Citation: Regina v Allan Robert Kessing [2007] NSWDC 138
Court: District Court of New South Wales
Date: 29 June 2007
Judge(s): Bennett SC DCJ
Background
The offender was a former officer of the Australian Customs Service who, following his resignation in May 2005, communicated the contents of two sensitive internal reports to journalists employed by The Australian newspaper. The reports related to airport security at Sydney Kingsford Smith Airport: one assessed threats posed by airport security screening personnel, and the other was a risk analysis of air border security known as the "Tarmac Report 2003." Both documents had come into the offender's possession by virtue of his role as a Commonwealth officer.
After a fifteen-day jury trial before Bennett SC DCJ, the jury returned a verdict of guilty on one charge under section 70(2) of the Crimes Act 1914 (Cth). The offender did not give evidence at trial and continued to deny that he had communicated the contents of either report to the named journalists. The proceedings then moved to sentencing.
The central factual dispute at trial was whether the Crown could establish beyond reasonable doubt that it was the offender who had disclosed the documents. The jury resolved that question against him.
Legal Issues
- Whether, for the purposes of sentencing, the court could make findings of fact adverse to the offender, and to what standard those findings needed to be established
- Whether the seriousness of the offending warranted a custodial sentence rather than an alternative disposition
- Whether section 20(1)(b) of the Crimes Act 1914 (Cth) was an appropriate vehicle for the sentence, permitting immediate release on a recognizance
Decision
On the question of fact-finding at sentence, the court applied the principle in Regina v Isaacs (1997) 41 NSWLR 374, holding that findings must be consistent with the jury's verdict and must be established beyond reasonable doubt. The court was not required to adopt findings most favourable to the offender.
The court considered the offender's personal circumstances, including stressors arising from his mother's illness and workplace difficulties with managers. Despite these factors, the court was satisfied that the offender, as an experienced customs officer of mature age, knew he was acting wrongly at the time of the disclosure. The court found no basis on which the offender could assert lawful justification or excuse, noting that since he continued to deny any involvement, he had made no such claim.
Having considered options short of imprisonment under section 17A(1) of the Crimes Act 1914 (Cth), the court concluded that the misconduct was sufficiently serious to require a custodial sentence. The court agreed with the Crown's concession that it was appropriate to proceed under section 20(1)(b), which allowed for immediate release on a recognizance rather than actual imprisonment. The maximum penalty for the offence was two years' imprisonment.
Orders Made
- The offender was convicted of one charge under section 70(2) of the Crimes Act 1914 (Cth)
- Sentenced to imprisonment for nine months
- Released forthwith pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth), conditionally upon entering into a recognizance of $1,000.00, without surety, to be of good behaviour for nine months
- A condition of the recognizance required the offender to appear before the court if called upon to do so during the nine-month period
Key Takeaways
- Under section 70(2) of the Crimes Act 1914 (Cth), a former Commonwealth officer commits an offence by communicating, without lawful authority or excuse, the contents of documents that came into their possession by virtue of that role, even after they have resigned from their position.
- Findings of fact at sentence must be consistent with the jury's verdict and established beyond reasonable doubt, following Regina v Isaacs (1997) 41 NSWLR 374; the sentencing court is not obliged to adopt findings most favourable to the offender.
- A defendant who denies all involvement in the offending conduct cannot simultaneously advance a claim of lawful justification or excuse under section 70(2), as that defence requires the defendant to establish it affirmatively.
- Where an offender is assessed as unsuitable for periodic detention and no community program would significantly benefit them, a suspended custodial sentence under section 20(1)(b) may be appropriate where the seriousness of the offending requires acknowledgment through a formal term of imprisonment.
- The District Court treated the offender's experience, maturity, and awareness of the wrongfulness of his conduct as relevant factors weighing against mitigation, notwithstanding acknowledged personal stressors at the material time.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), ss 70(2), 16A, 17A(1), 20(1)(b)
Cases:
- Regina v Isaacs (1997) 41 NSWLR 374
- R v Riccord (Unreported, NSWCCA, 9 May 1997)
- Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39
- DPP (Cth) v El Karhani (1990) 21 NSWLR 370