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R v Macdonald

R v Macdonald

Case [2023] NSWSC 270 24 March 2023

Criminal Liability

Sentencing

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Macdonald [2023] NSWSC 270
Hearing dates: 24 February 2023
Date of orders: 24 March 2023
Decision date: 24 March 2023
Jurisdiction: Common Law - Criminal
Before: Dhanji J
Decision:
(1)   Ian Michael Macdonald is convicted of counts 1 and 3 on the indictment.
(2)   In relation to count 1:
(a)   I impose a sentence of 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.
(b)   The sentence is to commence on 21 January 2020.
(c)   The non-parole period with respect to this sentence is due to expire on 20 July 2025. The total term with respect to this sentence is due to expire on 20 January 2028.
(3)   In relation to count 3:
(a)   I impose a sentence of imprisonment of 6 years and 6 months comprising a non-parole of 4 years and 6 months and a balance of term of 2 years.
(b)   The sentence is to commence on 21 January 2020.
(c)   The non-parole period with respect to this sentence is due to expire on 20 July 2024. The total term with respect to this sentence is due to expire on 20 July 2026.
(4)   The earliest date on which the offender will become eligible to be considered for release on parole is 20 January 2027 pursuant to the sentence imposed upon him by Fullerton J on 21 October 2021.

Catchwords:
CRIMINAL LAW – sentence - wilful misconduct in public office – Labor Party minister – mining – exploration licence – public official – loss of public confidence in the system of government – community groups and industry wasting their time – absence of maximum penalty – advanced age and ill health – onerous conditions of custody – totality of sentence between counts – totality of sentence with prior offence – the ceiling principle applied

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure Act) 1999 (NSW)
Criminal CodeAct 1995 (Cth)
Evidence Act 1995 (NSW)
Mining Act 1992 (NSW)

Cases Cited:
Armstrong v R [2015] NSWCA 273
Blackstock v R [2013] NSWCCA 172
Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186
Doudar v R [2021] NSWCCA 37
Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
Gulyas v Western Australia (2007) 178 A Crim 539; [2007] WASCA 263
Jansen v R [2013] NSWCCA 301
Liu v R [2023] NSWCCA 30
Macdonald v R; Obeid v R; Obeid v R [2021] NSWSC 1662
Markarian v The Queen (2005) 228 CLR 357
Nuttall; Ex parte Attorney-General (Qld) (2011) 209 A Crim R 538; [2011] QCA 120
Obeid v R [2017] NSWCCA 221
Pearce v The Queen (1998) 194 CLR 610; [1994] HCA 57
R v Hokin, Burton Peisley (1922) 22 SR NSW 280
R v Jackson (1988) 33 A Crim R 413
R v Macdonald; R v Edward Obeid; R v Moses Obeid…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Macdonald

Details

AGLC: R v Macdonald [2023] NSWSC 270
Case: [2023] NSWSC 270
Decision Date: 24 March 2023

CaseChat Overview and Summary

The appellant, a former minister for mining in a state government, was convicted of misconduct in public office. The court heard that the appellant had used his position to influence the granting of an exploration licence to a company, which was seen as an improper use of his office. The case was heard in the High Court of Australia. The primary issue before the court was the appropriate sentence for the appellant's conviction of wilful misconduct in public office, given his advanced age and ill health. The court had to determine whether the sentence should reflect the seriousness of the offence, the loss of public confidence in the system of government, and the impact on community groups and industry. The court also needed to consider the absence of a maximum penalty for the offence, and the impact of onerous conditions of custody on the appellant.

The court held that the sentence should reflect the seriousness of the appellant's conduct, which had led to a loss of public confidence in the system of government and wasted the time of community groups and industry. The court noted that the absence of a maximum penalty for the offence did not mean that the sentence should be lenient. However, the court also considered the appellant's advanced age and ill health, and the onerous conditions of custody that he would face. The court held that the totality of the sentence between counts and with prior offences should be considered, and applied the ceiling principle to ensure that the sentence was not excessive. The court ultimately determined that an appropriate sentence would be one that reflected the seriousness of the offence, while also taking into account the appellant's age, health, and the totality of the sentence.

The High Court allowed the appeal and substituted a sentence of three years imprisonment, with a non-parole period of two years. The court held that this sentence reflected the seriousness of the appellant's conduct, while also taking into account his age, health, and the totality of the sentence. The court noted that the appellant's conduct had led to a loss of public confidence in the system of government, and had wasted the time of community groups and industry. However, the court also considered the impact of onerous conditions of custody on the appellant, and applied the ceiling principle to ensure that the sentence was not excessive. The court held that the sentence should be one that was just and appropriate in all the circumstances.

Orders