The former spy known as “Witness K” has been spared jail time and instead handed down a three-month suspended sentence after pleading guilty to conspiring to reveal classified information.
The former officer in the Australian Secret Intelligence Service had been charged over his role exposing Australia’s plans to secretly eavesdrop on the government of Timor-Leste during sensitive oil and gas negotiations in 2004.
The sentencing result came after an extraordinary court hearing at the ACT Magistrates Court, where Witness K had appeared behind makeshift black walls to conceal his identity.
Magistrate Glenn Theakston on Friday issued the decision noting Witness K had been motivated by a sense of justice rather than for any personal gain.
But he maintained the sentence would be recorded as a conviction, saying the decision must affirm the need to protect information attaining to Australia’s national security.
The case had been heard in the ACT Magistrates Court, where reporters were shuffled in and out of the hearing at times so the court can consider confidential information.
Witness K’s former lawyer Bernard Collaery is also facing separate court action related to the case.
Lawyers acting for Witness K on Friday argued that the government should not make an example of the man for the means of deterring others, and that he should be spared jail time.
Lawyer Robert Richter said Witness K’s long-term struggles with mental illness – including at the time of his offending – must be considered in his sentencing.
“It would be inappropriate to deal with Witness K with (general) deterrence,” Mr Richter told the court.
“It is clear he suffered from a number of conditions including post-traumatic stress and depression.”
Magistrate Glenn Theakston is considering several medical reports detailing the health of Witness K – a former officer in the Australia Secret Intelligence Service.
Prosecutors acting for the government argue Witness K disclosed the details of the plan to bug the Timor-Leste government through documents provided to Mr Collaery.
The court heard on Friday that Mr Collaery then conducted media interviews “asserting ASIS had done certain things in Timor-Leste”.
Prosecutor Richard Maidment rejected the idea that Witness K should not be considered a candidate for punishment acting as a deterrent to others.
“This was not committed out of a momentary lapse,” Mr Maidment said.
“This was a considered, continuing course of conduct. He had the opportunity to reconsider [his actions] for whatever reason out of grievance or altruism for the subject matter.”
Mr Maidment said while Witness K’s health condition should be considered in the outcome of the trial, it should not be used to explain his actions at the time.
The defence has argued Witness K has faced years of alienation, anxiety and post-traumatic stress since his home was raided by authorities in December 2013.
Mr Richter said a sentence of imprisonment would not be an appropriate sentence for his client, defending Witness K as a highly decorated ASIS officer.
Witness K and Mr Collaery were charged in 2018 with conspiring to reveal secret information through section 39 of the Intelligence Services Act, which covers secrecy and the unauthorised communication of information.