decision‑making. The DIO Report is an example of such intelligence.
The DIO Report is a highly sensitive document, each page of which contains sensitive information.
4chan is an online image board that hosts a number of different boards or topics. The boards are grouped under various themes and users can post images anonymously to such boards and others can posts comments about the images. While a posted image initially appears as a thumbnail, the thumbnail can be enlarged and saved to the viewer’s computer. Postings are anonymous and ephemeral and, in fact, in this case, the pages, as posted by Mr Scerba, appeared to have been accessible through the website only for about an hour but, as was clear from the posting of one page three days later, the pages could have been downloaded elsewhere and retained by any viewer.
As a result, it is not possible to determine definitely whether the publication of the pages by Mr Scerba has caused actual damage to Australia’s national security, for it cannot be known who saw the pages or otherwise obtained knowledge of the contents of the pages whether by downloading from an intermediary or otherwise. It cannot also be known who, in the future, may access copies of the pages which a viewer has downloaded.
If a foreign intelligence service obtained access to the information it is reasonable to assume that it would keep such access secret and seek to exploit the information.
The first two pages of the DIO Report which were posted, were potentially the most damaging because page 1 contained the “key judgments”, being a summary of the key intelligence assessments included within the report, and page 2 identified the intelligence sources used to develop the DIO Report, including secret reporting.
The DIO Report did not include the names of any human sources or individual intelligence collectors. Nevertheless, from these two pages alone a foreign intelligence service would be able to extract and exploit sensitive information on DIO’s assessments, capabilities and coverage, organisational structure and priority areas for Australian intelligence resources and efforts, to the detriment of Australia’s strategic interests.
The risks of harm fall into four categories:
1. Harm, including widespread and enduring harm, to Australia’s defence capabilities and intelligence assessments, which particularly applies to the first page downloaded.
2. Damage to Australia’s strategic relationships with other countries, which applies to both pages.
3. Undermining Australia’s relationships with its intelligence partners, which also applies to both pages.
4. Providing official confirmation of the style, form and manner of classified reports from the Defence Intelligence Organisation generally, which applies to both pages.
Subjective circumstances
Mr Scerba is 24 years old, the younger of his parents’ two children. He was born in Melbourne but, when he was two years old, the family moved to Canberra, where he has lived since then until his recent move to Sydney.
He described a generally caring, supportive and non‑abusive upbringing and he continues to have a good relationship with his mother, though his father is described as a strict disciplinarian, but not abusive, and he has a somewhat more distant relationship with him.
Mr Scerba had a somewhat lonely childhood with a limited network of friends. He often bullied other children and this further isolated him from his peers, meaning that he engaged in solitary activities including computer games.
He was educated at schools in Canberra and completed a Bachelor of Information Technology from the University of Canberra.
He had some employment while at school and thereafter and, since graduating, has mainly been employed in the information technology industry. He experienced a period of about twelve months unemployment following the termination of his employment at the Department of Defence and he then gained further employment with an IT company in Sydney. Unfortunately, his employment with that company was terminated when publicity about these proceedings came to the notice of the company. He continues to seek employment.
He has an unremarkable history of alcohol use and has neither experimented with nor used illicit drugs.
In about 2009, he formed a relationship with his present partner. The relationship has been generally supportive and positive but it broke down in about October 2012 as a result of Mr Scerba’s poor emotion coping skills subsequent to a period of depression. The couple reconciled in December 2012 and currently live together in Sydney. Mr Scerba’s partner continues to support him.
After Mr Scerba obtained a graduate position with the Department of Defence, he seemed to lose contact with his small social network of friends and became progressively isolated. He was unable to develop friendships with his fellow graduates which intensified his feelings of isolation. He became increasingly dissatisfied and despondent with his work.
By June 2012, he felt depressed, no longer gaining enjoyment from his activities, losing interest in socialising with others and withdrawing from his girlfriend and family. This led to the brief breakdown of his relationship with his partner, to which I have already referred, and he abruptly ceased taking antidepressant medication. He subsequently experienced suicidal ideation, feelings of worthlessness and a general sense of hopelessness for his future. It was in this context that he committed the offences with which he was charged.
Mr Scerba was examined by a forensic psychologist who diagnosed him with a major depressive disorder of mild severity. This was supported by a medical certification from his general practitioner, who states that, in April 2015, she was treating him for depression and she prescribed antidepressants and recommended he see a psychologist. The forensic psychologist also assessed him using a variety of personality functional and risk assessment instruments. As a result, the psychologist found that Mr Scerba was experiencing clinically minimal levels of anxiety and a mild level of depression and hopelessness.
He reported that Mr Scerba dampens his emotions and desires to reduce his anxieties and mistrust of others. His behaviour is typified by shyness, discomfort and awkwardness in social situations. He has a tendency to become isolated from everyday relationships and, as a result, pursues solitary activities such as computer gaming.
The psychologist opined that individuals suffering depression have an impaired ability to think, concentrate or make decisions and complain of memory difficulties. They often make decisions based on their distorted beliefs or thoughts, without appropriate consideration of possible consequential outcomes of the decision. The psychologist suggested that “often distressed individuals when confronted with the decisional conflict of competing needs/desires, focus the decisional conflict on resolving their own internal conflict, thus having an inward focus of attention.” In addition, the psychologist advised that “Impulsivity has been found to be affected by depression where greater levels of depression are associated with greater behavioural impulsivity.” The psychologist expressed the view that Mr Scerba’s poorly developed emotion coping skills, in addition to his personality characteristics, that provide emotion and relationship distance to others, predisposes him to experiencing depressive episodes more readily than other individuals.
He opined that, “on balance it is therefore more likely than not that Mr Scerba was experiencing a major depressive episode at the time of his offending.” He opined that, “with limited means to gain positive affect from others, Mr Scerba engaged in his offending in order to obtain positive feedback and positive regard of himself.”
It was submitted on behalf of Mr Scerba that the unchallenged evidence of his depression is also relevant in another way, namely as having a causal link with the offending.
That is relevant to the culpability of Mr Scerba, for the offences, as explained in R v Verdins (2007) 16 VR 269 at 276; [32]. I accept that the depression did impair Mr Scerba’s judgment, thus being causatively related to the offending, but I do not consider that it significantly or substantially reduces his culpability. As properly submitted by Mr P Edmonds, who appeared for Mr Scerba, it does not negative the need for general deterrence in the sentence to be imposed.
After conducting a number of risk assessments, the psychologist expressed the opinion that Mr Scerba currently poses a low risk for committing further offences relative to other offenders. Specific risks relate to his self‑defeating personality traits, poor emotion coping skills and unresolved symptoms of depression.
I note, too, that the recommendations made by the psychologist are being addressed, which will reduce Mr Scerba’s risk of re-offending.
I had a reference from Mr Scerba’s partner and two references from work colleagues.
The reference from his partner confirms the state of depression that Mr Scerba was feeling at the time he committed the offence and that he had been unable to think clearly about the potential repercussions of his actions.
2012 was obviously a difficult year, with both the difficulties that he was experiencing from the intestinal challenges that he was facing and also the psychological problems.
I had a report from a medical practitioner specialist who indicated problems that Mr Scerba had suffered from the infection of Helicobacter Pylori, which had made great difficulties for him in that year. He was subsequently cleared of the infection but he retained difficulties with Gastritis.
His partner indicated that she, too, suffered from depression but had been prescribed medication. She indicated that she shared her medication with Mr Scerba but that he frequently withdrew from her, both physically and emotionally, and, as a result, she ended the relationship. This caused him to stop taking antidepressant medication abruptly which, together with the deteriorating health and breakup, led to the very low point in his life.
She indicated that the offence was out of character for Mr Scerba as he had no prior contact with police and has shown no negative attitudes towards law enforcement. She said that she was certain he took responsibility for his actions and that he was unlikely to re-offend. Work colleague referees, who also had read the prosecution case statement, provided supportive references. He was described as “decent, mature, hardworking and trustworthy”. He is, “a diligent and responsible young employee who has been keen to progress his career in the IT industry”.
Both had discussed the offences with him and considered, from their knowledge, that he was unlikely to offend again.
As indicated above, Mr Scerba has no prior offences of which he has been found guilty.
The offence
The offence is clearly a serious one. Not only does it involve a breach of an obligation he had to his employer, it puts at risk, in this case, information that required a high level of security. The offence had, as the Agreed Statement of Facts clearly set out, the potential to cause harm to Australia’s national interest and had put that very seriously at risk.
It was submitted that Mr Scerba was not necessarily aware of the full extent of the risks, as described above. That may be so. I can accept, however, that a person with a security clearance of “secret” and training in the access and handling procedures of classified information would be specifically aware of the likelihood of risk to national security by the disclosure of such information. But, as a relatively new employee, he may not be fully aware of the actual extent of the risks. This does not seem to me, however, to reduce the seriousness of the offence to any significant degree.
Lest it be unclear, I accept that Mr Scerba did not intend to compromise, in a specific way, national security. He knew, however, that he was disclosing a document that, by its classification, had a real and significant risk of doing that.
One of the difficulties in this case is that the level of harm may never be completely known. Those persons who may be interested in using the information to adversely affect Australia’s interests are unlikely to reveal their knowledge of it. The gravamen of the offence, however, seems to me to be the risk that it posed. In this case, it is clearly less than, say, having the material published in a more permanent or accessible form such as a daily newspaper. I should not and do not assume that the worst case scenario will happen. I took the risk to be more than speculative but not inevitable.
While the publication was ephemeral, in the sense that it was probably only directly available for about one hour, it was able to be downloaded, which of course, would make its access longer‑lasting. The evidence was that at least one page had already been downloaded by one of the persons accessing the website.
Nevertheless, the evidence showed that the operating system for the 4chan website deletes posts once they have been superseded by new material or when the posting generates in excess of a specified amount of viewer responses or comments. In this case, all pages of the document placed on the website were subsequently deleted from the website. It appears that the original posting was deleted in about an hour.
It is not possible to say from the evidence how many people viewed the website, though some fifteen people definitely viewed it, nor how many, other than the person who reposted it, downloaded the two pages. That number does lessen the gravity of the offence as compared to an offence where large numbers had viewed the disclosure or it was published in a more permanent form.
I also note, as pointed out in Grant v Headland (1977) 17 ACTR 29 at 32, that Mr Scerba had a high duty not to communicate the information. It was, as Smithers J pointed out in that decision, “a special kind of duty arising, as it did, not in business or social affairs but in that of national security. It is the kind of duty a breach of which is not tolerable.”
One important issue in these proceedings was the question of breach of trust. The obligation to one’s employers has fiduciary qualities. As I pointed out in OH v Driessen [2015] ACTSC 148 at [138]-[144], not every circumstance or reliance or dependence involves a breach of trust.
In this case, however, the point that Mr P Edmonds, who appeared for Mr Scerba, made was a little different. Namely, that the offence could only be committed by a Commonwealth officer and the fiduciary relationship was an element of the offence. As such, it could not be an aggravating feature.
In my view that is right. I shall not consider the breach of trust as an aggravating factor in sentencing and in assessing the objective seriousness of the offence.
In the case of the other offence that I was asked to take into account, however, there was a breach of trust. Mr Scerba had access to the document but was obliged not to access it and in doing so breached the trust of permitted access and, left it to the duty of the officer not to access such documents except for an authorised purpose.
I also accept that there was no political motive or some ideological commitment to freedom of information in Mr Scerba’s motive for the offences. There was also no financial motive.
It is nevertheless a serious offence which requires an appropriately severe sentence.
Mandatory considerations
I must have regard to the matters set out in Pt 1B of the Crimes Act and specifically s 16A, which provides a checklist against which one is to determine the severity appropriate to all of the circumstances of the offence and of the offender. Section 16A(2) requires that I take into account such matters listed in it as are relevant to the matter.
The nature and circumstances of the offence
I have described the nature and circumstances of the offence above (at [9]-[24]). Mr Scerba deliberately took a document which he knew was classified as secret and to which he had no employment need to access. He published it on a public website, knowing that its publication gave rise to real risks of serious harm to Australia’s national security interests. There was a degree of planning and of detail in the execution of the offence.
The offence was therefore an objectively serious one, deliberately committed and in circumstances where Mr Scerba appeared to seek to avoid detection and the consequences of his action.
Other offences taken into account
I am asked to take into account the offence of unauthorised access to restricted data. While Mr Scerba had access to the document he was not required to access for the purposes of his employment and therefore his access was unauthorised.
It was, indeed, this access that meant he was able to commit the offence itself. I consider, as I am required to, that it is fit and proper to take this admitted offence into account. I am not aware of any consideration of this procedure in the Commonwealth sentencing sphere. It seems to me, however, that the appropriate approach is that set out by the Court of Appeal in this jurisdiction in R v Campbell [2010] ACTCA 20 at [46]-[50]. I shall proceed in that way.
Any injury, loss or damage resulting from the offence
As indicated earlier (at [28]), it is not precisely possible to know whether any specific harm has been suffered to Australia’s national security interest as a result of the offence. Indeed that may never be known. The risk, however, is real and, in my view, it is proper to take that into account. See R v Seivers & O’Ryan (Unreported, Australian Capital Territory Supreme Court, Gray J, SCC 160 and 161 of 2007, 10 June 2009) at [4].
Contrition
The Pre‑Sentence Report suggests that Mr Scerba accepted responsibility for his offending, acknowledged his breach of trust of the position he held within the Department of Defence, which in part constituted the offence, but “appeared to minimise the seriousness of his actions, not considering them to pose a serious threat to Australia’s national security interests”. This is, to some extent, confirmation of the evidence from his partner, to whom he “has expressed his guilt and frustration ... regarding his decisions”. She pointed out that he was at a low point in his life when he committed the offences and had “not been in the right frame of mind to think through clearly about the potential repercussions of his actions”. In light of the comments in the Pre‑Sentence Report, that appears to refer to the repercussions for him rather than his offending that appears to support it. His referees, again, referred to his regret, and, indeed, in one case, his remorse, but in terms that do not suggest a complete contrition that would allow this factor to feature significantly in any sentence.
There is some evidence of remorse but, in my view, of a limited level and yet to represent a full recognition of the wrongfulness, responsibility and consequences to others of his crime.
Plea of guilty
Mr Scerba pleaded guilty in this Court some four months after he had been committed to this Court but before a trial date was set. The prosecution was, however, required to complete pre‑trial requirements.
It was not an early plea but it was not a late plea and it has demonstrated a subjective willingness to facilitate the course of justice, as required in Cameron v R (2002) 209 CLR 339 at 342. Nevertheless, the prosecution was a very strong one and the compelling and uncontested computer evidence proved Mr Scerba committed the offence. Some discount is appropriate but it should not be substantial.
Co-operation with law enforcement agencies
Mr Scerba did admit that he was the user of the computer tower seized by police when executing a search warrant on his home. There was, so far as I can see, no other particular cooperation to which I should have regard. I take this into account.
The deterrent effect of the sentence on Mr Scerba
Specific deterrence in this case plays less importance because it is unlikely that Mr Scerba will be given access to confidential information in the future. Nevertheless, as with all offending, some penalty must be imposed that makes it clear to him that breaches of the law are unacceptable.
He has also lost further employment. Not just the obvious result of his offending, namely the Defence Department job, but also later employment, as referred to above (at [37]).
As the Federal Court has pointed out in Tapper v The Queen (1992) 39 FCR 243 at 247, the court can give weight to general deterrence, which is an important factor in offences of this kind. Gray J pointed out in R v Seivers & O’Ryan at [9] “the necessity to reflect the importance of maintaining the security of national security information by deterring others who might be minded to breach provisions of this nature”. General deterrence, accordingly, requires to be appropriately represented in the sentence.
Adequate punishment
I refer, again, to the comments of Gray J in R v Seivers & O’Ryan at [9] where, in a case involving the information in possession of an officer of the Australian Security Intelligence Organisation (ASIO), a similar offence, his Honour considered that he “must consider imprisonment as the appropriate punishment”.
Nevertheless, Smithers J held in Grant v Headland at 33, where another officer of ASIO attempted to communicate proscribed information, held that “[i]n a case like this it is the fact of incarceration rather than its duration which is the most effective punishment”. This is, of course, a form of the response often represented by the notion of “the clang of prison gates” principle. See Bedford v Earl [2015] ACTSC 306 at [9]-[10].
The character, antecedence, age and physical and mental condition of the person
I have set out these matters above (at [33]-[57]), and do not need to repeat them. At the time of the offending Mr Scerba was a relatively young man and of prior good character, which, indeed, was a prerequisite for his recruitment for the position. That, perhaps, means less weight should be given to that factor, as a mitigating factor, as pointed out in R v Kennedy [2000] NSWCCA 527 at [21]. I accept, however, that the offending was therefore aberrant behaviour.
To his credit, there has been no further offending of any kind since the offences were committed, now nearly some three years ago.
There is no doubt that Mr Scerba was severely depressed by the time of the offence. That is clear from the opinion of the forensic psychologist. The Crown submitted that I should not give that report much weight. Naturally, much of the information on which the psychologist relied came from the self‑reporting of Mr Scerba, and I note that Mr Scerba did not give evidence on his own behalf. In Qutami (2001) 127 A Crim R 369 at 377; [58], Smart AJ made the following comment:
In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists to psychologists. While those statements are admissible in evidence a very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.
There was no indication in the reasons for judgment as to what those statements were. Often such statements are simply expressions of remorse, explanations for offending and the like. It seems to be likely that they were those kind of statements in that case because of the comment later made by Spigelman CJ, who said, at 380; [79], while agreeing with the observations of Smart AJ:
The limited weight that ought to be given to self‑serving untested statements made to experts which are tendered in sentencing hearings.
Ms K Haigh, who appeared for the Crown, submitted that I should apply that approach to the report of the forensic psychologist. I am not certain that this is appropriate in this case, in relation to the whole report. There are two reasons for this: In the first place, the evidence from the forensic psychologist, on which I rely, relates to Mr Scerba’s mental impairment and likely relationship to the offending. In this case, it was based on the following:
· a report from Mr Scerba’s general practitioner, who confirmed the diagnosis of depression and medication for the condition;
· properly validated testing undertaken by the forensic psychologist; and
· confirmatory material in the reference from Mr Scerba’s partner, which was admitted without challenge.
While none of this material was “tested” in a sense that the authors were not subject to cross‑examination, there was a considerable body of expertise applied to the making of the opinions expressed and they were not simply “self‑serving statements” reported by the experts.
Where, however, the report simply repeats what Mr Scerba said to the psychologist, I accept that I should treat that with some caution, in the circumstances.
I accept, accordingly, that Mr Scerba was depressed and this likely impaired his judgment but I do find that he knew what he was doing and that it was wrong. The posts themselves make that clear.
Consideration
I have carefully considered all the matters to which I have referred and, in particular, the matters to which I must have regard under s 16A of the Crimes Act, and also the offence which Mr Scerba has asked me to take into account.
I have also had regard to the comparable cases that were relied on by the Crown. They were not directly comparable, as is rarely the case, but they did provide a helpful indication of, for example, the seriousness with which such offences are to be regarded. They also show that a custodial sentence is required, though precisely how it is to be served is still dependent on the precise circumstances of the offending and the offender.
I accept that no other sentence than a sentence of imprisonment is appropriate. The seriousness of the offence is moderated to a very limited degree by the circumstances in which it was committed, namely Mr Scerba’s depression, exacerbated by the relationship breakup. I also have regard to his relative youth. Nevertheless the seriousness of the offence requires a sentence of imprisonment.
I have anxiously considered whether any term of imprisonment should be served by periodic detention and have formed the view that it is not an appropriate disposition in this case.
Mr Scerba, please stand.
1) I convict you of disclosure of information it was your duty not to disclose.
2) I sentence you to twelve months imprisonment, to commence today. Had you not pleaded guilty, I would have sentenced you to fifteen months imprisonment.
3) I direct that on 3 February 2016, that is after serving three months imprisonment, and upon you giving security in the sum of $500, you be released on condition that you will be of good behaviour for a period of two years.
I also order, pursuant to s 23ZD of the Crimes Act 1914, and upon the application of the Director of Public Prosecutions, that the following items, seized by members of the Australian Federal Police during the execution of a search warrant on 65 Clift Crescent, Richardson in the ACT on 21 October 2012, are forfeited to the Commonwealth:
1) All hard drives contained in a black ‘ANTEC’ computer tower (item number 001 recorded on property seizure record A228052); and
2) Five shards/pieces of compact disc (item number MS/ET/45 recorded on property seizure record A228055).
[His Honour then spoke directly to Mr Scerba]
Mr Scerba, I need to explain to you that I have assessed the term of imprisonment - the seriousness of the offending, as deserving of 15 months imprisonment. I have discounted that for your plea of guilty and I have directed that you only serve a small portion of that, but that you have to serve that in full‑time custody because of the seriousness of the offence. On 3 February next year you will be released and you will have to give a reconnaissance – that is a promise that you will not commit any further offences for the next two years.
If you commit any such further offence then you will be brought back to the court and the court can reimpose the sentence, or any part of the 12 month period that has not been served by you, in addition to dealing with whatever offence it is that you have already committed.
| I certify that the preceding one hundred and three [103] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 15 December 2015 |
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