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Court of Criminal Appeal 6 October 2023

Macdonald v R (Sentence)

[2023] NSWCCA 253

Public order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE COMMON LAW OFFENCE CHOICE OF COMPARABLE SENTENCES USE OF STATUTORY ANALOGUES FOR GUIDANCE

Citation: Macdonald v R (Sentence) [2023] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 6 October 2023
Judges: Bell CJ; Basten AJA; Button J

Background

The applicant served as NSW Minister for Mineral Resources from 2005 to 2010. He was convicted of conspiring with a backbench colleague and that colleague's son to wilfully misconduct himself in public office, with the purpose of benefitting the Obeid family. None of the conspirators received a discount for a guilty plea, as each had been convicted after a trial.

On 21 October 2021, the sentencing judge (Fullerton J) imposed a term of nine years and six months' imprisonment, with a non-parole period of five years and three months. The applicant became eligible for parole on 20 January 2027.

The applicant sought leave to appeal the sentence on five grounds. The Court of Criminal Appeal dismissed the appeal, with Bell CJ, Basten AJA, and Button J each providing reasons.

  • Whether the sentencing judge erred by treating the contingent or "opportunistic" nature of the conspiracy's execution as an aggravating factor
  • Whether the judge gave insufficient weight to a proposed statutory analogue, namely the Commonwealth offence of "abuse of public office" (Criminal Code (Cth), s 142.2), which carries a maximum of five years' imprisonment
  • Whether the characterisation of the offending's objective seriousness as "of the highest order" was erroneous
  • Whether the sentence was manifestly excessive
  • Whether the sentencing judge mistook the facts

Decision

Ground 1: Aggravation and opportunism. The Court found the sentencing judge made no finding that the conspiracy was aggravated by a lack of initial planning. The word "opportunistic" was used to describe an agreement to work toward a particular outcome by taking steps as circumstances permitted, not to describe unplanned or unpremeditated offending. The applicant's submission misread the judgment; observations in oral argument could not be taken to reflect the views expressed in the written judgment.

Ground 2: Statutory analogue. The Court confirmed that when sentencing for a common law offence carrying no maximum penalty, a court may have regard to a statutory analogue to guide the appropriate range. However, it drew an important distinction: a statutory offence enacted by a different Parliament sheds little light on the unexpressed intention of the NSW legislature. Because there was no useful NSW statutory analogue, the judge did not err in giving minimal weight to the Commonwealth analogue put forward by the applicant.

Ground 3: Objective seriousness. The Court held that the phrase "of the highest order" did not equate to characterising the offending as falling into the worst-case category that would justify a maximum sentence. The use of that phrase had to be read in context, and its content had not been placed in issue at first instance. In dismissing this ground, the Court observed that the use of possible hyperbole does not of itself establish sentencing error; what matters is what the judge actually did.

Grounds 4 and 5: Manifest excess and mistaken facts. Leave to appeal was granted on these grounds, but both were dismissed. The Court confirmed that adverse factual findings going to objective seriousness or culpability that are not encompassed by the verdict must be established beyond reasonable doubt. However, in a circumstantial case, no single fact may individually be established to that standard, yet the overall conclusion of guilt may still be. On manifest excess, the Court found the high level of objective seriousness was properly assessed by reference to the incalculable harm caused by Ministerial misconduct, the strict legal framework governing disposal of mineral resources, and the initiative the applicant had to exercise in advancing the Obeids' interests.

Orders Made

  • Leave to appeal granted with respect to grounds 4 and 5
  • Appeal dismissed with respect to grounds 4 and 5
  • Leave to appeal otherwise refused

Key Takeaways

  • When sentencing for a common law offence with no maximum penalty, a court may use a statutory analogue as a guide, but a statutory offence enacted by another Parliament provides little assistance in identifying the unexpressed intention of the NSW legislature and may properly be given minimal weight.
  • A description of objective seriousness as being "of the highest order" does not necessarily equate to a finding that the offending falls into a worst-case category warranting the maximum available sentence; appellate error depends on what the judge actually did, not the language used in isolation.
  • Adverse factual findings on sentence that go beyond the verdict and are adverse to the offender's interests must be established beyond reasonable doubt, but in circumstantial cases no individual fact need independently satisfy that standard provided the overall conclusion does.
  • The Court of Criminal Appeal confirmed that a constraint on fact-finding that was not raised before the sentencing judge cannot ordinarily be raised for the first time on appeal.
  • Bell CJ observed that Ministerial conduct utterly corrosive of public trust causes unquantifiable damage to democracy, reinforcing that such offending attracts significant weight in the sentencing purposes of denunciation, general deterrence, and adequate punishment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), Pt 4A, s 249B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, Pt 4 Div 1A Table
- Criminal Code (Cth), s 142.2
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes Act 1958 (Vic), s 320
- Criminal Code (Qld), s 87
- State Records Act 1998 (NSW), s 21

Cases
- House v The King (1936) 55 CLR 499
- The Queen v Olbrich (1999) 199 CLR 270
- Esso Australia Resources Ltd v Federal Commissioner of Taxation (Cth) (1999) 201 CLR 49
- Cheung v The Queen (2001) 209 CLR 1
- Markarian v The Queen (2005) 228 CLR 357
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- The Queen v Kilic (2016) 259 CLR 256
- Forrest v Wilson (2017) 262 CLR 510
- Mulato v Regina [2006] NSWCCA 282
- Hordern v R [2019] NSWCCA 138
- R v Macdonald [2023] NSWSC 270
- Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32