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Supreme Court 15 December 2016

R v Obeid (No 12)

[2016] NSWSC 1815

Public order & justice offences
CRIME SENTENCING PARLIAMENTARIAN ABSENCE OF COHORT OF COMPARABLE CASES OFFENDER OWED ONEROUS DUTY LEVEL OF OFFENDING SERIOUS

Citation: R v Obeid (No 12) [2016] NSWSC 1815
Court: Supreme Court of New South Wales
Date: 15 December 2016
Judge: Beech-Jones J

Background

The offender was a long-serving Member of the NSW Legislative Council who had also served as Minister for Fisheries. Through a series of family trusts, he and his family held a 90% beneficial interest in two restaurant businesses operating under leases at Circular Quay wharves, leases that were due to expire in August 2005 without options for renewal.

As the lease expiry approached, the offender made representations to a senior officer of the Maritime Authority of NSW to advance the interests of the lessee, which was effectively his family's business vehicle. A jury found him guilty of the common law offence of wilful misconduct in public office, finding beyond reasonable doubt that he had intervened to advance the lessee's financial interests rather than out of any genuine belief that he was acting in the interests of his electorate.

At the sentencing hearing, the Crown pressed for full-time imprisonment. The offender's legal representatives argued for a lesser sentence, citing his age (73), a recent stroke and other medical conditions, and his prior record of good conduct.

  • What facts were necessarily found by the jury's verdict, for the purpose of sentencing?
  • What principles govern the sentencing of a public official convicted of wilful misconduct in public office, given the absence of a comparable statutory offence in NSW and very few analogous cases?
  • How should an analogue offence and its maximum penalty be used as a reference point when no directly applicable statutory maximum exists?
  • What weight should be given to the offender's prior good character in cases of this kind?
  • Whether adverse publicity and media coverage constituted extra-curial punishment capable of reducing the sentence?
  • Whether the offender's age, medical conditions, reduced life expectancy, and potential difficulties accessing care in custody warranted a non-custodial sentence?
  • Whether full-time imprisonment was the only appropriate sentencing outcome?

Decision

Beech-Jones J concluded that the jury, in returning its guilty verdict, necessarily found that the offender had intervened in the Maritime Authority's lease renewal process to advance the financial interests of himself or his family, and not for any legitimate public purpose. That finding was the foundation for the sentencing exercise.

His Honour identified the critical factor in assessing the level of criminality for wilful misconduct in public office as the nature of the duty owed by the offender and the extent of his departure from it. As a member of the upper house of the NSW Parliament, the offender owed a serious and onerous duty to the public. His conduct represented a significant departure from that duty, placing the offending at a serious level. In the absence of a NSW statutory analogue, His Honour used the maximum penalties for comparable offences in other jurisdictions as a reference point, rather than as a ceiling.

General deterrence and denunciation were identified as the dominant sentencing considerations. Prior good character was afforded only limited weight in cases of wilful misconduct in public office, on the basis that the holding of public office itself demands a higher standard of conduct. The adverse publicity the offender had received was acknowledged but found not to constitute relevant extra-curial punishment in the circumstances. His medical conditions, including reduced life expectancy and recent stroke, were taken into account, but His Honour was satisfied that adequate care could be provided in custody.

His Honour concluded that no sentence other than full-time imprisonment could be imposed, given the gravity of the breach of public trust. Special circumstances were established, justifying a variation to the usual ratio between non-parole period and head sentence, in light of the offender's health and age. A term of imprisonment was imposed accordingly.

Orders Made

No orders were made in this decision.

Key Takeaways

  • For the offence of wilful misconduct in public office, the critical sentencing factor is the nature of the duty owed by the offender and the degree of departure from that duty, rather than a simple assessment of financial harm caused.

  • Where no direct NSW statutory analogue exists, the maximum penalty for an analogous offence from another jurisdiction may be used as a reference point to calibrate the seriousness of the conduct, without treating that maximum as a strict ceiling.

  • Prior good character carries reduced weight when sentencing a public official for wilful misconduct in public office, because holding public office already entails a heightened standard of conduct and public trust.

  • Adverse publicity does not automatically constitute extra-curial punishment warranting a sentencing discount; the sentencing court examines whether the publicity caused relevant harm to the offender in the particular circumstances.

  • General deterrence and denunciation are the dominant sentencing considerations for this category of offending, reflecting the need to protect democratic institutions from abuse by those entrusted with public power.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Independent Commission Against Corruption Act 1988 (NSW)
- Police Act 1990 (NSW)
- Police Integrity Commission Act 1996 (NSW)

Cases
- Australian Communist Party v The Commonwealth [1951] HCA 5; 83 CLR 1
- DPP v Marks [2005] VSCA 277
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 253 CLR 58
- Griffiths v The Queen (1989) 167 CLR 372
- Einfeld v R [2010] NSWCCA 87
- Barton v R [2009] NSWCCA 164
- Blackstock v Regina [2013] NSWCCA 172
- Coles v R [2016] NSWCCA 32
- Duncan v R [2012] NSWCCA 78
- Hay v R [2013] NSWCCA 22
- Hughes v R [2014] NSWCCA 15
- Jansen v Regina [2013] NSWCCA 301
- Kenny v R [2010] NSWCCA 6
- HKSAR v Wong Kwong Shun Paul [2009] 4 HKLRD 840
- Jackson & Hakim v R (1988) 33 A Crim R 413
- Blanco v R [1999] NSWCCA 121