Whistleblower fucked over by Government Agency
New South Wales
District Court
| CITATION: | Regina v Allan Robert Kessing [2007] NSWDC 138 | |
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| HEARING DATE(S): | 6/3/2007 to 27/3/2007, 25/5/2007 |
| JUDGMENT DATE: |
29 June 2007 |
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| EX TEMPORE JUDGMENT DATE : | 22 June 2007 |
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| JURISDICTION: | Criminal |
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| JUDGMENT OF: | Bennett SC DCJ |
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| DECISION: | Convicted, sentenced to imprisonment for 9 months, the offender to be released forthwith, conditionally upon entering into a recognizance in the sum of $1,000.00, without surety, to be of good behaviour for 9 months, with the condition that if called upon to do so at any time during the period of the recognizance, to appear before Court. |
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| CATCHWORDS: | CRIMINAL LAW - SENTENCE - COMMONWEALTH OFFENCE - disclosure of information by former Commonwealth Officer | |
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| LEGISLATION CITED: | Crimes Act, 1914 (Cth) ss.70(2), 16A, 17A(1), 20(1)(b) |
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| CASES CITED: | Regina v Isaacs (1997) 41 NSWLR 374 R v Riccord (Unreported - 9/5/1997 - NSWCCA) Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 DPP (Cth) v El Karhani (1990) 21 NSWLR 370 |
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| PARTIES: | Commonwealth Crown Allan Robert Kessing |
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| FILE NUMBER(S): | 06/11/0909 |
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| COUNSEL: | Commonwealth Crown - Mr L Crowley Defence - Mr P Lowe |
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| SOLICITORS: | Ms E McKenzie - Cwth DPP Solicitor Mr J Weller, Solicitor of Joe Weller Solicitors |
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 | Introduction 1 Allan Robert Kessing, the offender, appeared for trial before his Honour Judge Puckeridge in the District Court Sydney on Monday 5 March 2007. Before a jury was selected, the Crown Prosecutor informed his Honour that there were issues to be raised on behalf of the offender to be decided before the trial could commence. Thereafter, his Honour heard and determined a number of pre-trial issues. 2 On Tuesday, 6 March 2007 the offender appeared before me for trial after Judge Puckeridge was allocated to other proceedings. 3 The offender was arraigned and pleaded not guilty in the absence of a panel from which the jury was to be selected. There followed a discussion with regard to the way the Crown intended to present its case, which was entirely circumstantial, and with regard to evidence and procedural matters that might need to be resolved by me in the course of the trial. 4 Shortly thereafter, in the presence of the jury panel, the accused was arraigned upon an indictment containing one charge contrary to section 70(2) of the Crimes Act, 1914 (Cth) that he:
5 The offender pleaded not guilty. The jury was selected and the trial proceeded. The trial continued over fifteen days and on Tuesday, 27 March 2007 the jury returned with a verdict of guilty. 6 The offender did not give evidence and did not call evidence in the trial. 7 Thereafter, the Crown tendered a record of the offender’s antecedents and the proceedings were adjourned for the proceedings on sentence to continue on a later date. Proceedings on Sentence. 8 The offender appeared before me in the District Court, Sydney on Friday, 25 May 2007. The Crown presented a folder of material the contents of which included submissions on sentence and the pre-sentence report prepared for the assistance of the court. This material was marked Exhibit A. 9 Included in Exhibit A is a statement from Gail Jennifer Batman, Regional Director, New South Wales, Australian Customs Service. 10 The Crown was given notice that Ms Batman would be required for cross-examination and she was called for that purpose. At the conclusion of this cross-examination the Crown closed its case on sentence. Counsel for the offender tendered a copy of a report by Sir John Wheeler, marked Exhibit 1. Submissions followed. 11 The offender did not give evidence in the proceedings on sentence. The Facts 12 The Crown alleged that in the course of his former work as an officer of the Australian Customs Service, the offender came into possession of the two reports described in the charge, and between 10 May 2005, when he resigned from his position as a customs officer, and 31 May 2005, he communicated the content of these documents to Mr Chulov and Mr Porter, who were at the time employed as journalists with The Australian newspaper. 13 The jury having returned a verdict of guilty it is now my task to consider the evidence that was presented in the trial and proceed to find facts upon which I may impose sentence. The assessment of the facts must be according to the evidence and consistent with the verdict of the jury. I am not bound to impose sentence according to findings of fact that are the most favourable or advantageous to the offender, however, the findings that are to be made must be arrived at beyond reasonable doubt: Regina v Isaacs (1997) 41 NSWLR 374. 14 The contest between the Crown and the offender in this trial was focussed essentially upon whether it could be established beyond reasonable doubt that it was the offender who communicated to the journalists content of the two reports particularised in the charge. 15 In his opening remarks to the jury, counsel for the offender acknowledged that not all of the elements of the charge were in dispute. He identified first the status of the offender as a Commonwealth officer and an officer of the Australian Customs Service. Nor was it in dispute that the subject reports came into his possession by virtue of that status. Counsel informed the jury that what was in dispute was the proposition that the offender communicated the contents of the documents, or either one of them, to either of the two named journalists. 16 As the trial unfolded there were questions raised relevant to other issues but ultimately they became less important if not entirely without significance. 17 Initially, counsel for the offender indicated that he would not object to the tender of copies of the newspaper articles in which reference was made to the reports. He indicated that he would consent to the tender upon a provisional basis, as he described it, subject to the qualification that at the end of the day it was for the Crown to prove that there was a disclosure to the named individuals in the indictment. Ultimately, the issue as to the fact of the publication of the newspaper articles on 31 May 2005 was not contested. 18 Counsel for the offender also made reference in his opening remarks to the notorious prosecution of Schapelle Corby in Indonesia, and suggested the connection between that matter and airport baggage handlers. He cross-examined with regard to this, to suggest that there was some justification for the disclosure of the contents of the reports, whoever might have been responsible for it. Since the offender denied any involvement in the communication, and continues to maintain that position, there could not sensibly be any claim by him that he had a lawful justification or excuse, the proof of which was upon him: section 70(2) Crimes Act 1914 (Cth). Counsel did no more than make an oblique reference to such matter in his closing address. 19 This aspect does have significance, however, in the present phase of these proceedings, and I shall make further reference to that in due course. 20 The work on the first report given the name, ‘Threat Assessment of Airport Security Screening Personnel Sydney Kingsford Smith Airport’, was commenced at some point about mid-2002 until the beginning of 2003 by a team, which included the offender as a researcher, led by Caterina Magni, also a customs officer slightly more senior than the offender. The report focussed upon an organisation, and individuals within it, operating at Sydney Kingsford Smith Airport. According to Ms Magni, the report was prepared upon information held from past work, additional information brought to her by the team assembled for the preparation of this report, the product of covert electronic surveillance, and information acquired by way of background checks upon the organisation and its staff. 21 Ms Magni said she wrote the report, and that it was complete in February 2003. She gave the report to her supervisor, and he provided a copy to another manager, John Valastro. Ms Magni had intended that the document be distributed more broadly but it did not find its way to any higher levels of management. Mr Valastro did not disseminate the document further. 22 In his evidence, Mr Valastro described this document as a review of a list of people working in certain parts of the airport whose names had been put through a number of different systems to ascertain whether they had links to criminal or other indices, and to determine whether they ought to be targeted. He described the document as sensitive because individuals were named, and because of the work that had been undertaken in respect of them. It was not a document that would be published widely because of operational security, other than to perhaps be made available to other agencies such as the Australian Federal Police and the Australian Crime Commission with which Australian Customs engaged upon joint operations from time-to-time. He said that publication of the material could compromise the security required for operational activity and methodology. 23 His assessment of the report was that it was inadequate and he was of the view that more work was required before any decision to embark upon an operation could be made. He referred the document back to its source and to another branch of Australian Customs for further development of the material contained in it. 24 Later in that same year Ms Magni prepared the second report given the name ‘Sydney Airport - Air Border Security Risk Analysis 2003’. This report was also known as the ‘Tarmac Report 2003’. The same methodology was employed. The second report referred to all organisations operating at a particular location at the airport, with additional material relevant to the organisation discussed in the initial report. 25 The second report was also passed on to her supervisors for dissemination to other levels of management within Australian Customs. 26 Mr Valastro was provided with the second report and took the view that the conclusions regarding the levels of risk attributed to the particular areas identified were not justified according to the material upon which they were advanced. He was not prepared to further disseminate this report without what he described as more robust work in relation to those matters. He was also concerned about what he believed to be comments made regarding the ethnicity of groups working in the areas discussed. As with the first report, publication of this report to the broader public could compromise operational activity and methodology. 27 The preparation of these reports was not a task that was allocated to Ms Magni. She initiated the projects herself. She gave the reports the classification ‘Highly Protected’. As it turned out this classification was higher than the documents required. The evidence led in the trial was to the effect that the appropriate classification for these documents was ‘Protected’. 28 Sections of these reports were quoted in articles published in The Australian newspaper on 31 May 2005. A photocopy of those articles and a copy of the newspaper in which they were published became Exhibit F in the trial. The articles included passages quoted directly from the reports together with descriptions of their subject matter including:
30 The impact of the publication of this material was described in the statement by Ms Batman included in Exhibit A, tendered in the sentence proceedings. 31 Following the newspaper publication she was required to attend upon a number of inter-departmental committees, and the Minister responsible for Australian Customs, to discuss the information exposed. She was required to appear and give evidence before a Parliamentary Joint Committee. She represented in her statement that the unauthorised disclosure of this material significantly damaged the reputation of the Australian Customs Service with the Minister, the Parliament, and with other agencies. She expressed the opinion that the publication impacted upon the organisation’s reputation generally, had the potential to undermine community support and trust in Customs, and that it created a loss of confidence from other law enforcement agencies. She referred to what she described as intense media scrutiny to which Customs was subject, until aspects of the articles which were not accurate had been refuted in the aforementioned forums. Her statement included the following passage at paragraph 9:
32 She makes the obvious point that law enforcement agencies, such as Australian Customs, manage highly confidential and sensitive information in the course of their work that must not be compromised by unauthorised disclosure of that information. 33 Cross-examination of this witness provided the opportunity for her to amplify certain parts of her statement in the course of which she acknowledged the outcomes from the report by Sir John Wheeler, Exhibit 1, including the allocation of funding. She did not accept that the report criticised Customs to the extent put to her, and she pointed out that the newspaper articles were inaccurate in certain respects. 34 She acknowledged that there was no actual compromise to operations as a result of the newspaper publication. 35 Counsel for the offender asked me to consider specific aspects of the report of Sir John Wheeler. The report is named ‘An Independent Review of Airport Security and Policing for the Government of Australia’ and was published in September 2005. 36 The Terms of Reference, at p.vii include in the preamble reference to the events of 11 September 2001 and the measures taken thereafter to strengthen aviation security, and continues with the following:
37 The Terms of Reference were to review the threat from serious and organised crime at airports and related cargo areas within Australia, to make recommendations to strengthen the integration of ground based aviation security, and to review the adequacy of current ground based aviation security requirements put in place in response to threats of terrorism, including in relation to the following matters relevant to these proceedings:
38 I was asked to note paragraph 10 on p.x of the report, which is in the following terms.
39 I was also asked to note paragraph 11 on p.xi. This refers to the recognition in the Terms of Reference of the community’s concern about criminal activity at Australian airports, in respect of which it is said that the Review had great difficulty in obtaining comprehensive airport crime data. It is said that there is a culture of under reporting and tolerance of thefts at airports and related cargo areas, and that police are rarely on site. It continues:
40 Finally, I was invited to p.51 in the main body of the report at paragraph 2 of Chapter 7, which recommends changes to procedures which inhibit the sharing of information between law enforcement agencies, and the amendment of legislation limiting and proscribing the dissemination of information between those bodies, including the amendment of privacy legislation to the extent that it has this effect. 41 The paragraph includes the following passage:
Findings 42 The Crown reminded me that I must have regard to the matters set out in Pt.1B of the Crimes Act, 1914, and specifically the matters provided in section 16A which provides a check list against which one is to determine a sentence of a severity appropriate to all of the circumstances of the offence. Section 16A(2) requires that I take into account such matters listed therein as are relevant to the matter. I now propose to do so. Section 16A(2)(a)- the nature and the circumstances of the offence 43 I am satisfied beyond reasonable doubt of the following facts:
44 The Crown submits that the trial Exhibits E and M provide evidence that the offender was a disgruntled employee as a consequence of his treatment as such and his perception of the lack of action taken in relation to the reports in the preparation of which he had some role. I believe there is merit in this. 45 Exhibit E is a series of emails communicated between the offender and his managers when he was overseas in Ireland and had failed to return to work at the appointed time. The import of the messages is that he had a back complaint which he represented as being the sequelae of a compensable injury from the past, that the claim required support in the form of a medical assessment at the place from which he was communicating, and that he had difficulty finding a medical practitioner who would provide the material required by his managers. His leave was extended, but the point was reached when the patience of management had dissipated and he was to be counselled and re-deployed upon his return. These emails were sent between 14 May 2004 and 1 November 2004. 46 Exhibit M is an email from the offender to a former colleague on 9 June 2005. On any view of that document he is displeased with the senior officers named, such that, according to the email, he resigned promptly by way of a letter in which he wrote simply, ‘I RESIGN’. 47 However, these emotions are to be viewed in light of the demise of the offender’s mother near to the time when the offence was committed. She passed having suffered terminal leukaemia through which the offender provided care for her. He became aware of her illness upon his return from overseas. Although the evidence of the impact from this is scant, and as noted the offender did not give evidence, there is sufficient material before me to come to the view that he cared for his mother, that he provided care for her through her illness and final days, and that it would be expected that this would have caused him some measure of emotional distress, contributing to the decision to communicate this material. 48 The Crown points to this as an objectively serious offence involving a significant breach of trust. The offender was bound to observe confidentiality and failed to do so. These obligations continued after his employment came to an end with his resignation. It is said that general deterrence is to be given significant weight: R v Riccord (Unreported 9/5/1997 NSWCCA). 49 On behalf of the offender it is suggested that there was a great deal of good that came from the publication of these articles, including the appointment of Sir John Wheeler, the product of his Review, and the action taken by government thereafter. It was submitted that this provides significant mitigation. 50 I should consider these submissions in some detail against the background of the approach taken at the trial and the public comment that has followed the guilty verdict. 51 The Crown was put to strict proof with regard to the allegation that it was the offender who communicated the content of these reports to the journalists. The case, from beginning to end, was conducted according to the proposition that he did not do so. There was extensive cross-examination of witnesses called in the Crown case to establish the opportunities that were available for others to communicate the content of these reports to the journalists. 52 At the same time, however, with reference made to the Corby matter in Indonesia and to an operation that led to the apprehension of a number of individuals charged with the importation of cocaine through Sydney Airport, the proposition that the publication of these reports was in some way an act of public service was sought to be developed. 53 The implication in this is that the offender had not communicated the contents of the reports, but if he was found to have done so, it was with justification because the public had an interest in knowing what was contained in these documents. Section 70(2) of the Crimes Act, 1914 provides for the defence of lawful justification or excuse, the proof whereof was for the offender had he wanted to justify his actions before the jury. The offender persisted and persists with his denial of this conduct. 54 It has been impossible to ignore entirely the publicity that this matter has attracted since the trial and the comments offered in the electronic and print media in terms that the offender should be shown gratitude for what he has been found to have done. There is a significant level of sympathy for the offender. 55 Although aware of some of these publications I have placed them aside from the matters that I bring to account for the determination of sentence. They are not before me as evidence and are not relevant to that question. 56 In the submissions made by the learned Crown, my attention was taken to Commonwealth of Australia v John Fairfax & Sons Limited (1980) 147 CLR 39 and the observation of Mason J at p.52 regarding the unacceptability in this democratic society of restraint upon the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action. His Honour made the point that the court will determine any claim of confidentiality by the government by reference to public interest. Unless disclosure is likely to injury the public interest, the information will not be protected. 57 One could not cavil with this principle. 58 This said, I do not accept the submission that the evidence presented in these proceedings establishes that there was a shortfall in the standards to be expected of the Australian Customs Service such as to justify the belief that has been attributed to the offender by those who presently applaud his conduct. 59 However, accepting that it is in the public interest to expose the inadequacy of an agency of government manifested by its failure to respond in a timely fashion to an internal report generated at the lower levels of the organisation to inform management of operational and related concerns, that is an entirely different matter from the unauthorised dissemination of the information harvested in the course of operational activities and the intelligence developed therefrom, upon which the report was generated, such as has occurred in this instance. 60 Whether or not it is appropriate to view the offender in the heroic light with which he has been bathed by some for having exposed what he represents to be inadequate aspects of management within the Australian Customs Service concerned with Sydney Airport, there was no justification whatsoever for the communication of the content of these reports. It has been conceded that there is no evidence of any particular operations having been put at risk, and there is no evidence that any particular law enforcement officer or group of law enforcement officers were put at risk by reason of this publication in the course of operational duties including those of a covert nature. However, I accept the submission by the Crown regarding the potential that the conduct of which the offender has been found guilty had for doing so. At his level within Australian Customs one would not expect the offender to know the extent of operations being undertaken by this service or other law enforcement agencies whether conducted individually or under the auspices of a co-ordinated project. Had there been any such projects under way, in any way connected with the organisations and individuals employed at Sydney Airport to which the newspaper articles have referred, it is at least probable the operations and those engaged upon them in any covert capacity would have been at some risk. 61 Additionally, the content of the articles published in the newspaper have the capacity to taint the reputation of people engaged in work in the specific areas identified at Sydney Airport whether or not the suspicions represented could ultimately be shown to have had any merit. Even accepting that there was justification for these suspicions, it would be surprising to find that all of those engaged in those areas of work would be shown to be engaged upon criminal conspiracies such as the articles described. Nevertheless, those who were innocent of any wrongdoing must still bear the ignominy of the general allegations made, some of which were expressed with reference to cultural and religious characteristics of the persons discussed. 62 Relevant to the assessment of the impact of the newspaper articles is the source from which they were prepared, identified within them, and likely to have been viewed as entirely authoritative irrespective of the weaknesses that have been identified in the reports themselves. 63 I agree with the submission made by the Crown that this is to be assessed objectively as a serious offence. I also bring to account the breach of trust demonstrated by the offender in its commission. Section 16A(2)(e) - the loss and damage resulting from the offence 64 I accept the evidence given by Ms Batman, but I note that the perception that might have developed at the time of and shortly after the newspaper articles were published, at least within the law enforcement milieu and other official relationships, was resolved shortly thereafter. Moreover, the report from Sir John Wheeler was not entirely critical of Australian Customs. Indeed, he approached his Review with regard to the role of law enforcement agencies in the relevant contexts generally. 65 This said, I have taken into account the nature of the information that has been published at large, the potential it had for harm to ongoing operations and the methodologies employed, and the damage to the reputation of Australian Customs amongst the general public reflected in some measure by the views of those who have publicly supported the conduct of the offender. Section 16A(2)(f) - the extent of contrition 66 Clearly there is none. The offender persists with the representation that he did not commit the offence and that in any event the conduct was justified. So much is made clear in the pre-sentence report included in Exhibit A. Section 16A(2)(h) - co-operation with law enforcement 67 Once again there has been none. Section 16A(2)(j) & (k) - deterrence of the offender and adequate punishment 68 Although not itemised in this provision, the deterrence of others from such offences is a relevant consideration: DPP (Cth) v El Karhani (1990) 21 NSWLR 370. This is a significant consideration in this case. 69 However, specific deterrence of the offender is not so significant in my assessment. Although he has shown no contrition, his circumstances are such that I am persuaded that there is little risk of him re-offending. The pre-sentence report refers to the question of supervision of the offender in the community and records that he will be unlikely to benefit from it. I accept this as correct, in light of his otherwise good character, and the dissipation of the factors that I find contributed to his decision to commit these offences, namely, the dissatisfaction with his employment within Australian Customs at the material time and the unfortunate demise of his mother. Section 16A(2)(m) - character, antecedents, age, means and physical and mental condition of the offender 70 The offender is fifty-nine years of age and has only one conviction for an offence of dishonesty from many years ago. It was minor and of no significance to the present day. I have disregarded it. 71 I note that there is evidence of his back complaint before me in the emails exhibited in these proceedings. 72 There is no other evidence to demonstrate that the offender might find incarceration arduous. 73 He is a person of good character. No other view can be taken in the circumstances. He has given extensive and what is said to have been valued service as an officer of the Australian Customs Service over many years. It is quite apparent to me that this conduct of which he has been found guilty, more correctly described as misconduct, is entirely an aberration. Section 16A(2)(n) - the prospects for rehabilitation 74 This presents something of a challenge, for in the absence of an acknowledgement of the verdict of the jury, and the persistence with the proposition that the disclosure of the material was justified, it cannot be said that the offender has prospects for rehabilitation from the offending of which he has been found guilty. 75 However, as earlier stated, I am persuaded that there is little chance of him committing another such offence. The appropriate sentence 76 I am of the view, for the reasons earlier explained, that this offence is objectively very serious. 77 Notwithstanding that there were stressors impacting upon the offender at the material time by reason of the illness of his mother and the difficulties he was having with the managers to whom he was responsible in his work, reflected in the trial Exhibits E and M, he was an experienced customs officer of mature age, and I am satisfied that he well knew that he was doing wrong at the time of the communication of the contents of these reports. 78 I note in the assessments in the pre-sentence report that he is suitable for community service, but there is the qualification there reported that no available developmental program would significantly benefit him. In the circumstances I agree with this observation. 79 He is assessed as unsuitable for periodic detention for reasons not explained. No inference adverse to the offender should be drawn from that representation. 80 I have considered options other than the imposition of a custodial sentence: section 17A(1) Crimes Act, 1914 (Cth), but I believe that this misconduct is so serious that no other course should be taken. 81 I have reviewed the various decisions provided by the Crown to assist with the assessment of the sentence required in this case. I find that the course I propose is well within the range of sentencing options appropriate to the offending on this occasion. 82 The Crown has conceded that an appropriate course in this case is to apply section 20(1)(b) of the Crimes Act, 1914. I agree and I propose to do so. 83 The offender is convicted and is sentenced to imprisonment for a period of nine months. Pursuant to section 20(1)(b) of the Crimes Act, 1914 (Cth), I order that the offender be released forthwith conditionally upon entering into recognizance in the sum of $1,000.00, without surety, to be of good behaviour for a period of nine months. 84 It is a condition of the recognisance that if the offender is called upon to do so at any time during the period of this recognizance he is to appear before court. In the circumstances, there is no need for any further conditions to attach to the recognizance. 85 The nature of the sentence and the consequences of any failure to observe the terms of the recognisance were explained to the offender. Addendum: The maximum penalty for the offence upon which sentence was imposed upon the offender is imprisonment for 2 years. Through oversight, this was not expressly referred to in the remarks on sentence. However, it was a matter of which the Court was reminded by the Crown in submissions and was brought to account.
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