Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 18) [2021] NSWSC 1343
Court: Supreme Court of New South Wales
Date: 21 October 2021
Judge(s): Fullerton J
Background
Following a judge-alone trial, Fullerton J convicted three offenders on 19 July 2021 of conspiring to commit the common law offence of wilful misconduct in public office. The offenders were a former Minister of the Crown, a former Member of Parliament, and a private citizen. The conspiracy was found to have been unlimited in time and unspecific as to the precise acts of misconduct to be carried out.
The underlying conduct had first attracted scrutiny when the Independent Commission Against Corruption (ICAC) commenced an investigation in November 2011. Criminal proceedings were not initiated until July 2015, and the trial did not proceed until February 2020. The sentence hearing took place over three days in September 2021.
Each offender filed extensive documentary evidence addressing personal health, subjective circumstances, and the impact of COVID-19 conditions within the New South Wales corrections system. No oral evidence was called by any party.
Legal Issues
- What is the correct approach to assessing objective seriousness when sentencing for a common law offence that carries no statutory maximum penalty?
- How should a sentencing court differentiate the criminal culpability of co-conspirators who held different roles (Minister of the Crown, Member of Parliament, and private citizen)?
- Whether the conspiracy, as framed and proved, constituted misconduct serious enough to cross the threshold requiring imprisonment under s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
- How should the court treat significant delay between the ICAC investigation and the initiation of criminal proceedings?
- What weight should be given to the age and ill health of two of the offenders, including the risk of contracting COVID-19 in custody?
- Whether the parity principle required different sentences to reflect the different roles and personal circumstances of each offender?
Decision
Fullerton J assessed the objective seriousness of the conspiracy as high. Because the offence is a common law offence with no statutory maximum, there was no fixed legislative benchmark against which to calibrate seriousness. The court engaged in detailed reasoning about the appropriate sentencing range, including consideration of statutory analogues. The conspiracy was found to have been capable of undermining the institutions of government, and the sentencing purposes of denunciation and general deterrence were identified as predominant.
The court separately assessed the criminal culpability of each offender by reference to their respective roles in the conspiracy and the acts each performed in furtherance of it. The former minister bore the highest culpability, having held the most significant public office and being the person whose exercise of ministerial power was the intended instrument of the conspiracy. The court applied the parity principle, requiring that any differences in sentence be justifiable by reference to genuine differences in culpability or personal circumstances, rather than arbitrary disparity.
Counsel for two of the offenders argued that the conspiracy, as particularised and proved, did not contemplate ministerial conduct amounting to gross criminal misconduct, and therefore imprisonment was not the only available sentencing option. The court rejected that characterisation. Fullerton J found that the intentional participation of each offender in an agreement that was unlimited as to time, with an implied acceptance that the minister would act when opportunity arose, represented a conspiracy of a most serious kind.
The court addressed the impact of COVID-19 restrictions within the New South Wales corrections system, the significant delay in the commencement of criminal proceedings, and the subjective circumstances of each offender, including age and ill health. These were treated as relevant to mitigation but did not displace the primary sentencing considerations of denunciation and deterrence.
Orders Made
No orders were made in this decision.
Key Takeaways
- Sentencing for a common law offence that carries no statutory maximum requires the court to identify an appropriate range by other means, including reference to statutory analogues, rather than simply treating the sentencing discretion as unfettered.
- A conspiracy to commit wilful misconduct in public office that is unlimited as to time and unspecific as to the acts of misconduct to be committed can still be assessed as objectively serious at the high end, particularly where the agreement is found to have the capacity to undermine institutions of state.
- Where co-conspirators occupy different positions (ministerial officeholder, parliamentarian, and private citizen), the parity principle requires the sentencing court to justify differences in sentence by reference to genuinely different degrees of culpability and personal circumstances, rather than impose uniformity.
- The Supreme Court held that significant delay between an ICAC investigation and the initiation of criminal proceedings is a relevant sentencing consideration, though its precise weight depends on the circumstances of each offender.
- Subjective factors such as advanced age, ill health, and the risk of COVID-19 exposure in custody were treated as relevant mitigating considerations, but they did not override the primacy of denunciation and general deterrence in cases involving corruption of public office.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 21A, 55
- Criminal Code Act 1995 (Cth)
- Independent Commission Against Corruption Act 1988 (NSW)
- Mining Act 1992 (NSW)
- State Records Act 1988 (NSW)
Cases
- Blackstock v R [2013] NSWCCA 172
- Coles v R [2016] NSWCCA 32
- Devaney v R [2012] NSWCCA 285
- Dickson v R [2016] NSWCCA 105
- Doudar v R [2021] NSWCCA 37
- Duncan v R [2012] NSWCCA 78
- Elomar v R [2018] NSWCCA 224
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Jackson v R; Hakim v R (1988) 33 A Crim R 413
- Jaturawong v R [2011] NSWCCA 168
- Kenny v R [2010] NSWCCA 6
- Maitland v R; Macdonald v R [2019] NSWCCA 32
- Marie v R (1983) 13 A Crim R 440
- Masters v R (1992) 26 NSWLR 450
- Morton v R [2014] NSWCCA 8
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Baldwin [2001] NSWCCA 320
- R v Bruneau (1963) CarswellOnt 22