the queen v. julian paul assange

TRANSCRIPT OF PROCEEDINGS

COUNTY COURT

CRIMINAL JURISDICTION

MELBOURNE

THURSDAY 5 DECEMBER 1996

BEFORE HIS HONOUR JUDGE

MEDIA ROSS

COPY

THE QUEEN v. JULIAN PAUL ASSANGE

MS L. TAYLOR appeared on behalf of the Crown.

MR P. GALBALLY appeared on behalf of the Accused.

VICTORIAN GOVERNMENT REPORTING SERVICE167 Queen Street, Melbourne - Telephone 9603 2403

1 HIS HONOUR: This accused has been arraigned on previous 2

occasions, has he not?

3 MS TAYLOR: He has but this matter has a very protracted

4 history and there will need to be a re-arraignment on 5 some

counts this morning.

6 HIS HONOUR: Yes.

7 MS TAYLOR: What I propose to do is to explain that history to

8 Your Honour.

9 HIS HONOUR: Thank you.

10 MS TAYLOR: The indictment in its present form was filed on 11

2 June 1995. On 29 August 1995, the prisoner was

12 arraigned and pleaded guilty to one count of insert data 13 into

a Commonwealth computer contrary to Paragraph 76C(a) 14 of the

Crimes Act.

15 HIS HONOUR: One count of? COPY

16 MS TAYLOR: Insert data into a commonwealth computer contrary

17 to Paragraph 76C(a), MEDIA which was Count 14. 18 HIS HONOUR: Yes.

19 MS TAYLOR: One count of obtain access to data relating to the

20 enforcement of the law of the Commonwealth, using the

21 facilities of a carrier contrary to Sub-Paragraph

22 76D(2)(b)(3) of the Crimes Act, which was Count 20;

23 three counts of insert data into a computer using the

24 facilities of a carrier contrary to Sub-Section 76E(a) of

25 the Crimes Act, which was Counts 4, 5 and 8; one count of

26 erase data from a computer using the facilities of a

27 carrier contrary to Sub-Section 76E(a) of the Crimes Act,

28 which was Count 9; one count of interrupt the use of a

29 computer using the facilities of a carrier contrary to

30 Sub-Section 76E(b), which was Count 11 and one count of

31 defraud a carrier contrary to Sub-section 85Z(f)(a) of

.HS:BS 5/12/96 T13650A 1 DISCUSSIONAssange

1 the Crimes Act, which was Count 29. The prisoner pleaded

2 not guilty to the remaining counts.

3 On 9 May 1996, the prisoner was re-arraigned and

4 pleaded guilty to one count of insert data into a

5 Commonwealth computer contrary to Paragraph 76C(a) of the

6 Crimes Act, Count 14; one count of obtain access to data

7 relating to the law of enforcement of the Commonwealth,

8 Count 20; seven counts of insert data into a computer

9 using the facilities of a carrier, which were

10 counts 4, 5, 6, 8, 10, 15 and 17; three counts of erase

11 data which were Counts 9, 23 and 24; four counts of alter

12 data on a computer which were Counts 25, 26, 27 and 28;

13 one count of interrupt the use of a computer, Count 11,

14 and one count of defraud, Count 29. The applicant

15 pleaded to the remaining counts.

16 On 9 May, an acquittal was entered by direction on

COPY17 counts 2, 3, 18 and 19. His Honour the Chief Judge of

18 the County Court on that date determined in relation to

19 the remaining counts, that questions of law arose suchMEDIA

20 that their determination could render the conduct of a

21 trial unnecessary, and these questions were reserved for

22 the consideration and determination of the full court.

23 The trial and plea were adjourned to a date to be fixed.

24 On 2 October of this year, the full court made no

25 order on the questions reserved on the case stated, and

26 remitted the matter back to this court. Subsequently,

27 the - - -

28 HIS HONOUR: Did they give reasons for that?

29 MS TAYLOR: They said that the matter was not properly the

30 subject of a case stated.

31 HIS HONOUR: Yes.


1 MS TAYLOR: The prisoner still, at this stage, has a plea of 2

not guilty entered into Counts 1, 7, 12, 13, 21 and 22.

3 HIS HONOUR: Just repeat that.

4 MS TAYLOR: 1, 7, 12, 13, 21 and 22, and he will now need to be

5 re-arraigned on those counts.

6 HIS HONOUR: Yes.

7 MS TAYLOR: Your Honour, for your assistance, I certainly - - -

8 HIS HONOUR: The pleas that have been made are to stand.

9 MS TAYLOR: That's correct.

10 HIS HONOUR: Those six counts to which you made reference, that

11 will clear the presentment, will it?

12 MS TAYLOR: That is right, and there are a number of counts on

13 which a directed acquittal has already been entered.

14 HIS HONOUR: Yes.

15 MS TAYLOR: Your Honour, I have prepared a summary of the

16 indictment if that is of assistance to you.

17 HIS HONOUR: Yes. COPY

18 MS TAYLOR: I hand that up, and it is on the counts that are

19 currently entered as not guilty pleas that theMEDIA

20 arraignment will need to take place this morning.

21 HIS HONOUR: The accused will be re-arraigned on Count 1, Count

22 7, Count 12, Count 13, Count 21 and Count 22.

23

24 CHARGE: Offences contrary to s.76 and s.85 of the Commonwealth

25 Crimes Act (6 counts).

26 THE ACCUSED pleaded guilty.

27

28 HIS HONOUR: I have read the summary that has been provided,

29 that is, the agreed summary of facts. I note that there

30 were other men said to have been involved. Have they

31 been dealt with?


1 MS TAYLOR: They have, Your Honour.

2 HIS HONOUR: Is there any reason why the same judge is not

3 dealing with those?

4 MS TAYLOR: In terms of the list, we were just put in this

5 court.

6 HIS HONOUR: There are many statements of principle in the

7 cases that suggest that offenders who have been dealt

8 with by a judge who are involved in similar activities

9 ought to be dealt with by the same judge.

10 MS TAYLOR: Yes, Your Honour. Those two offenders were

11 actually dealt with by different judges. The offender,

12 B, was sentenced - - -

13 HIS HONOUR: We are only compounding the problem. This seems

14 to be a network, does it not, and they were charged with

15 pretty much the same offences; is that so?

16 MS TAYLOR: It is so, but it is also not so. There are some

COPY17 differences between the matters alleged against - - -

18 HIS HONOUR: All the more reason why the same judge should deal

19 with it and sort out the different criminality.MEDIA

20 MS TAYLOR: Your Honour, if it is of assistance, I do have

21 copies of the indictment and the sentencing remarks in

22 respect of both of those co-accused.

23 HIS HONOUR: What were the penalties imposed?

24 MS TAYLOR: In respect of B, who was sentenced on

25 21 July 1995 by His Honour Judge Lewis, the charges

26 alleged against him were one count of obtain access to 27

commercial information on the Commonwealth - - -

28 HIS HONOUR: I see the 76D offences carry a maximum penalty of 29

10 years; is that so?

30 MS TAYLOR: No, that is not so, Your Honour. They are two 31

years, two years maximum.


1 HIS HONOUR: It must be E then.

2 MS TAYLOR: It is E that carries the maximum.

3 HIS HONOUR: 76E is 10 years.

4 MS TAYLOR: That's correct.

5 HIS HONOUR: Section 10 applies, does it not?

6 MS TAYLOR: Yes, Your Honour.

7 HIS HONOUR: E is 10 years, D two and the - - -

8 MS TAYLOR: The defraud charge 85Z(f) carries a maximum penalty

9 of five years, Your Honour.

10 HIS HONOUR: Yes. Do you have a summary of the offences that

11 the other accused faced?

12 MS TAYLOR: Not to hand up to Your Honour. I can

13 certainly - - -

14 HIS HONOUR: Would you read that into the transcript if you can

15 do that?

16 MS TAYLOR: Yes. Your Honour, B pleaded guilty to one count of

COPY17 obtain access to commercial information on a Commonwealth

18 computer contrary to s.76B(2)(b)(8) of the Crimes Act,

19 one count of alter data in a Commonwealth computerMEDIA

20 contrary to s.76C(a), one count of erase data in a

21 Commonwealth computer contrary to s.76C(a), two counts of

22 insert data into a Commonwealth computer contrary to

23 s.76C(a), two counts of obtaining access to data relating

24 to the enforcement of law of the Commonwealth using the

25 facilities of a carrier contrary to s.76(d)(2)(b)(3),

26 four counts of erase data from a computer system using

27 the facilities of a carrier contrary to s.76E(a), seven

28 counts of insert data into a computer system using the

29 facilities of a carrier contrary to s.76E(a), four counts

30 of being knowingly concerned in Julian Paul Assange

31 obtaining access to data contrary to s.5, 76B(2)(b)(3),


1 76B(2)(b)(8) and 76D(2)(b)(8).

2 His Honour convicted B and, without passing

3 sentence, released him by cognisance in the sum of $500

4 to be of good behaviour for a period of three years in

5 respect of all 26 counts pursuant to s.21B of the Crimes

6 Act.

7 HIS HONOUR: Did the director take any steps in relation to

8 that sentence?

9 MS TAYLOR: No, Your Honour.

10 HIS HONOUR: He was happy with it?

11 MS TAYLOR: Yes, Your Honour. It certainly was not grounds to

12 say that the sentence was manifestly inadequate.

13 HIS HONOUR: Yes.

14 MS TAYLOR: B was also ordered to pay reparation in the sum of

15 $2100 in respect of damage COPY caused to the computer systems

16 at the Australian National University.

18 by His Honour Judge Kimm in respect of one count of

19 defraud of the Commonwealth contrary to s.29D, two countsMEDIA

20 of obtain access to data by means of a Commonwealth

21 facility contrary to s.76B(2(b)(5) and one count of

22 obtain access to data relating to the personal affairs of

23 any person using the facilities of a carrier contrary to

24 s.76D(2)(b)(5).

25 His Honour discharged C without conviction upon

26 recognisance in the sum of $500 to be of good behaviour

27 for a period of three years pursuant to s.19B of the

28 Crimes Act. In not convicting C, His Honour explicitly

29 recognised that he was the junior of the three offenders.

30 HIS HONOUR: Where does the Crown say this accused prisoner

31 sits amongst them?


1 MS TAYLOR: The Crown submits that this accused was the most 2

serious of the - - -

3 HIS HONOUR: The ringleader?

4 MS TAYLOR: The ringleader, Your Honour, yes. I am corrected

5 by my learned friend and that is probably appropriate.

6 He was the most active hacker and, perhaps, he was the

7 most skilful hacker, as well, rather than the ringleader.

8 While the three certainly communicated with each other,

9 they also pursued their own hacking activities.

10 HIS HONOUR: Why does the Commonwealth propose penalties of up

11 to 10 years for this sort of offence? It seems to me

12 that this was a very determined and sustained onslaught

13 on the computers at the Royal Melbourne Institute of

14 Technology, and the Australian National University. What

15 did

16 Judge Lewis say about that?

COPY17 MS TAYLOR: Your Honour, all three hackers involved in this

18 matter are what is described by computer literate people

19 as "look/see" hackers rather than malicious hackers.MEDIA

20 That is that notwithstanding that great amounts of damage

21 and inconvenience were caused to the systems,

22 administrators and the target systems, the information

23 retrieved was not used for personal gain or to sell or

24 for any other benefit. The motive behind the hacking was

25 simply an arrogance and a desire to show off computer

26 skill, and those factors were certainly taken into

27 account by Their Honours in sentencing the other two co-

28 accused.

29 HIS HONOUR: Do the same considerations apply here in your

30 view?

31 MS TAYLOR: Certainly, I would concede that the prisoner is a


1 look/see hacker, but I had intended to make some

2 submissions to you at the appropriate time as to penalty.

3 HIS HONOUR: Yes. We will hear what Mr Galbally has to say.

4 MS TAYLOR: Your Honour, there is one final matter, if I can

5 just raise that.

6 HIS HONOUR: Yes.

7

8 MS TAYLOR: When I hand up the transcripts of the other

9 co-accused, you will notice in those transcripts that

10 there is a reference to a summary offence in respect of 11 both

of those defendants, and that summary offence was a 12 charge of

inciting the commission of offences against the 13 law of the

Commonwealth, particularly Part 6A of the

14 Crimes Act, by publishing in writing in a magazine called

16 HIS HONOUR: What was that? COPY

17 MS TAYLOR: "International MEDIA Subversive". 18 HIS HONOUR: "Subversive"?

19 MS TAYLOR: Yes. The prisoner was also charged with that

20 offence and the charge was adjourned sine die at the

21 committal because it is, in fact, a summary offence.

22 HIS HONOUR: Yes.

23 MS TAYLOR: "International Subversive" was a magazine compiled

24 by the prisoner and contributed to by B and C, and the

25 magazine provided information on how to hack and how to

26 phreak?

27 HIS HONOUR: How to?

28 MS TAYLOR: Phreak.

29 HIS HONOUR: P-h-r-e-a-k.

30 MS TAYLOR: That's correct. Phreaking is when you - - -

31 HIS HONOUR: Yes, I follow that.


1 MS TAYLOR: The magazine had a stated distribution of three

2 persons only, being B, C and the prisoner.

3 The summary offence charged against both B and C

4 was dealt with by this court exercising summary

5 jurisdiction pursuant to s.359AA of the Victorian Crimes

6 Act. Since that time, my office has received advice that

7 sub-s.68(3) of the Judiciary Act prevents the exercise by

8 a Victorian superior court of summary jurisdiction with

9 respect to a federal offence.

10 Consequently, so that the matters may be finally

11 determined, the prisoner has consented to that matter

12 being taken into account on sentence pursuant to s.16BA

13 of the Crimes Act and - - -

14 HIS HONOUR: What is the difference?

15 MS TAYLOR: The difference - - -

16 HIS HONOUR: Being taken into account as distinct from dealt

COPY17 with as a summary offence.

18 MS TAYLOR: In practicalities, not very much, I would submit,

19 Your Honour, but in terms of the legality - - -MEDIA

20 HIS HONOUR: When I am to take it into account, that follows,

21 from what you have told me, that I am not able to punish

22 him for it but just to - - -

23 MS TAYLOR: That is correct.

24 HIS HONOUR: - - - do nothing about it.

25 MS TAYLOR: The section certainly says that the maximum penalty

26 for the offences of which he will be convicted will still

27 be the maximum penalty that the court could have imposed

28 if no other offence had been taken into account.

29 Section 16BA does allow a reparation order to be

30 made in relation to any offence that is taken into

31 account.


1 HIS HONOUR: Are you asking for any reparation order?

2 MS TAYLOR: I am not. The main reason that this is put in is

3 so that the matters can be finally determined.

4 HIS HONOUR: Clear it up?

5 MS TAYLOR: Yes, Your Honour, but I hand up that - - -

6 HIS HONOUR: I am to take the summary. What section under

7 which he is charged with the summary offence?

8 MS TAYLOR: Section 7AB.

9 HIS HONOUR: 7A?

10 MS TAYLOR: Sub-section B of the Crimes Act. It is the 11

incitement provision, Your Honour.

12 HIS HONOUR: I am to take it into account, but I have no power 13

to punish for it?

14 MS TAYLOR: Yes, Your Honour. I hand up the requisite form.

15 HIS HONOUR: That is sort of intellectual COPY gymnastics, isn't it?

16 MS TAYLOR: It is, Your Honour.

17 HIS HONOUR: Yes. MEDIA 18 MS TAYLOR: I hand up the form that it is necessary under that

20 HIS HONOUR: Thank you. Yes, Mr Galbally.

21 MR GALBALLY: Do you want me to address the issue of whether or

22 not you should be the sentencing judge?

23 HIS HONOUR: No, no, I will deal with it. It seems there has

24 been a pot-pourri. Two judges have had a crack at it,

25 why not a third one? He might do it properly.

26 MR GALBALLY: Your Honour, I will be making certain submissions

27 in regard to that, in regard to the way that my client is

28 placed within the context of the other offenders, but,

29 essentially, what has been said is that all the other

30 offenders - they have all acted independently, Your

31 Honour. It appears that what has occurred is that


1 throughout their activities they have come into contact

2 with each other, and it is an elite or a particular group

3 of people who have been involved in this type of activity

4 and through the telephone intercepts that you would have

5 perused, Your Honour, you would have seen that.

6 HIS HONOUR: I have not read the - all these papers came up

7 last night, 17 volumes. I have not read them.

8 MR GALBALLY: You would not have had an opportunity, but if I

9 may just precis what is contained in them.

10 HIS HONOUR: Yes.

11 MR GALBALLY: It is really there was an intercept that was

12 originally placed on B's telephone, where he is having

13 conversations with C, the other offender, and with Mr

14 Assange, the prisoner before you. Essentially, what

15 those communications demonstrate in my submission is that

16 there is neither one person who is the ringleader within

COPY17 this exercise; it is merely that - - -

18 HIS HONOUR: I follow that. Your opponent immediately accepted

19 your demurrer when I used that expression, and I followMEDIA

20 that, but didn't I read somewhere that, if I may say so,

21 your client seemed to be one jump ahead of everybody and

22 then, when they became aware that the telephone

23 intercepts were on, your client - that is the attribution

24 in the material - your client alerted the others and came

25 up with some sort of a solution to, as it were, keep one

26 jump ahead? Is that not correct?

27 MR GALBALLY: I think that throughout the material, you can see

28 that if one person gains information, they seem to spread

29 it about between themselves. My client may have become

30 aware that the jig was up, if I could use that

31 expression, or that there were people who were hot on


1 their trail through the intercepts - - -

2 HIS HONOUR: The difficulty there is, you see, at that stage,

3 you have got people who are hacking into these computers,

4 and I am bound to accept not for any personal gain just

5 for, if you like, the thrill of it, but when sensitive

6 individuals are confronted with the potential for

7 detection, on one view, they say, all right, well, the

8 jig's up, we'd better stop this. But what happens is the

9 enterprise goes on - that is as I understand it and you

10 can disabuse me of this - the enterprise goes on and they

11 try and find a way of keeping one jump ahead of the

12 authorities. That is the troublesome part of this. Am I

13 wrong about that?

14 MR GALBALLY: Not entirely, Your Honour. If I may address it

15 in this manner?

COPY16 HIS HONOUR: Yes.

17 MR GALBALLY: Throughout the course of the plea, I will be

18 addressing you on that very point. That is part and

19 parcel of what appears to be the hacker's activity in theMEDIA

20 sense that there becomes this cat and mouse play between

21 the person trying to investigate and the hacker himself.

22 HIS HONOUR: How much does that cost the community, all that

23 investigation and then the concern? I see one of the

24 things they had access to are the examination results or

25 potential examination results et cetera.

26 I think this is very troublesome behaviour, and I

27 must register some surprise at the disposition of Judge

28 Lewis. I am not, for one moment, criticising him; all I

29 am doing is registering surprise, and that is a very

30 powerful argument that you have on this plea.

31 MR GALBALLY: I will be adopting that argument in due course,


1 Your Honour, but I think I wish to place a little bit of 2 this

in context which, I hope, will assist you in

3 understanding the sentences that have been passed down in 4 the

past. For example, sir, Julian Assange was 20 years 5 of age when

this activity occurred.

6 HIS HONOUR: Yes.

7 MR GALBALLY: That is in 1991. He now comes before the court

8 as a 25 year old, sir, and there will be submissions made

9 on his rehabilitation and that he is now an entirely

10 different person in terms of social maturity and his

11 understanding of the offences that he has committed and,

12 in fact, what he has done for the community as part of

13 his rehabilitation, but, more than that, sir, if I can

14 just draw you to one part of the deposition material

15 which I think, in my submission, is significant, Mr

16 Assange - - -

COPY17 HIS HONOUR: Which part are we going to?

18 MR GALBALLY: I am going to take you to the record of interview

19 and I draw your attention to one page specifically, sir.MEDIA

20 HIS HONOUR: Which page?

21 MR GALBALLY: That is page - I hope it is - 353 of the record

22 of interview. It is almost at the end of it. It is the

23 second last page of his record of interview, sir.

24 He was interviewed on two occasions, once in

25 December 1991 and then, again, in February 1992.

26 HIS HONOUR: Interviewed twice when?

27 MR GALBALLY: He was interviewed in December 1991 and he was

28 interviewed again in February 1992.

29 HIS HONOUR: Yes.

30 MR GALBALLY: I want to pause there, Your Honour, and say this,

31 that in the first interview that he gave in December, you


1 will see that he has given an extremely candid account of

2 his activities. Every question that he is asked, he

3 gives an answer to. He explains exactly what he did to

4 the best of his ability and to the systems that he got

5 into. He is candid about his ability and is candid about

6 what purpose he was endeavouring to achieve, and I will

7 address that at a later stage during the course of the

8 plea, Your Honour, but in particular, at p.353, at p.37

9 of - - -

10 HIS HONOUR: Yes, I have got that.

11 MR GALBALLY: He says, "Well, I was led to believe that the

12 sooner the interview was done, the more evidence there

13 would be against me and, therefore, the less physical

14 evidence would be needed".

15 One can take from that, Your Honour, that Mr

16 Assange has gone back there on a second occasion,

COPY17 assisted the police with their enquiries with the18 endeavour to have this matter dealt with as soon as

19 possible.MEDIA

20 HIS HONOUR: Yes.

21 MR GALBALLY: Assisted them with all of their enquiries to the

22 best of his ability. There is no duck-shoving at all

23 with the questions, giving one candid answer and then

24 hiding behind, well, look, I'm not sure, I don't know.

25 It is a very candid interview.

26 He is not charged until 1994 in respect of this

27 offence.

28 HIS HONOUR: I can understand some difficulty formulating

29 charges in a case like this.

30 MR GALBALLY: Yes, of course, Your Honour. It is undoubtedly a

31 complex matter, and I must say that I have had


1 difficulties myself with dealing with the material.

2 However, my client has done everything in his power, at

3 that early stage, to expedite the proceedings.

4 He has not relied on his rights, which could not be

5 used against him in any event, but, by that statement, he

6 is, in a sense, saying, I've come down here with the

7 endeavour to answer all of your questions to assist you

8 and to have this matter cleared up as early as possible.

9 Then, for some three years - almost three years - he

10 awaits his charges.

11 Between that time, sir, and the time when these

12 offences occurred, he comes before you as an entirely

13 different person, sir. It is obvious that he is a highly

14 intelligent person when one looks through the material

15 and, in fact, all of the accused are intelligent people.

16 Yet, to use a colloquial expression, their intelligence

COPY17 outstretched their own maturity, and now his maturity as

18 a person has caught up with him and he has an insight

19 into his offending behaviour.MEDIA

20 That is a significant feature of this particular

21 matter. Although the charges may be complex, he has not

22 done anything to delay this proceeding. The case stated

23 went before the Full Court of the Supreme Court and,

24 under the Crimes Act, sir, that is nothing that can be

25 taken against - Mr Assange is still deemed to have

26 pleaded guilty at the earlier opportunity.

27 HIS HONOUR: Yes, in a case like this, the guilty plea has got

28 to be of great significance. The trial would have been a

29 nightmare, no doubt about that.

30 MR GALBALLY: He has saved the community enormous expense by

31 avoiding that trial and by pleading guilty today, and the


1 matters upon which that went before the full court were 2

technical questions of law.

3 HIS HONOUR: Yes, I follow that. I would not, for one minute, 4

suggest that made any inroads and I accept that that was 5 for the

purpose of clarification of the legal position.

6 MR GALBALLY: Yes, and the full court - I don't want to merely 7

reiterate what my friend has said, but the full court

8 effectively said, in refusing to hear the application,

9 that the Bench had - - -

10 HIS HONOUR: I wonder did the Bench have 17 volumes on it?

11 MR GALBALLY: They had a case stated that went before it and

12 agreed summary of facts.

13 HIS HONOUR: Yes.

14 MR GALBALLY: The court was essentially concerned that whether

15 or not those agreed statement COPY of facts would be the same

16 if Mr Assange was put under cross-examination, were they

17 finally determined MEDIA and settled in (indistinct), and

18 although the Crown urged the court to consider the

19 matter, they decided against it. But Mr Assange, then,

20 has pleaded guilty, accepted his fate, notwithstanding

21 that maybe there are some grey areas in respect of the

22 law, and that is to his credit that he doesn't wish this

23 matter to be delayed any further.

24 HIS HONOUR: Yes. I shall take those matters into account.

25 MR GALBALLY: During the course of the five years since the

26 commission of these offences, Mr Assange has matured into

27 a young adult who has taken on responsibilities of being

28 a sole parent. Sir, he has a young son who is aged 6,

29 almost 7, Daniel. Just prior to his arrest, his then

30 wife left the premises and had taken his young son with

31 her, who was then aged 20 months and, in late 1992, Your

.HS:BS 5/12/96 T13650A 16 DISCUSSION

Assange

1 Honour, Mr Assange has managed to receive sole custody of

2 his son.

3 HIS HONOUR: Was that by agreement or - - -

4 MR GALBALLY: No, that is by way of protracted Family Court

5 proceedings, sir.

6 HIS HONOUR: Yes.

7 MR GALBALLY: I am instructed by my client that those

8 proceedings are still continuing today, but it is obvious

9 that he has demonstrated a great deal of maturity and

10 responsibility in taking over the supervision and

11 livelihood - - -

12 HIS HONOUR: That is at Malmsbury Street, Hawthorn?

13 MR GALBALLY: That is correct, sir.

14 HIS HONOUR: What is that, a flat or a house or - - -

15 MR GALBALLY: No, that is a rented COPY house, sir.

16 HIS HONOUR: Yes. What is his employment?

17 MR GALBALLY: He is a receiver MEDIA of a sole parent pension, sir.

18 HIS HONOUR: He said he was a computer programmer by

20 MR GALBALLY: That is correct, sir, and I will be providing

21 some material to you. Since being charged in 1993, sir, 22 he has

set up a site(?) on the internet which enables

23 people - he has put programmes onto the internet site and 24 it

enables people to gain access to that material. In

25 that sense, he describes himself as a computer

26 programmer.

27 HIS HONOUR: Yes.

28 MR GALBALLY: He has managed to give back an awful lot to the

29 community in that respect and from the - at some stage, I

30 will tender to Your Honour that from his work on the site

31 and the material that he has put on the site, many users


1 throughout all over the world have used the material that 2 he

has provided to the internet.

3 HIS HONOUR: What is his particular programme?

4 MR GALBALLY: There are a variety of programmes. He has four

5 programmes that are on the site. There is one that is

6 described as, "Best of security", which has over 5000

7 subscribers to it. He produces bulletins in regard to

8 security and provides computer software in respect of

9 those things.

10 HIS HONOUR: Does he get paid for that?

11 MR GALBALLY: No, sir, he doesn't receive - well, from time to

12 time, he receives some small remittance in regard to the

13 work that he has produced on to it, but, essentially, all

14 of the material that you will see that is contained in

15 this folder, nobody pays for that user service. Mr

16 Assange is hopeful that at some stage in later life that,

COPY17 in addition to providing material onto the internet, that

18 at some stage he will end up receiving some sort of paid

19 remuneration for it, but he is clearly a person who wantsMEDIA

20 the internet to be able to provide material to people

21 that isn't paid for, and he freely gives his services to

22 that.

23 HIS HONOUR: Yes.

24 MR GALBALLY: Sir, if you just bear with me, I have a letter

25 here from the Alternative Technology Association

26 Incorporated wherein it - I am instructed that they are

27 aware of this matter that is before the court although

28 there is no specific mention of it, sir, but it

29 essentially describes the type of services that

30 MrÿAssange has provided to them. My friend has had an

31 opportunity of perusing that letter.


1 #EXHIBIT ¯1 - ¯Letter from Alternative Technology Association.

2 HIS HONOUR: Do you want me to read that now?

3 MR GALBALLY: It is not necessary to read it at this stage,

4 sir. The structure of the plea will be as follows, sir,

5 is that I wish to give some detailed background in regard

6 to MrÿAssange's formative years as a child.

7 Essentially, the thrust of the plea will be that

8 his mother will - - -

9 HIS HONOUR: Your strongest point is the attitude taken by the

10 other judges.

11 MR GALBALLY: That is correct, sir.

12 HIS HONOUR: Is there any reason in this case why the

13 principles of parity should not apply?

14 MR GALBALLY: In my submission, they should apply, sir, that he

15 comes before the court in COPY much the same manner, if not

16 identical, to what the other people came before the

18 HIS HONOUR: Have you considered MEDIA that, Ms Taylor?

19 MS TAYLOR: Your Honour, I have considered that, and while Your

20 Honour would be bound by the principle of parity, it will

21 be my submission that the prisoner before you is the most

22 serious of the three offenders.

23 HIS HONOUR: But in terms of being the most serious, I take it

24 they were all first offenders?

25 MS TAYLOR: Yes.

26 HIS HONOUR: There has got to be, a, a belief on my part that

27 the punishment imposed was manifestly inadequate and two

28 judges of this court have decided that two participants

29 in this scheme, one obviously to a lesser extent than the

30 other - but when two judges of this court have decided

31 that non custodial dispositions are appropriate,


1 particularly in the case of a first offender, if the

2 director was enthusiastic about an alternate disposition,

3 I would have to be persuaded that there were very

4 significant differences, would I not?

5 MS TAYLOR: You would, Your Honour. My submission will be that

6 deterrence is the most weighty factor that Your Honour

7 will have to give.

8 HIS HONOUR: I follow that, but I cannot ignore the fact that

9 two judges of this court who are well appraised of the

10 need to incorporate that principle in appropriate cases

11 have taken the view that they have.

12 MS TAYLOR: Yes, Your Honour, my submission will be that the

13 principle of parity will not be offended by the

14 imposition of a custodial sentence but a suspended

15 custodial sentence.

16 HIS HONOUR: But that involves me stipulating that it requires

17 a gaol sentence. COPY

18 MS TAYLOR: Yes.

19 HIS HONOUR: I mean, the fact that the sentence isn't served isMEDIA

20 preceded by a declaration that the offence is punishable

21 by a gaol sentence; now, if in fact just at first glance

22 - if all of the offenders are hacking into the computer

23 and, I suppose, whilst you identify quite a number of

24 counts, it probably does not approach the usage that

25 these men had of their computers and the access that they

26 had to the various computers that they broke into if

27 that's the right terminology.

28 MS TAYLOR: Yes, Your Honour, that's correct.

29 HIS HONOUR: And if, in fact, the three of them are not doing

30 that for personal gain - was it your expression,

31 arrogance or was it Mr Galbally?


1 MS TAYLOR: I think it was mine, Your Honour.

2 HIS HONOUR: Yes; if that is the motivator then my

3 understanding of the principle which is one I believe, at

4 times I am quite soured by some penalties that are

5 imposed but it is so deeply entrenched in our law, so

6 deeply entrenched and my feeling is that having read the

7 papers and just heard you and heard Mr Galbally, that

8 really the discrimination between the - certainly B and

9 this accused is inclined to be marginal.

10 MS TAYLOR: In my submission, Your Honour, that is not so. The

11 computer skills of the prisoner were far in excess of

12 those of B.

13 HIS HONOUR: All right; then you maintain it. I will hear you

14 on that later on. I just thought I might be able to

15 shorten these proceedings.

16 MS TAYLOR: Your Honour, I will say this, the Crown does

COPY17 acknowledge that it comes before this court with two

18 other co-accused and will be bound by parity.

19 HIS HONOUR: I don't want you to be deterred but also if inMEDIA

20 fact you're tinkering at the edges as it were and trying

21 to create a significant difference when none exists

22 because I would have thought that if Judge Lewis in

23 particular was impressed by the fact that the access to

24 the computer was not for personal gain, it was for the -

25 dare I say it - the thrill, the arrogance; if Judge Lewis

26 was impressed by that and I want to read his sentencing

27 remarks before I finally sentence this accused - but I

28 just get a ,whiff if I may say so, that you will be

29 struggling to come up in the case of first offenders with

30 ingredients in this case which so significantly

31 distinguish it to enable me to say that one of the Judges


1 of this court really has imposed a manifestly inadequate

2 sentence particularly if the Director did not complain

3 about it.

4 MS TAYLOR: Yes, Your Honour; one of the problems with this

5 part of the law is that these offences, of course, are

6 quite new offences.

7 HIS HONOUR: Yes.

8 MS TAYLOR: There is only one other set of hackers that have

9 come before this court and that too were three co-accused

10 and in respect of those three co-accused, suspended

11 custodial sentences were imposed and they were look/see

12 hackers as well.

13 HIS HONOUR: Yes, but I think when you've got what seems to be

14 members of a network, to look at another similar set of

15 facts, really may not be helpful and I quite often say

16 that when counsel proffer cases at me and say, "Well,

COPY17 now, in such and such a case so and so was the penalty

18 therefore you ought to be guided." I draw back from that

19 because each case, each case has its own particular factsMEDIA

20 and own particular offenders as it were but that

21 particular principle is at all times subservient to the

22 principle of parity.

23 MS TAYLOR: Yes, Your Honour; the difference if I may just

24 summarise, in my submission, between the prisoner and the

25 other two hackers - - -

26 HIS HONOUR: Do you mind this occurring, Mr Galbally, or would

27 you prefer to - - -

28 MR GALBALLY: No, not at all, Your Honour; she may proceed.

29 MS TAYLOR: Thank you; the counts that relate to Northern

30 Telecom which are counts seven to 11 on the indictment 31

related to the hacking of - - -


1 HIS HONOUR: Was B charged with those?

2 MS TAYLOR: No, not at all. The prisoner is the only one who

3 is charged with those offences and they were quite

4 superior computer skills to get into the systems. Nortel

5 was a Canadian telecommunications - - -

6 HIS HONOUR: Let me have a look at the summary in relation to

7 that, counts 7 to 11; call one, between 1 July `91 and

8 29 October `91?

9 MS TAYLOR: Yes, Your Honour. The number of computers affected

10 by that piece of hacking was substantial. The computer

11 network belonging to Northern Telecom had about 11,000

12 computers attached to it and the prisoner obtained over

13 1,000 password files - - -

14 HIS HONOUR: This is by this technique he used of throwing

15 millions of numbers around until he hit on one?

16 MS TAYLOR: That's correct, Your Honour, he actually wrote a

COPY17 programme to do that and on a number of those computers

18 he had - in over 100 of the computers, he had root access

19 to those computers which meant that he didn't need anyMEDIA

20 further password, he had the key to the door if you like,

21 he could have gone anywhere that he liked and he was in

22 those systems for quite some months before the Systems

23 Administrators detected his presence.

24 HIS HONOUR: Can you answer this question; how when the

25 computer system is working and people that are lawfully

26 accessing it are doing so what's the stimulus to - or

27 what is the indication one gets that there is some

28 unauthorised entrant into the computer? Can you answer

29 that question?

30 MS TAYLOR: My understanding of that is that there is a person

31 called the System Administrator who has responsibility


1 for looking after the system. The hacking done by the

2 prisoner didn't disrupt the computer to the extent that

3 people couldn't use it.

4 HIS HONOUR: Yes, I understand that but - and that's my

5 question; if it's rolling along merrily and everyone is

6 using and getting the information that they want, how

7 does anyone know - - -

8 MS TAYLOR: There are auditing procedures which I don't know

9 the technicalities of, Your Honour, that can discover

10 these intrusions.

11 HIS HONOUR: Yes. Well, the information is going to an

12 authorised telephone number or something of that sort?

13 MS TAYLOR: I don't know the specifics but - - -

14 HIS HONOUR: Or an unauthorised computer.

15 MS TAYLOR: Yes, it would be something along those lines, Your

16 Honour, and when the Systems Administrator - - -

COPY17 HIS HONOUR: Perhaps we should ask the accused?

18 MS TAYLOR: Perhaps we should, Your Honour. When the Systems

19 Administrator found the presence of an intruder on theMEDIA

20 core Wang system, the prisoner was able to monitor the

21 affect of them trying to catch him and count 11 relates

22 to this; when one of them got very close to catching him

23 the prisoner was able to cause the computer system to

24 exclude that System Administrator from the core Wang and

25 he therefore interrupted that lawful use of the computer.

26 Your Honour, that in summary is - - -

27 HIS HONOUR: That you say is the difference?

28 MS TAYLOR: Is the difference; the extent and the time and the

29 skill required in relation to those counts differentiate

30 the prisoner from the offender, B.

31 HIS HONOUR: And that's the only discrimination?


1 MS TAYLOR: The rest of the counts are very similar, Your

2 Honour.

3 HIS HONOUR: I don't think that's enough. I mean, you've

4 brought it to my attention but I don't think that's

5 enough. It seems just a variation. I suppose our

6 Canadian friends would be concerned about that occurring

7 but generally I suspect Judge Lewis was impressed by A,

8 the background of the prisoner, the acceptance of the

9 fact that this entry into the computers was from the

10 criminality point of view, absolutely mischievous and

11 probably, probably done by someone without the awareness

12 that they were facing 10 years less 33 per cent for the

13 discount under s.10.

14 Could you read me the sentencing remarks made by

15 Judge Lewis, the significant sentencing remarks that

16 Judge Lewis made. I want to read them but I would like

COPY17 you to read them into the transcript, please, Ms Taylor.

18 MS TAYLOR: His Honour said, "Upon the material produced to me

19 on this plea and upon the depositional material which isMEDIA

20 contained in the number of volumes presented to the court

21 and upon reading the summaries and listening to counsel

22 for the prosecution and for the accused, it is my view

23 that a conviction should be recorded but I think it is

24 appropriate in this case for the reasons indicated during

25 the course of argument that B be released upon his

26 undertaking that he will be of good behaviour for a

27 period of three years and that he will make reparation in

28 that he will pay to the Australian National University

29 the sum of $2,100."

30 Your Honour, the transcript of the argument

31 wasn't transcribed. There are more sentencing remarks in


1 respect of C from His Honour Judge Kimm.

2 HIS HONOUR: C is in - you say he's at the bottom of the tree.

3 MS TAYLOR: He is very much at the bottom and His Honour

4 explicitly recognised that. Would that be off assistance

5 if I read those, Your Honour?

6 HIS HONOUR: I would be grateful if you could pass them on to

7 me. I will read them in due course. I want to think

8 about this.

9 MS TAYLOR: Your Honour, I may have mislead you before; you

10 referred to s.10. I should make it clear that with the

11 Federal offences s.10 of the Sentencing Act does not

12 apply.

13 HIS HONOUR: Yes, it doesn't apply but I have still got to

14 heed, is it s.19 that says where a remission on sentence

15 are not available in a State court that the practice of

16 acknowledging the abolition of those remissions has got

17 to be followed. COPY

18 MS TAYLOR: Yes, Your Honour, I just wanted to clear that up in

19 case I had, in fact, misled you.MEDIA

20 HIS HONOUR: Thank you; I'm sorry, it's not strictly s.10 but I

21 have got to give a s.10 discount in the Commonwealth

22 terms.

23 MS TAYLOR: Yes, Your Honour.

24 HIS HONOUR: Mr Galbally, you have heard what I have said; I

25 think you should get the personal background material on

26 the file but the path has been made a little easier for

27 you. I do believe that there should be seen to be

28 consistency of punishment in this court so far as is

29 possible and that's a pretty elusive commodity but when

30 Judges are dealing with similar fact circumstances there

31 has to be very good reason for a departure and I do not


1 think the points that were raised by Ms Taylor in the

2 context of this case are such that would cause me to

3 depart from the disposition made by Judge Lewis.

4 MR GALBALLY: Your Honour, I'm grateful for that indication;

5 however if I may just say this - - -

6 HIS HONOUR: Sometimes the counsel, it's like Daniel going back

7 into the Lion's den to get his coat.

8 MR GALBALLY: I'm thankful for that indication too, Your

9 Honour, but if I can just make this remark. In addition

10 to

11 Mr Assange's background material that I want to put

12 before the court,

13 DELETED BY COURT ORDER 14 Jan 2011


15 DELETED BY COURT ORDER 14 Jan 2011 COPY


17 DELETED BY COURT ORDER MEDIA 14 Jan 2011 18 DELETED BY COURT ORDER 14 Jan 2011


20 HIS HONOUR: You cannot get a better result than what I have

21 proposed, can you?

22 MR GALBALLY: Your Honour, I can try for a non-conviction bond?

23 HIS HONOUR: No, you're wasting your time. I think offences of

24 this kind ought to be a mark on his record, the

25 disposition of the court I think is - I must say that if

26 I had first go at this, I would have been closer to

27 Ms Taylor's submission. I would have thought with the

28 extensive intervention that is disclosed and I've only

29 read the summary of the facts but I take it that's a

30 pretty good appraisal of what occurred, in my view, the

31 intrusion into these computers was quite extensive, it


1 carried with it the potential to cause particular harm, I

2 thought, and in particular to access such things as

3 potential examination questions and results at the RMIT

4 and I don't know - and we probably never will know what

5 the prisoner laid his eyes upon which reposes in these

6 computers but the Commonwealth accepts that it was not

7 used for malevolent purposes, the Commonwealth accepts

8 that there is just no evidence that there was anything

9 other than sort of intelligent inquisitiveness and the

10 pleasure of being able to - what's the expression - surf

11 through these various computers but I am bound to say

12 that I would have thought, before I heard the disposition

13 of Judge Lewis, that I might have had a different view

14 but I believe the principle of parity is so entrenched in

15 our law that I am bound to follow it and I will.

16 MR GALBALLY: Yes, Your Honour. Once again, I'm grateful for

17 the indication. COPY

18 HIS HONOUR: I think you should put the - just by way of

19 record - you should put the prisoner's backgroundMEDIA

20 material, family and the like, on the record so that

21 it - I am appraised of it and that it is there for -

22 well, I repeat for the record.

23 MR GALBALLY: If I may begin by saying this, Your Honour, his

24 mother, Christine Assange, she is currently in court

25 today and if required she is able to give evidence. A

26 little bit of Mr Assange's background really stems back

27 to his mother and it is relevant in this sense, sir, that

28 he has affectively, from a young child and throughout his

29 entire life, they have moved from town to town, from

30 State to State, and I will go through the reasons why

31 and, in effect, Mrs Assange is unable to give a coherent


1 chronology of all the cities and times and places that

2 she has resided in but she is able to testify that she is

3 of the view that Julian Assange, the prisoner before you,

4 has attended at least 12 different schools during his

5 lifetime.

6 I will endeavour to outline that to you now, sir.

7 HIS HONOUR: He obviously has mastered the world of computers.

8 Does he have any formal educational qualifications?

9 MR GALBALLY: He has no formal education qualities at all. In

10 reality, sir, what has happened is that as a young boy

11 travelling from State to State and school to school and

12 from country town to country town his mother purchased a

13 computer for him at the age of approximately 13 or 14.

14 That computer, in effect, became his only friend and his

15 only interaction with the outside world. He is a highly

16 intelligent young man and one can imagine the

COPY17 difficulties that any child has moving to one or two

18 schools during their lifetime. Most times, parents are

19 most concerned about how the child will adjust becauseMEDIA

20 children form cliches and they have their own social

21 groups but

22 Mr Assange literally went from school to another,

23 sometimes spending four months in one school, sometimes

24 spending six months at another school.

25 He was ostracised from time to time; when he would

26 reach a new community he would be ostracised, he would be

27 - I suppose the colloquial expression is to be picked on,

28 he would be bullied and his only real saviour in life or

29 his own bed rock in life was this computer. His mother,

30 in fact, encouraged him to use the computer and at some

31 stage she realised that it had become an addictive


1 instrument to him at a very early age.

2 HIS HONOUR: Were both parents together?

3 MR GALBALLY: No, sir; his background is quite tragic in many

4 ways. His mother is a very intelligent young lady who

5 ran away effectively from home when she was 17 years of

6 age and moved to Sydney. She came from an academic

7 background and fell pregnant in her early 20s and had

8 Julian. The biological father of Julian, Mr John

9 Shipton, he never took up resident or if he did only took

10 up residence for a very short time.

11 HIS HONOUR: Has he had contact with the prisoner?

12 MR GALBALLY: No, he has had no contact with the prisoner. The

13 prisoner was born in Queensland, in Townsville. Shortly

14 after that event Mrs Assange entered into a relationship

15 and married a Mr Brett Assange. That relationship

16 finished when Julian was approximately aged seven. He

COPY17 had, I'm instructed and told by his mother, that Julian

18 had a very close relationship with his step-father. His

19 step-father was an actor and a theatre director.MEDIA

20 He, unfortunately, was plagued with difficulties

21 with alcohol and it was on that basis that Mrs Assange

22 ended that relationship. Almost immediately after the

23 relationship ceased Mrs Assange entered into a new

24 relationship with a gentleman by the name of Kevin

25 Hamilton. Before moving onto there, sir, if I can

26 say - - -

27 HIS HONOUR: How old was Julian?

28 MR GALBALLY: Julian was approximately the age of seven at that

29 stage, round about seven, eight. Up until about the age

30 of six Julian had resided at Magnetic Island, had been in

31 Brisbane, Sydney and Adelaide, then subsequently when


1 Mrs Assange entered into this third relationship, which

2 soon soured, she had great difficulties in terminating

3 that relationship and she was forced to flee from state

4 to state. She travelled down to Melbourne at one stage,

5 the gentleman attempted to, Kevin Hamilton attempted to

6 contact her, he had been physically violent towards her

7 in the past. He had ransacked their previous premises,

8 she fled to Adelaide for a short period of time, for a

9 period of six months, and then she fled across to Perth

10 for a period of time and then when Julian was about 14 or

11 15 she came back to Melbourne where she resided in about

12 four different premises as she has been in refuges.

13 HIS HONOUR: How long did Hamilton pursue her?

14 MR GALBALLY: Hamilton pursued her for a number of years.

15 HIS HONOUR: Is that terminated now?

16 MR GALBALLY: It is successfully terminated now but Julian was

COPY17 forced to - not forced, I withdraw that, Your Honour, but

18 Julian had given evidence in Family Court proceedings in

19 regard to Hamilton because there was a custody battleMEDIA

20 between his mother and Mr Hamilton regarding their son,

21 Julian's step-son(sic) Jamie.

22 HIS HONOUR: How old is he?

23 MR GALBALLY: Jamie is now I think 15 years of age; he had

24 enormous difficulties and not placing any sins at all

25 upon Mrs Assange but he has really lived a transient

26 lifestyle, domestically moving from one city to another

27 city until the age of about 15 when he comes to Melbourne

28 and in that time, sir, he attended three different -

29 we're able to calculate that he had probably attended

30 three or four different schools during that time. He

31 eventually attempted to do his HSC by way of


1 correspondence and he was unsuccessful in completing

2 that.

3 At an early age, sir, at 17 he met his then wife,

4 Christine, and they moved into residence together. He

5 met Christine through a gifted child programme. He had

6 been assessed out at Melbourne University notwithstanding

7 the fact that he had probably never spent longer than a

8 year in one classroom on a consecutive basis, he was

9 assessed as being a gifted child himself and he met her

10 through that programme and they moved into residence

11 together and he attempted to do his HSC by way of

12 correspondence, he was unsuccessful in endeavouring to do

13 that and then at a later stage at the time when these

14 offences were committed, he was doing a course at a TAFE

15 college in computer science and physics and he has not

16 completed that.

COPY17 HIS HONOUR: Has he been in any employment?18 MR GALBALLY: No, sir, not from my instructions. He has had

19 no - - -MEDIA

20 HIS HONOUR: How old is he now, 29?

21 MR GALBALLY: Well, there's an explanation for that, Your

22 Honour; I beg your pardon. He has not been in any

23 permanent employment because at the time when these

24 offences occurred he had a young child Daniel, 20 months.

25 Since getting sole custody of the child he has spent all

26 of his time endeavouring to give the child the very thing

27 that he never had and that was stability and in a sense

28 his mother is able to give evidence that Mr Assange

29 notwithstanding the intelligence and the career paths or

30 academic paths that he could probably choose through

31 university, he has put his studies on hold and he has


1 really solely concentrated on young Daniel.

2 HIS HONOUR: What sort of a computer has he got at home?

3 MR GALBALLY: I know what computer he had - I think he now just

4 has - if you'd just excuse me one moment?

5 HIS HONOUR: Yes.

6 MR GALBALLY: I'm advised, Your Honour, that it's only just a

7 simple basic computer. The computers that were used in

8 the commission of these offences were really just old

9 fashioned small computers and one of the motives for

10 these offences was that by leading onto these major

11 computer sites, it gave you the power and enabled you to

12 move from one site to another.

13 HIS HONOUR: I think I've heard enough about the background. I

14 find myself in a position, mainly because of the previous

15 dispositions, I'm in a position to sentence your client

16 now.

COPY17 MR GALBALLY: Do you wish me to tender these reports about his

18 son, Your Honour.

19 HIS HONOUR: I have no reason not to accept what you've saidMEDIA

20 about that.

21 MR GALBALLY: If it please Your Honour.

22 MS TAYLOR: Your Honour, just one matter; I will hand up to you

23 now the transcript of the co-accused and there is a

24 matter of a reparation order. The reparation order that

25 was made against B was for $2,100 in respect of damage

26 done to the ANU. That damage was done by both B and - -

27 -

28 HIS HONOUR: Two thousand - - -

29 MS TAYLOR: One hundred dollars.

30 HIS HONOUR: Do you oppose that order, Mr Galbally?

31 MR GALBALLY: No, Your Honour.


1 MS TAYLOR: I would seek that order, Your Honour?

2 HIS HONOUR: Just bear with me while I read what Judge Kimm had

3 to say.

4 (SENTENCE FOLLOWS)

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the queen v. julian paul assange

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commonwealth computer contrary

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mr galbally

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