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Supreme Court 2 June 2017

R v Macdonald; R v Maitland

[2017] NSWSC 638

Public order & justice offences
CRIMINAL LAW SENTENCE PRINCIPAL OFFENDER MINISTER OF MINERAL RESOURCES DAMAGE TO PUBLIC INSTITUTIONS MOTIVE NOT ESTABLISHED CRIMINAL LAW

Citation: R v Macdonald; R v Maitland [2017] NSWSC 638
Court: Supreme Court of New South Wales
Date: 2 June 2017
Judge: Adamson J

Background

Following a jury trial, a former NSW Minister for Mineral Resources (the principal offender) was convicted on two counts of wilful misconduct in public office. A former union official (the accessory) was convicted on two counts of being accessory before the fact to those same offences. The convictions arose from the Minister's decisions in August and December 2008 to grant consent, and then grant an exploration licence for coal, to a company in which the accessory had an interest.

The jury was satisfied beyond reasonable doubt that the Minister was substantially motivated by a desire to confer a benefit on the accessory and his company, and was not motivated to any significant degree by the public interest. The accessory intentionally encouraged and assisted the Minister to commit the offences, knowing the Minister was wilfully misconducting himself and intending that he do so. The accessory was found to have been motivated by financial gain.

The offence of wilful misconduct in public office is a common law offence in NSW. It has not been codified in the Crimes Act 1900 or any other NSW statute, which means there is no prescribed maximum penalty for either the principal offence or the accessory offence.

  • What sentences were appropriate for two counts of wilful misconduct in public office, given the offence carries no statutory maximum penalty?
  • How should the court approach statutory analogies when sentencing for a common law offence with no maximum?
  • What weight should be given to general deterrence and denunciation where a Minister of the Crown abuses a statutory power for the benefit of a private party?
  • How should the accessory's role and culpability be assessed relative to the principal offender's?
  • Whether the court should take account of findings made in a separate ICAC investigation when those findings were not the subject of evidence before it.

Decision

Adamson J identified the absence of a statutory maximum as a distinctive feature requiring careful reasoning. The court considered analogous statutory offences, including corruption-related provisions in the Crimes Act 1900 and comparable Commonwealth and interstate provisions, to calibrate the appropriate sentencing range. The court emphasised that the gravity of the offending lay in the Minister's deliberate misuse of a significant statutory power conferred on him under the Mining Act 1992 to grant coal exploration licences, a power subject to an implied obligation that it be exercised for public purposes only.

The court gave substantial weight to general deterrence and denunciation. The Minister had received multiple versions of the Ministerial Code of Conduct, each making clear that Ministers must not use their position for improper gain. His offending struck at public confidence in government institutions and the integrity of processes designed to ensure that coal resource allocation was free from political influence. The motive for the principal offender's conduct was not established to the criminal standard, but the absence of any public interest motivation was clear from the verdict.

The accessory was found to have been a causative force in the commission of the principal offences. His close professional relationship with the Minister, including what the court described as "unfettered access" to the Minister's office, placed him in a position to encourage and facilitate the misconduct. His culpability was assessed as somewhat less than the principal offender's, reflecting his role as an accessory rather than the officeholder who exercised the corrupt power.

The court declined to take into account findings from an ICAC investigation into either offender, as the evidence before the court did not extend to that investigation or its findings. Aggregate sentences were imposed on both offenders, with the sentences commencing from 26 May 2017 when bail was revoked.

Orders Made

Ian Macdonald (principal offender):
- Convicted of counts 1 and 3 (wilful misconduct in public office)
- Aggregate sentence of 10 years, commencing 26 May 2017 and expiring 25 May 2027
- Non-parole period of 7 years, expiring 25 May 2024; eligible for parole from 25 May 2024
- Indicative individual sentences: Count 1: 8 years; Count 3: 7 years

John Maitland (accessory):
- Convicted of counts 2 and 4 (accessory before the fact to wilful misconduct in public office)
- Aggregate sentence of 6 years, commencing 26 May 2017 and expiring 25 May 2023
- Non-parole period of 4 years, expiring 25 May 2021; eligible for parole from 25 May 2021
- Indicative individual sentences: Count 2: 5 years; Count 4: 4 years

Key Takeaways

  • Wilful misconduct in public office remains a common law offence in NSW with no maximum penalty; the sentencing court must look to analogous statutory offences to calibrate the appropriate range.
  • Where a Minister deliberately exercises a significant statutory power to benefit a private party rather than the public, the sentencing court will treat general deterrence and denunciation as weighty factors, reflecting the damage such conduct causes to public institutions and community confidence in government.
  • An accessory before the fact who intentionally encourages and assists the principal, and who is found to have been causative of the offending, faces substantial imprisonment, though culpability is assessed as less than that of the officeholder who wielded the corrupt power.
  • The standard of proof for sentencing purposes follows established principle: facts adverse to an offender must be proved beyond reasonable doubt, while matters in an offender's favour need only be established on the balance of probabilities.
  • Prior findings by ICAC concerning an offender will not be taken into account at sentence unless the evidence of those findings was actually placed before the sentencing court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 249B, 249E, 319, 346
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4, 5, 6, 7, 9, 21A, 24B, 24C
- Mining Act 1992 (NSW), ss 3, 13(4), 22, 51
- Independent Commission Against Corruption Act 1988 (NSW), s 87
- Corporations Act 2001 (Cth), s 184
- Criminal Code (Cth), s 142.2
- Criminal Code 1899 (Qld), s 92A
- Crimes Act 1958 (Vic), s 320
- Confiscation of Proceeds of Crime Act 1989 (NSW)
- Constitution Act 1902 (NSW), s 13A
- Parliamentary Contributory Superannuation Amendment (Criminal Charges and Convictions) Act 2017 (NSW)

Key Cases:
- The Queen v Olbrich (1999) 199 CLR 270
- Weininger v The Queen (2003) 212 CLR 629
- Obeid v R (2015) 91 NSWLR 226
- R v Obeid (No. 12) [2016] NSWSC 1815
- R v Macdonald; R v Maitland [2017] NSWSC 337 (separate judgment on elements of the offences)
- Markarian v The Queen (2005) 228 CLR 357
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- R v Nuttall; ex parte Attorney-General [2011] 2 Qd R 328
- Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
- Palmer v The Queen (1998) 193 CLR 1