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Supreme Court 24 March 2023

R v Macdonald

[2023] NSWSC 270

Fraud & dishonesty
CRIMINAL LAW SENTENCE WILFUL MISCONDUCT IN PUBLIC OFFICE LABOR PARTY MINISTER MINING EXPLORATION LICENCE

Citation: R v Macdonald [2023] NSWSC 270
Court: Supreme Court of New South Wales
Date: 24 March 2023
Judge: Dhanji J

Background

The offender was the NSW Minister for Mineral Resources in the State Labor government between 2005 and 2008. In that role, he held statutory power to grant consent to apply for exploration licences and to grant exploration licences under the Mining Act 1992 (NSW). These powers were significant: in practice, a grant of consent to apply was the critical first step toward establishing a coal mine.

In late 2008, the offender exercised those powers in favour of Doyles Creek Mining Pty Ltd (DCM), a company connected to a former senior union official he knew professionally. The court found, following a judge-alone trial concluded in December 2022, that the offender's decisions were driven by a purpose of benefiting DCM and its associated individuals, and would not have been made but for that improper purpose. Neither the community residents who had formed a group to participate in the decision-making process, nor the mining companies registered as having expressed interest in the area, were in fact participating in an impartial process.

The sentencing proceedings followed the trial verdict (reported at R v Macdonald; R v Maitland (No 10 – verdict) [2022] NSWSC 1765). The offender had also previously been sentenced by Fullerton J in October 2021 for a separate but related offence, and that earlier sentence was a significant consideration in structuring the present penalties.

  • What sentences were appropriate for two counts of the common law offence of wilful misconduct in public office, where no statutory maximum penalty exists?
  • How should the principle of totality be applied across the two present counts and between those counts and the sentence already imposed by Fullerton J?
  • What weight should be given to the offender's advanced age, ill health, and the onerous conditions of his custody?
  • How does the absence of a statutory maximum penalty affect the sentencing exercise?
  • What is the proper characterisation of the harm caused by this form of offending, including the loss of public confidence in government?

Decision

Dhanji J identified the loss of public confidence in the system of government as the most significant consequence of the offending. Community members who had formed a residents' group and mining companies that had lodged formal expressions of interest had wasted their time and resources participating in what appeared to be a legitimate process, but was not. The damage to governmental institutions was treated as a serious harm affecting the entire community.

Because wilful misconduct in public office is a common law offence, no statutory maximum penalty applies. The court noted this required particular care in gauging the appropriate range. The court took into account the offender's advanced age and ill health, and the fact that conditions of custody had been and were likely to remain significantly more burdensome than those experienced by the ordinary prisoner. These matters operated to make the actual punishment more onerous than the face value of the sentences would suggest.

The court applied the totality principle both across the two present counts (which were ordered to run concurrently from the same date) and in relation to the sentence already imposed by Fullerton J for the earlier offence. By dating both present sentences from 21 January 2020 and considering the overall effective term, the court arrived at a combined effective sentence of 11 years and 3 months with a non-parole period of 7 years. Dhanji J acknowledged this was a substantial sentence, and that without the mitigating circumstances concerning the severity of custody conditions, a greater degree of accumulation would have been required to properly reflect the overall criminality.

Orders Made

  • The offender was convicted of counts 1 and 3 on the indictment.
  • Count 1: Imprisonment of 8 years, comprising a non-parole period of 5 years and 6 months and a balance of term of 2 years and 6 months, commencing 21 January 2020. Non-parole period expires 20 July 2025; total term expires 20 January 2028.
  • Count 3: Imprisonment of 6 years and 6 months, comprising a non-parole period of 4 years and 6 months and a balance of term of 2 years, commencing 21 January 2020. Non-parole period expires 20 July 2024; total term expires 20 July 2026.
  • The earliest date on which the offender becomes eligible for release on parole is 20 January 2027, pursuant to the sentence imposed by Fullerton J on 21 October 2021.

Key Takeaways

  • Loss of public confidence in the institutions of government is a primary sentencing consideration for wilful misconduct in public office, reflecting harm that extends beyond any individual victim to the entire community.
  • The absence of a statutory maximum penalty for this common law offence requires the sentencing court to exercise particular care in calibrating the appropriate sentence, drawing on analogous cases and general sentencing principle.
  • Advanced age, serious ill health, and demonstrably more onerous conditions of custody are capable of reducing the overall sentence imposed, where those factors make the practical burden of imprisonment significantly heavier than for a typical prisoner.
  • Applying the totality principle across multiple counts and in conjunction with a prior sentence requires the court to assess the overall effective term, not merely the arithmetic sum of individual sentences. Concurrent commencement dates may be used to give effect to that principle.
  • Harm caused by this form of ministerial misconduct includes not only corruption of a specific decision, but also the wasted time and resources of community groups and industry participants who engaged in good faith with a process that was, in fact, not impartial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Code Act 1995 (Cth)
- Evidence Act 1995 (NSW)
- Mining Act 1992 (NSW)

Cases
- R v Macdonald; R v Maitland (No 10 – verdict) [2022] NSWSC 1765
- Macdonald v R; Obeid v R; Obeid v R [2021] NSWSC 1662
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 18) [2021] NSWSC 1343
- Obeid v R [2017] NSWCCA 221
- R v Obeid (No 12) [2016] NSWSC 1815
- Pearce v The Queen (1998) 194 CLR 610
- Markarian v The Queen (2005) 228 CLR 357
- Elias v The Queen; Issa v The Queen (2013) 248 CLR 483
- Nuttall; Ex parte Attorney-General (Qld) (2011) 209 A Crim R 538
- Armstrong v R [2015] NSWCA 273
- Liu v R [2023] NSWCCA 30
- Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186
- R v MAK, R v MSK (2006) 167 A Crim R 159