R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 18)

[2021] NSWSC 1343

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 18) [2021] NSWSC 1343

Hearing dates:

8-10 September 2021

Decision date:

21 October 2021

Jurisdiction:

Common Law

Before:

Fullerton J

Decision:

Ian Macdonald – Imprisonment for 9 years and 6 months, commencing on 21 October 2021, comprising a non-parole period of 5 years and 3 months with a balance of term of 4 years and 3 months. He will be eligible for release to parole on 20 January 2027.

Edward Obeid – Imprisonment for 7 years, commencing on 21 October 2021, comprising a non-parole period of 3 years and 10 months, with a balance of term of 3 years and 2 months. He will be eligible for release to parole on 20 August 2025.

Moses Obeid – Imprisonment for 5 years, commencing on 21 October 2021, comprising a non-parole period of 3 years with a balance of term of 2 years. He will be eligible for release to parole on 20 October 2024.

Catchwords:

CRIME — Sentencing for a common law conspiracy to commit the common law offence of wilful misconduct in public office — no maximum term of imprisonment provided under statute — relevance of statutory analogue — whether sentencing discretion unfettered — assessment of objective seriousness of a conspiracy unspecific as to the acts of misconduct to be committed and unlimited as to time — whether institutions of state undermined — assessment of differential criminal culpability of offenders — one conspirator Minister of the Crown — one conspirator Member of Parliament — one conspirator private citizen — significance of delay in the initiation of criminal proceedings following investigation by Independent Commission Against Corruption —subjective circumstances of ill health and age of two offenders — good character — opprobrium experienced by one offender impacting adversely upon mental and physical health — rehabilitation —cooperation — impact of COVID-19 restrictions on sentence

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Code Act 1995 (Cth)

Independent Commission Against Corruption Act 1988 (NSW)

Mining Act 1992 (NSW)

State Records Act 1988 (NSW)

Cases Cited:

Blackstock v R [2013] NSWCCA 172

Coles v R [2016] NSWCCA 32

Dickson v R [2016] NSWCCA 105

Devaney v R [2012] NSWCCA 285

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

Kennyv 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 vBruneau (1963) CarswellOnt 22; [1964] 1CCC 97; [1964] 1 OR 263, 42 CR 93

R v DW (2012) 221 A Crim R 63; [2012] NSWCCA 66

R v Einfeld [2009] NSWSC 119

R v Elzakhem [2008] NSWCCA 31

R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370

R v Ghosh [1982] QB 1053

R v Hokin, Burton and Peisely (1922) 22 SR (NSW) 280

R v Hunter (1984) 36 SASR 101

R v Isaacs (1997) 41 NSWLR 374

R v Kane [1975] VR 658

R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858

R v Mammone [2006] NSWCCA 138

R vNuttall (2011) 209 A Crim R 538; [2011] QCA 120

R v Obeid (No 12) [2016] NSWSC 1815

R v Phelan (1993) 66 A Crim R 446

R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7

R v Sellen (1991) 57 A Crim R 313

R v Simon (2003) 142 A Crim R 166; [2003] NSWCCA 147

R v Smith (2000) 114 A Crim R 8; [2000] NSWCCA 140

R v Wickham [2004] NSWCCA 193

R v Williams (2005) 152 A Crim R 548; [2005] NSWCCA 315

Raptis v R (1988) 36 A Crim R 362

Savvas v R (No 2) (1991) 58 A Crim R 174

Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29

Scott v R [2020] NSWCCA 81

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Shepherd (No 2) v R (1988) 37 A Crim R 466

Shum Kwok Sher v HKSAR [2002] 3 HKC 117; (2002) 5 HKCFAR 381

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

The Queen v Hoar (1981) 148 CLR 32; [1981] HCA 67

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Toller v R [2021] NSWCCA 204

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:

Principal judgment

Parties:

The Crown
Ian Michael Macdonald (Offender)
Edward Moses Obeid (Offender)
Moses Edward Obeid (Offender)

Representation:

Counsel:
S Callan SC / R Rodger (Crown)
J Martin (Offender Macdonald)
A Francis (Offender Edward Obeid)
MJ Neil QC (Offender Moses Obeid)

Solicitors:
Solicitor for Public Prosecutions (Crown)
HWL Ebsworth Lawyers (Offender Macdonald)
M Bowe (Offender Edward Obeid)
Murphy’s Lawyers Inc (Offender Moses Obeid)

File Number(s):

2015/212910; 2015/214251; 2015/212851

1. HER HONOUR: On 19 July 2021, after a trial over which I presided without a jury, I convicted Mr Ian Macdonald, Mr Edward Obeid and Mr Moses Obeid of conspiring to commit the common law offence of wilful misconduct in public office, the offence upon which they were arraigned on 11 February 2020 and upon which they each entered a plea of not guilty.

2. Given the length of my published reasons for entering verdicts of guilty against each of the offenders, in the proceedings on 19 July 2021 I read a summary of those reasons. My extended reasons (referred to for present purposes as “the verdict judgment”) were published on the “NSW Caselaw” database later that day. ^[1]

   1. R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858.

3. Given the length of my sentencing reasons, I propose to take the same approach. That is, I will read a summary of my reasons for arriving at the sentences to be imposed. My extended sentencing reasons will be published on the “NSW Caselaw” database at the conclusion of today’s proceedings.

4. On 19 July 2021, after convictions were entered, a timetable was fixed for the sentence hearing.

5. Those proceedings were heard on 8, 9 and 10 September 2021 after which I reserved my decision.

The evidence adduced on sentence

6. All parties filed documentary evidence which was largely admitted without objection. ^[2]

   2. A Schedule of the Exhibited Material is annexed as Annexure 1 to this judgment.

7. In addition to a body of formal evidence setting out the criminal history of each of the offenders, and the custodial history of Mr Macdonald and Edward Obeid (each of whom has served or partially served a sentence of imprisonment for unrelated offending ^[3] ), the Crown tendered a chronology of events dating from November 2011 when the Independent Commission Against Corruption of New South Wales (ICAC) commenced its investigation into the alleged corrupt conduct of Mr Macdonald, Edward Obeid and other individuals under s 20 of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act), an investigation which culminated in the initiation of criminal proceedings in July 2015 and a chronology of proceedings in this Court since that date.

   3. Sentence imposed on Edward Obeid on 15 December 2016: imprisonment for 5 years with a non-parole period of 3 years. Sentence imposed on Mr Macdonald on 2 June 2017: aggregate sentence of 10 years with a non-parole period of 7 years, conviction quashed on appeal on 25 February 2019.

8. The balance of the Crown’s documentary evidence was principally directed to the protocols put in place by Corrective Services New South Wales (CSNSW) as an institutional response to the COVID-19 pandemic, including the processes that are currently in place for people entering correctional facilities as sentenced prisoners and the systems available to manage and address their health status.

9. The extent to which that evidence, supplemented by documentary evidence of various kinds tendered by the offenders, addresses this Court’s concerns as to the adequacy of protections within the prison system to protect against the risk that any of the offenders may contract COVID-19 upon entering custody will be addressed later. At that time, I will also address the impact, more generally, of restrictions that are currently in place within the New South Wales corrections system responsive to the health pandemic and the impact of that state of affairs on the question of sentence.

10. Each of the offenders filed a compendium of materials concerning their mental and physical health and their personal circumstances, including testimonials from their friends and family members.

11. No oral evidence was adduced either by the Crown or by the offenders.

Submissions on sentence

12. The Crown and counsel for each of the offenders filed comprehensive written submissions which they addressed in oral argument.

The approach to sentence in this case

13. This sentencing exercise contrasts with the fact-finding role of a sentencing judge who has presided over a jury trial where a jury’s public pronouncement of its verdict extends no further than a finding that the elements of an offence or offences have been proved beyond reasonable doubt. In those circumstances, it is for the sentencing judge to review the evidence adduced at the trial and to make factual findings for the purposes of sentence that are not inconsistent with the jury’s verdict,^[4] including the circumstances in which the offence was committed, its objective seriousness and, in some cases, the role played by an offender in the commission of the offence.

    4. R v Isaacs (1997) 41 NSWLR 374.

14. My reasons for finding the guilt of each of the offenders established beyond reasonable doubt were extensive. In addition to finding each of the elements of the conspiracy proved beyond reasonable doubt, ^[5] I made a range of interrelated factual findings contextual to finding both the existence of the conspiracy proved beyond reasonable doubt and the participation of each of the accused in that conspiracy proved to the same criminal standard.

    5. Verdict judgment at [1822], [1979] and [2018].

15. It will be necessary to refer to a number of those findings in this sentencing judgment. Where possible, I will do so in summary.

16. Where factual findings concerning the question of objective seriousness and the culpability of the offenders are either not comprehended by my verdict judgment or not expressly stated as a finding I made to the criminal standard in that judgment, I accept that where those findings are adverse to any of the offenders for sentencing purposes I must be satisfied they are established beyond reasonable doubt. I also acknowledge that where I am invited by counsel for the offenders to take into account, in their favour, circumstances which ameliorate their criminal culpability, it is sufficient that those circumstances are established on the balance of probabilities. ^[6]

    6. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.

17. That said, as the authorities make clear,^[7] if I am unpersuaded of the basis upon which I am urged by counsel for one of the offenders to make a favourable finding as to the degree of that offender’s culpability on the balance of probabilities, I am not obliged to sentence the offender on the basis contended for by their counsel unless the prosecution proves the contrary proposition beyond reasonable doubt. ^[8] That is because, as recognised by the plurality in Weininger v The Queen, the different standards of proof that apply would be ignored. As their Honours emphasised at [24], sentencing is not a syllogistic process but a synthesis of competing factors to the extent that they are known or capable of discernment from the evidence.

    7. Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 applying Olbrich.

    8. The Queen v Olbrich.

Sentencing for an offence at common law

18. The offenders are to be sentenced having regard to the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act).

19. Most relevantly they include:

1. ensuring that each offender is adequately punished for the offence (s 3A(a));

2. making each offender accountable for his actions (s 3A(e));

3. denouncing the conduct of each offender (s 3A(f));

4. recognising the harm done to the community by the commission of the offence (s 3A(g)); and

5. deterring others from committing similar offences (s 3A(b)).

20. It was accepted by counsel for each of the offenders that the offence of conspiracy for which they are to be sentenced is objectively serious and that in sentencing each of them for that offence the need to deter those in public office from contemplating actions that damage or undermine the institution of government, and to denounce those who are convicted of doing so, are the sentencing principles which will be of predominant weight in this sentencing exercise. ^[9]

    9. R v Obeid (No 12) [2016] NSWSC 1815 at [84]-[85].

21. Other provisions of the Sentencing Act are also engaged. They include s 5(1) of the Act which obliges me to make an affirmative finding that, having regard to other sentencing alternatives provided for in the Sentencing Act, no other punishment is appropriate for each of the offenders other than a sentence of imprisonment.

22. Of the three offenders, only counsel for Moses Obeid conceded that the statutory threshold in s 5 of the Sentencing Act was satisfied. In their written submissions, counsel for each of Edward Obeid and Mr Macdonald submitted that, properly understood, the agreement that underpinned the conspiracy as framed, particularised and proved by the Crown at trial, did not contemplate that Mr Macdonald would breach his Ministerial duties and obligations in such a way as to amount to an example of gross criminal misconduct and, that being the case, a sentence of imprisonment was not the only available sentencing option.

23. In the Crown’s submission, the intentional participation of each of the offenders in a conspiracy that was unlimited as to the time within which the unlawful object of the agreement would be achieved, and where each of the offenders, as parties to the conspiracy, impliedly accepted that Mr Macdonald would do what he could when the opportunity presented to further the achievement of the unlawful object of their agreement and the improper purpose inherent in it, represents a conspiracy to commit misconduct in public office of a most serious kind. ^[10]

    10. As damage done to the public forms part of the assessment of the level of criminality involved in the commission of the offence, it cannot be considered as a further aggravating factor under s 21A(2)(g) of the Sentencing Act.

24. For the reasons which follow, in particular my assessment of the objective gravity of the conspiracy committed by each of the offenders as high and the criminal culpability of each of them as reflected in the roles they performed as co-conspirators which is also of considerable gravity, I am satisfied the statutory threshold in s 5 of the Sentencing Act has been met and that no sentence other than imprisonment is an appropriate sentencing outcome for all three offenders.

25. In the event that I came to that conclusion, counsel for each of the offenders invited me to direct that their sentences of imprisonment be served in the community by way of an Intensive Corrections Order as provided for in Part 4 of the Sentencing Act. In advancing that submission, all counsel acknowledged that s 68(1) of the Sentencing Act provides that an Intensive Corrections Order must not be made if the duration of the term of imprisonment imposed by a sentencing court exceeds two years.

26. In different ways and with different emphasis, counsel for each of the offenders submitted that after synthesising the weight of their respective subjective cases together with the objective seriousness of the conspiracy (which they submitted was not at the high level contended for by the Crown), a sentence of no more than two years’ imprisonment for each of them was a proportionate and just sentence to be imposed in the circumstances.

27. The Crown submitted that in order to reflect an offence at the highest end of objective seriousness, the effect of which was to undermine the importance of the public objects of the office of the Minister for Mineral Resources and to bring that office into disrepute, and in order to address the multiple purposes of sentencing in s 3A of the Sentencing Act, not limited to general deterrence and denunciation but also to ensure each of the offenders are adequately punished for their offending, the term of imprisonment I would impose on each of them would, inevitably, exceed two years.

28. As will become clear in the reasons for sentence which follow, in addition to finding that the sentencing threshold in s 5 of the Sentencing Act is satisfied, I am also satisfied that the sentence of imprisonment to be imposed on each of the offenders will exceed two years.

29. The balance of these sentencing reasons deals with the factual findings I have made in assessing the objective seriousness of the offending comprehended by the conspiracy as of a very high order, together with the weight to be afforded a range of other considerations integral to the exercise of my sentencing discretion, including the personal and subjective circumstances of the offenders, in imposing sentence and fixing the term of imprisonment each of the offenders will be required to serve before becoming eligible for release to parole.

The objective seriousness of the conspiracy

30. An assessment of the objective seriousness of the conspiracy in which each of the offenders was an intentional participant is fundamental to this sentencing exercise, as it is in every sentencing exercise.

31. In this case, because the conspiracy to commit misconduct in public office is an offence at common law, there is no maximum penalty prescribed by the Parliament against which the objective seriousness of the conspiracy can be assessed. The impact of that fact on this sentencing exercise, and its impact on the sentence to be imposed on each of the offenders, was the subject of considerable debate at the sentence hearing. I will consider that issue later in these sentencing reasons.

32. The assessment of the objective seriousness of the conspiracy is to be made not only by reference to its constituent elements, each of which I was satisfied was established beyond reasonable doubt, ^[11] and that the seriousness of the offending merited criminal punishment, the fifth element of the substantive offence of misconduct in public office,^[12] but also to the circumstances in which I was satisfied the offence was committed, and what those circumstances reveal about the objective gravity of the conspiracy and the culpability of each of the offenders as intentional participants in it.

    11. Verdict judgment at [1822], [1979], [2018].

    12. Verdict judgment at [2034].

33. In undertaking an assessment of the offenders’ culpability as co-conspirators, by which I should be taken to mean their moral culpability in the conventional language of a sentencing judgment, I do not intend to conflate the personal circumstances of any one of the offenders which, in other circumstances, might inform moral culpability. ^[13] Their subjective circumstances will be dealt with separately when I consider the extent to which matters personal to the offenders operate in mitigation of sentence.

    13. Muldrock v The Queen [2011] HCA 39; 244 CLR 120.

34. I have also endeavoured to evaluate the objective seriousness of the offence and the criminal culpability of each of the offenders separately in order to accommodate the need in this sentencing exercise to differentiate between the objective seriousness of a conspiracy of the scope and object of which the offenders were convicted on the one hand, and their complicity as co-conspirators in that conspiracy on the other. That assessment is informed in large part by reference to the acts the offenders committed in furtherance of the conspiracy. An assessment of the criminal culpability of each of the offenders will also inform the application of the principle of parity.

30. Stated simply, the application of the principle of parity requires that co-offenders are treated by a sentencing court in a like manner allowing for different sentences to be imposed where different degrees of culpability are either revealed by the evidence or accepted by the Crown. Additionally, and where appropriate, the personal or subjective circumstances of co-offenders, together with the different part each of them has played in committing the offence the subject of the sentencing exercise, should be reflected in the imposition of different sentences where that is warranted in the exercise of the sentencing discretion. ^[14] Ultimately, it is the obligation of a sentencing court in endeavouring to dispense equal justice when sentencing co-offenders to avoid unjustifiable disparity in the sentences to be imposed on them. ^[15]

    14. Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.

    15. Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.

31. In making an assessment of the objective gravity of the conspiracy and the culpability of the offenders as co-conspirators, I am conscious, as a matter of law, that proof of a conspiracy consists of what the conspirators intentionally agreed and intended should occur and not whether the unlawful object of their agreement was ultimately achieved. ^[16] Ms Francis submitted, correctly, that the inchoate offence of conspiracy lies not in the overt acts themselves, injurious though they may be to an ordered society, but in the anterior agreement to commit them.

    16. Dickson v R [2016] NSWCCA 105 at [104]-[105].

32. The Crown did submit, however, that it was appropriate, as a fact bearing on the objective seriousness of the conspiracy proved in this case, to take into account that the object of the conspiracy was implemented. ^[17] Although Mr Neil accepted that the offence of conspiracy continues whilst ever the agreement remained unexecuted^[18] he also emphasised that for sentencing purposes, the primary focus must be on what the conspirators intended to bring about, not whether the object was achieved. ^[19] I do not discern any material difference in the approach of counsel. In this sentencing exercise, the offenders will not be punished because the executed conspiracy enabled the Obeid family interests to secure a vast profit from their contractual engagements with Cascade Coal Pty Limited, a chain of events set out exhaustively in my verdict judgment. However, the fact that the agreement was forged in such a way that following its execution those contractual arrangements ultimately materialised does inform the objective seriousness of the conspiracy.

    17. Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29 at 7-8; R v DW (2012) 221 A Crim R 63; [2012] NSWCCA 66 at [115].

    18. Masters v R (1992) 26 NSWLR 450 at 458.

    19. Dickson v R [2016] NSWCCA 105 at [104]-[105].

33. I am also conscious of the fact that although the evidence adduced at the trial allowed me to find that each of the offenders did and said things to promote or advance achieving the unlawful object of their agreement, evidence which at trial was relevant to prove both the existence of the conspiracy and the participation of each of them in it, ^[20] caution needs to be exercised to ensure that the offenders are not punished additionally for their actions in carrying out the conspiracy where those actions might constitute additional or separate criminal conduct. ^[21]

    20. An analysis which was set out at length in my verdict judgment.

    21. The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.

34. That approach is of particular resonance in the sentence to be imposed on Mr Macdonald. Although I was satisfied that between May and September 2008 Mr Macdonald committed five discrete acts of wilful misconduct, each of which constituted a deliberate breach of either or both of his Ministerial duties of impartiality and confidentiality, and on each occasion for the improper purpose of benefiting his co-conspirators and/or their family and associates, as I had occasion to note during the course of delivering my verdict judgment, the Crown elected not to charge Mr Macdonald with any substantive acts of wilful misconduct or to allege that either of Edward Obeid or Moses Obeid were accessories to his commission of those substantive offences. That being the case, it would be an error to sentence Mr Macdonald on the basis that he in fact committed a series of substantive offences in the course of executing the agreement with his co-offenders.

35. That is not to suggest that what I was satisfied the evidence shows Mr Macdonald did in executing the agreement, or what the evidence shows Edward Obeid or Moses Obeid did, is irrelevant to the sentencing exercise. A sentencing court is entitled to refer to the acts the offenders committed in furtherance of a conspiracy, although a “fine line” must be walked to ensure that an offender is sentenced for the conspiracy ^[22] and is not further penalised for the acts committed in furtherance of achieving the unlawful object of that conspiracy. ^[23]

    22. Savvas v The Queen; The Queen v De Simoni.

    23. The Queen v Hoar (1981) 148 CLR 32; [1981] HCA 67 at 38.

36. The Crown submitted, and I accept, that a principled approach to determining the objective seriousness of the conspiracy in this case allows me to take into account the overt acts committed by each of the offenders in furtherance of achieving the shared objective of the unlawful agreement insofar as those acts bear relevantly upon the terms of the agreement and the nature and degree of criminality involved in its execution. ^[24] In this case, where the unlawful object of the conspiracy contemplated an extended process of execution actioned by Mr Macdonald at his discretion, my approach to sentencing Edward Obeid and Moses Obeid will not be confined to what it was proved each of them actually did in furtherance of the conspiracy. Instead, I propose to have regard to the extent to which they were each complicit in the actions undertaken by each other in pursuit of achieving the object of the agreement, ^[25] including, so far as Moses Obeid and Edward Obeid are concerned, participating in the agreement in the full knowledge that Mr Macdonald would wilfully breach his Ministerial duties and obligations opportunistically, and in circumstances where they knew that as the Minister for Mineral Resources, Mr Macdonald had the authority and ability to act in furtherance of the conspiracy because of the Ministerial office he occupied. ^[26]

    24. R v Kane [1975] VR 658 in Savvas v R (No 2) (1991) 58 A Crim R 174 at 176. See also Raptis v R (1988) 36 A Crim R 362; Marie v R (1983) 13 A Crim R 440; Shepherd (No 2) v R (1988) 37 A Crim R 466 at 478.

    25. Savvas v The Queen at 7-9.

    26. Savvas v R (No 2) at 177.

37. Mr Neil did emphasise the importance of the Court maintaining the legal distinction between acts committed by the offenders in furtherance of the conspiracy and acts which proved the participation of each of them in that offence. Whilst that distinction was not always clear on the evidence, the Crown accepted that what Moses Obeid did in what was described as “the entrepreneurial phase”, ^[27] that is after 31 January 2009 through to 2012 when, on the Crown case, the agreement had been fully executed, should not be considered by the Court in informing the objective seriousness of the conspiracy. The Crown did, however, rely on Moses Obeid’s conduct at that time for the limited purpose of establishing, should there be any doubt about it, that he was not a passive recipient of information provided to him by Mr Macdonald in furtherance of the conspiracy but rather that he used that information proactively and for commercial ends. I propose to take that approach.

    27. Verdict judgment at [341], [1944].

The facts for sentencing purposes

43. The circumstances in which the conspiracy was forged and progressively executed over a period of months between May and September 2008 was the subject of extensive consideration in my verdict judgment.

44. While ordinarily the circumstances in which an offence is committed are set out by a sentencing court in its reasons for sentence, I do not propose to take that course in this case. Suffice to repeat that in finding the guilt of the offenders proved beyond reasonable doubt, I was satisfied that by no later than May 2008 they had each intentionally entered into an agreement with each other that, in his capacity as a Minister of the Crown, at that time holding the office of Minister for Mineral Resources, Mr Macdonald would deliberately breach his Ministerial duties and obligations of confidentiality and/or impartiality for the improper purpose of advancing the private financial interests of Edward Obeid and Moses Obeid and/or their family and/or their associates in connection with the granting of a coal exploration licence at Mount Penny.

45. In my verdict judgment I also addressed, and at some length, the various policy and fiscal imperatives that provided context to what the evidence revealed was Mr Macdonald’s enthusiasm, as the Minister for Mineral Resources, to exploit unallocated coal resources in New South Wales by the release of additional coal exploration areas under licence at the time the conspiracy was forged. ^[28]

    28. Verdict judgment at [448] and following, [734] and following.

46. The evidence at trial established that in 2008 and through to 2009, the global appetite for thermal coal and the potential for a government-supported coal mining sector to attract foreign investment in New South Wales were significant factors driving that policy approach. The Crown led evidence of the nature of the relationship Mr Macdonald had with senior officers of the Department of Primary Industries and his engagement with them in pursuit of achieving those policy objectives.

47. The Crown also led evidence of the statutory authority afforded the Minister for Mineral Resources in the granting of coal exploration licences under the Mining Act 1992 (NSW), the office occupied by Mr Macdonald at the time the conspiracy was forged and throughout the course of its execution.

48. Finally, I also set out at length in the verdict judgment the statutory scheme in the Mining Act which governed the granting of coal exploration licences in New South Wales and how the Coal Allocation Guidelines published by the Department of Primary Industries operated to guide the decisions made by the Department’s Coal Allocation Committee concerning the nomination of future coal exploration areas and the administrative processes undertaken by the Department to ensure public confidence in the allocation of coal exploration licences by a process of competitive tender overseen by an external probity auditor.

49. Although the Crown submitted at trial that Mr Macdonald took the opportunity in his legitimate dealings with the Department of “slipping in” the Mount Penny Coal Release Area to that competitive tender process,^[29] that submission was not relied upon by the Crown in support of its case on sentence as a factor illustrative of the extent of Mr Macdonald’s complicity as a co-conspirator. That being the case, I do not propose to deal further with it.

    29. Verdict judgment at [757].

50. None of the evidence to which I have referred was controversial. What was at issue in the trial was whether such acts of misconduct as the Crown was able to attribute to Mr Macdonald in connection with the granting of the exploration licence at Mount Penny were acts that the Crown was able to prove were committed by him for the improper purpose of advancing the financial interests of Edward Obeid, Moses Obeid or members of their family or associates, in the sense that were it not for that improper purpose Mr Macdonald would not have acted in that way. ^[30]

    30. Maitland v R; Macdonald v R [2019] NSWCCA 32.

51. In finding each of the first and second acts of misconduct proved (a finding of fact which was critical to proof of the existence of the conspiracy in the way the Crown particularised its case at trial), I rejected the case advanced by the accused that, as the responsible Minister, Mr Macdonald’s interest in acquiring information from the Department about the availability of coal reserves in the Bylong Valley near Mount Penny, and then pursuing with the Department the prospect of releasing the area it held under Exploration Licence 6676 to tender, was to be understood and explained consistently with Mr Macdonald’s legitimate pursuit of policy and fiscal imperatives associated with the promotion of coal exploration in New South Wales, and not for the improper purpose alleged by the Crown.

52. In proceeding to find the fourth, seventh and eighth acts of misconduct proved, I was also satisfied that the “but for” test for improper purpose was satisfied. The application of “but for” test in the context of finding those three acts of misconduct proved did not attract the same kind of controversy at trial. The matter in issue so far as those acts of misconduct were concerned was whether the Crown had established, as a fact, that Mr Macdonald disseminated confidential information in connection with the granting of an exploration licence at Mount Penny in breach of the duty of confidentiality, or that he otherwise acted in breach of his duty of impartiality in doing so, deliberately breaching the duties by which he was bound as a Minister of the Crown. I was satisfied he did.

53. I have taken the time to restate that aspect of my reasons for the verdict in order to address one of the submissions advanced by counsel for Mr Macdonald on sentence to the effect that the Crown’s failure to prove the fifth act of misconduct ameliorates, in a material way, the seriousness of the offence for which Mr Macdonald is to be sentenced.

54. Mr Martin submitted that by the Crown abandoning the third act of misconduct, and having failed to prove the fifth act of misconduct, the conspiracy was “a shell” of the conspiracy originally prosecuted by the Crown and a conspiracy of far less objective seriousness that was ascribed to it by the Crown in its sentencing submissions. That submission was allied with a submission advanced by counsel for each of the offenders that the very general terms upon which the agreement was reached, in effect an agreement that Mr Macdonald would do what he could to advance or promote the financial interests of his co-conspirators and/or their family and associates in connection with the granting of an exploration licence at Mount Penny if and when the opportunity presented, and the open-ended timeframe within which the offenders contemplated the object of their agreement might be achieved, had the effect of ameliorating what would otherwise be high level offending where, for example, specified acts of misconduct are proved to have been committed by a Minister of the Crown within a nominated timeframe or by a nominated date and where each act of misconduct is defined and directed to achieving a specific unlawful objective and for a specific improper purpose.

55. There can be no doubt that a defining feature of the conspiracy, reflected in the way in which the Crown framed the indictment and the way in which it particularised its case at trial, concerned the very general terms upon which the agreement the subject of the conspiracy was reached and the open-ended timeframe within which the offenders contemplated the object of their agreement might be achieved. In my reasoning to verdict, I was satisfied that those two interrelated features of the agreement reflected, in turn, two interrelated contextual facts that were in play at the time the agreement was reached.

56. The first contextual fact which I was satisfied dictated a degree of generality in the terms upon which it was agreed that Mr Macdonald would wilfully commit acts of misconduct in connection with the granting of a coal exploration licence at Mount Penny was that, as at May 2008, when I was satisfied the first act of misconduct was committed, no designated coal release area at or near Mount Penny in the Bylong Valley over which a coal exploration licence might be granted had been identified by the Department as a potential small to medium coal release area that might be included in an expression of interest process for release to market. As I made clear in my verdict judgment, I found as a fact that prior to Mr Macdonald making the focused enquiries of the Department in early May 2008 (the conduct the subject of the first and second acts of misconduct) Mount Penny was not a geographical feature with which the Department was familiar or a topographical marker of a potential coal deposit familiar to anyone in the Department.

57. A further contextual fact and one I am prepared to find for sentencing purposes is that each of the offenders knew and appreciated that as the Minister for Mineral Resources Mr Macdonald could exert influence over the Department to create a new coal release area at Mount Penny, even to the extent of issuing a direction to the Department that a new coal release area should be created, however, since there was no certainty at the time the agreement was reached that the exerting of influence over the Department in that way would achieve their shared unlawful objective, even less that any Ministerial direction to the Department would be a safe and sensible way of pursuing the unlawful object of the agreement, those specific matters were not comprehended by the agreement. Instead, the means of achieving the unlawful objective was left entirely to Mr Macdonald’s discretion.

58. The Crown submitted that despite the generality of the terms upon which it was agreed Mr Macdonald would commit wilful acts of misconduct, where the level of generality was dictated by the circumstances in which the agreement was forged and the time the agreement was forged, the improper purpose to which Mr Macdonald’s acts of misconduct were directed was clear and unambiguous from the outset. I accept the Crown’s analysis.

59. Each of the offenders submitted that the conspiracy alleged and proved in this case involved an agreement that was vague and lacking a specific goal and without any causal link to any harm the State and the people of New South Wales might suffer by the agreement being reached.

60. Those submissions understate entirely the matters which inform the objective seriousness of the conspiracy I found proved. The measure of objective seriousness is not limited to a quantification of loss or benefit in financial terms foregone by the State. I repeat for emphasis what I said in the verdict judgment:

By agreeing to act in wilful breach of his Ministerial duties and obligations in connection with granting of an EL at Mount Penny for the improper purpose of conferring an advantage on a cohort of private people, including the co-conspirators themselves, self-evidently denigrates the public objects which the Office of the Minister for Mineral Resources is designed to serve and the objects which Mr Macdonald was obliged to serve in the public interest. ^[31]

31. Verdict judgment at [2042].

61. I went on to say:

It is fundamental to our system of government that Ministers who occupy office as Members of the Executive Government are entrusted with powers, duties and responsibilities exclusively for the public benefit. That is not simply an arcane feature of the Westminster system as we have inherited it. The people of New South Wales are entitled to expect that, in the Office of a Minister in the Executive Government of New South Wales, consistent with the oath or affirmation that their elected representatives take when admitted to that Office, that he or she will act as a Minister of the Crown at all times conscientiously and honestly in the public interest. The very solemnity of that promise recognises that the exercise of Ministerial powers, duties and responsibilities in the public interest will be rendered nugatory if a Minister is motivated by personal interests or, as is the case here, where Mr Macdonald, in his capacity as Minister for Mineral Resources, agreed with another Member of Parliament and a member of that person’s family that he would deliberately breach his duties and obligations to advantage, favour or promote their personal financial interests. ^[32]

32. Verdict judgment at [2043].

62. A fact in issue at the trial, which was treated by me as indispensable to proof of the existence of the conspiracy and warranting emphasis for sentencing purposes,^[33] was whether the Crown was able to prove to the criminal standard that at the time the agreement was forged Mr Macdonald knew that the Obeid family owned Cherrydale Park, a large rural property in the Bylong Valley proximate to Mount Penny. By a process of reasoning by inference from a comprehensive body of evidence dealt with at length in the verdict judgment and not repeated here, I was satisfied of that fact. ^[34]

    33. Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56.

    34. Verdict judgment at [812].

63. Although it was no part of the Crown case at trial that Cherrydale Park was acquired by the Obeid family as an act in furtherance of the conspiracy, or even that the property was purchased in contemplation of entering into an unlawful agreement with Mr Macdonald of the scope and object alleged, I was ultimately satisfied that the evidence established that for some months before 9 May 2008 (by which date I was satisfied the conspiracy had been forged) and at a time when Moses Obeid and Edward Obeid (and likely other members of the Obeid family) had learnt of the existence or likely existence of coal resources underlying Cherrydale Park by legitimate searches of the public record, their interest in exploring the potential to exploit those coal resources was stimulated and eventually overtook any interest in the agricultural value of Cherrydale Park. I was also satisfied that it was Edward Obeid and Moses Obeid’s keenness to acquire more detailed and reliable information about the volume of those coal reserves that motivated each of them to enter into the agreement with Mr Macdonald that he would misconduct himself in connection with the granting of a coal exploration licence at Mount Penny in order to promote or advance their financial interests, and that the agreement which was progressively executed by Mr Macdonald by committing successive acts of misconduct, developed to include the prospect of the Obeid family pursuing a joint venture with a mining company who might wish to apply for that licence. ^[35] That state of affairs also informs the objective seriousness of the conspiracy and, more particularly, the criminal culpability of the offenders.

    35. Verdict judgment at [1700] and following.

64. Another fact integral to finding the guilt of the offenders proved beyond reasonable doubt and a fact relevant to an assessment of the objective seriousness of the conspiracy and their criminal culpability is reflected in my finding that each of the offenders knew when they entered into the agreement of the existence and scope of the duties and obligations of confidentiality and impartiality Mr Macdonald was subject to in the discharge of the public office he held as the Minister for Mineral Resources. The scope and content of Mr Macdonald’s duties and their provenance within the Ministerial Code of Conduct was discussed at length in the verdict judgment. ^[36]

    36. Verdict judgment at [211].

65. For sentencing purposes, it suffices to restate the Code in part.

66. As the words of the preamble to the Code of Conduct make plain:

It is essential for the maintenance of public confidence in the integrity of the Executive Government of the State that Ministers of the Crown exhibit, and be seen to exhibit, the highest standards of probity in the exercise of their offices, and that they pursue, and be seen to pursue, the best interests of the people of New South Wales to the exclusion of any other interest.

67. The two principles which are identified as guiding Ministerial conduct are stated as follows:

1. Ministers will perform their duties impartially, disinterestingly [sic] and in the best interests of the people of New South Wales.

2. Ministers will be frank and honest in official dealings with their colleagues and will maintain the confidentiality of information committed to their secrecy.

(Emphasis added.)

68. The duty of confidentiality finds further expression as follows:

4.2 A Minister shall not use information obtained in office to gain a direct or indirect private advantage for himself or herself, or for any other person.

69. Finally, and for emphasis, the Code of Conduct includes the following:

Ministers are reminded that, quite apart from their ethical obligations they are subject to the civil and criminal law as holders of public office. In particular they are reminded that they can be held personally responsible in law for (a) their intentional misuse of their office and the powers and duties they have in it; (b) conflicts of interests and the possession of interests which will disqualify them from parliamentary office; (c) the corrupt receipt or solicitation of benefits; and (d) the misuse of confidential information acquired by virtue of office.

70. It was not in dispute at trial that Mr Macdonald and Edward Obeid were fully aware at all times of the scope and import of the Ministerial Code of Conduct and the content of the dual duties of confidentiality and impartiality which find expression in it.

71. Mr Macdonald did not challenge the fact that he had sworn an oath to be bound by the duties imposed on a Minister of the Crown under the Code.

72. Given the public offices Edward Obeid had previously held both as the Minister for Mineral Resources and the Minister for Fisheries, and by reason of the time he served as a Member of Parliament more generally, including during the currency of the conspiracy, it was not in dispute at trial that he was aware of the legal obligations by which Mr Macdonald was bound at the time the conspiracy was forged.

73. I also found as a fact that Moses Obeid also knew that Mr Macdonald was bound by the dual duties of confidentiality and impartiality as a Minister, including their scope and import, at the time he entered into an agreement with Mr Macdonald that he would deliberately act in breach of them for the improper purpose alleged.

74. I came to that conclusion not only because of the close relationship Moses Obeid enjoyed with his father and the length of his father’s Parliamentary and Ministerial career, but also by the nature of the information that was progressively disseminated to him by Mr Macdonald during the currency of the conspiracy and its temporal coincidence with the steps he took to monetise the value of that information in his commercial dealings with Mr Brook and Mr Fang from mid-2008, and ultimately in his contractual dealings with Monaro Mining NL from that date.

75. Those dealings were designed to strategically position the Obeid family in a joint arrangement with a mining company before the public launch of the expression of interest tender process in September 2008, a process which, by that date, included the Mount Penny Coal Release Area, a newly created coal release area which encompassed Cherrydale Park which was included with Mr Macdonald’s sanction as Minister and which I was satisfied was designated for release by the Department at his “strong suggestion”. ^[37]

    37. Verdict judgment at [981].

76. In the result, I am satisfied that the agreement that Mr Macdonald would commit unspecified acts of misconduct in public office for the improper purpose alleged, an agreement which was by its terms criminal and which I was satisfied each of the accused knew to be so, depended for its success on clandestine steps being taken by Mr Macdonald under cover of his pursuit of legitimate policy outcomes and driven by legitimate policy imperatives, to manoeuvre the Department into designating a new coal release area in an area of the Bylong Valley where he knew the Obeids owned a rural property and where he knew they were keen to exploit the value of that resource.

77. I am satisfied, for that complex of reasons, the objective seriousness of the conspiracy was of the highest order.

The criminal culpability of the Obeids and the question of motive

78. Considerations of what motivated each of the offenders to enter into the conspiracy^[38] bears most directly upon an assessment of their criminal culpability.

    38. It is noted that in reasoning to verdict the Court held that the question of motive was ultimately of little relevance to proof of the offence: Verdict Judgment [373], footnote 232 and [1896].

79. It is clear beyond question that each of Edward Obeid and Moses Obeid was motivated to enter into the conspiracy in pursuit of exploiting the value of the coal resource they had learnt underlay Cherrydale Park.

80. Their financial motives are patent not only from the terms of the agreement, but also what Moses Obeid did to maximise the advantage generated from Mr Macdonald misconducting himself in the specific ways the Crown succeeded in proving in the way the fourth, seventh and eighth acts of misconduct were particularised, and in the way the other information I was satisfied Mr Macdonald provided to his co-conspirators from time to time as the prospect of Cherrydale Park being designated as a new coal release area developed in Mr Macdonald’s dealings with the Department from June 2008. While neither Edward Obeid nor Moses Obeid could have known, when the conspiratorial agreement was struck, what would be the actual value to them of Mr Macdonald committing misconduct in the office he occupied which I found proved, and the value of his other conduct in furnishing them with valuable inside information of the kind I have described, at the time the agreement was forged Edward Obeid and Moses Obeid were patently motivated by a desire to maximise the financial benefit to them and their family in exploiting the value of the coal underlying Cherrydale Park.

81. In relation to Mr Macdonald, no financial benefit has been shown to have accrued to him for his agreement to wilfully breach his Ministerial duties and obligations; neither is there any evidence of any collateral advantage of any kind, or of any promise of an advantage of any kind that might explain why he agreed to act as he did. ^[39] While Mr Macdonald’s motives may have included the repayment of a debt of gratitude to Edward Obeid for his political patronage over the years, as well as financial pressures operative upon him at the relevant time and the hope of receiving a financial benefit at a later time, I am unable to reach that finding beyond reasonable doubt. The fact that no evidence of motive is discernible does not mitigate the extreme gravity of his criminal culpability as a co-conspirator. It is obvious beyond doubt that without Mr Macdonald’s agreement that he would wilfully misconduct himself as the Minister for Mineral Resources there would have been no conspiracy.

    39. Verdict Judgment at [436].

The application of the parity principle

82. Although the Crown submitted that the criminal culpability of each of the offenders as participants in an offence would be reflected in the term of imprisonment I would impose upon each of them, the Crown also acknowledged that parity principles, to which I have referred earlier, would also have application in this sentencing exercise.

83. The Crown submitted it was open to me to differentiate between the length of the sentences to be imposed on Edward Obeid and Moses Obeid relative to the sentence to be imposed on Mr Macdonald in order to reflect what was, in the Crown’s submission, the indispensable role Mr Macdonald agreed to perform as the Minister for Mineral Resources in the execution of the conspiracy and what I found was his pivotal role in its execution.

84. Although, as I have noted now on multiple occasions, the specific nature and number of the acts of misconduct Mr Macdonald agreed to commit were not the subject of specific agreement at the time the conspiracy was forged, and although the duration of the conspiracy was limited only by reference to the progressive achievement of the unlawful objective, I accept the Crown’s submission that the agreement contemplated that Mr Macdonald would commit acts of misconduct for the improper purpose alleged as and when the opportunity presented, and that he agreed to wilfully misconduct himself as a Minister of the Crown on those terms, was a distinct feature of his offending as a co-conspirator and a feature which should attract a lengthy period of imprisonment in order to meet the multiple principles of sentencing in his case.

85. Mr Macdonald’s criminal culpability was not limited to him committing the five acts of misconduct I found proved. It included what I was satisfied was his sharing of critical information about the creation of the Mount Penny Coal Release Area and its inclusion in a pending expression of interest tender process, information he had acquired in his dealings with the Department in June 2008 as the Mount Penny Coal Release Area was under the close consideration of the Department.

86. That entire course of conduct necessarily informs my assessment of Mr Macdonald’s culpability as a Minister of the Crown in agreeing with each of his co-offenders that he would commit acts of misconduct in the public office he held for their benefit or the benefit of those associated with them as high.

87. The Crown further submitted that in assessing the relative culpability of Edward Obeid and Moses Obeid in accordance with parity principles, it was open to me to impose a lesser sentence of imprisonment on Moses Obeid relative to his father. In the Crown’s submission, for Edward Obeid to have entered into an agreement that Mr Macdonald would commit acts of misconduct as a Minister of the Crown for the improper purpose of advancing the financial interests of his co-conspirators and/or their family and associates at a time when he was also a sitting Member of the New South Wales Parliament, is to be contrasted with the position of Moses Obeid relative to both of his co-conspirators.

88. Although by intentionally entering into the agreement with his father and with Mr Macdonald (a person with whom I was satisfied he had a personal friendship), I am satisfied that Moses Obeid was enthusiastic, to say the least, about the potential that by Mr Macdonald breaching his Ministerial duties and obligations in connection with the granting of an exploration licence at Mount Penny he and his family would benefit financially, it is important to emphasise that unlike each of his co-conspirators, Moses Obeid did not occupy any public office either at the time of the agreement or in the role he played in execution of it. While I have found that he was motivated by the prospect of his family securing a very significant financial return by Mr Macdonald breaching his Ministerial duties of impartiality and confidentiality on multiple occasions, his receipt and commercial use of that information did not constitute a breach of public trust.

89. In the Crown’s submission, despite Moses Obeid actively, indeed proactively, seeking to exploit the value of Mr Macdonald’s successive acts of misconduct for the benefit of his family, and succeeding in varying degrees through the structured commercial arrangements first with Monaro Mining NL during the currency of the conspiracy made possible by Mr Macdonald’s commission of the fourth and seventh acts of misconduct, and despite, by contrast, Edward Obeid’s participation in the conspiracy being less overt when compared with Moses Obeid (at least in so far as was revealed by the evidence at trial) Edward Obeid’s criminal culpability as a co-conspirator was more egregious because of who he was when he entered the conspiracy.

90. Ms Francis submitted that because what she described as the broadly conceptualised conspiracy was executed at Mr Macdonald’s sole discretion, and where there is no evidence capable of satisfying me to the criminal standard that Edward Obeid encouraged Mr Macdonald to commit any specific acts of misconduct in furtherance of it, his culpability relative to his co-conspirators as a co-conspirator should be appointed at the lower end of the range. I am not persuaded of that submission.

91. Although it was no part of the Crown case at trial that Edward Obeid acted in breach of the Parliamentary Code of Conduct by which he was bound at the time the agreement was forged in May 2008 or at any time throughout the process of its execution through to 31 January 2009, I am satisfied that his status as a Member of the New South Wales Parliament when he conspired with Mr Macdonald as his parliamentary colleague of long-standing that in his position as a Minister of the Crown he would breach the Ministerial Code of Conduct in multiple ways and unlimited respects for the improper purpose of advancing the financial interests of the family of which he was the patriarchal head, is in my view to colour Edward Obeid’s criminality for sentencing purposes with a different hue to that of his son.

92. In making that finding I am also prepared to find as a fact, and to the criminal standard, that in entering into the conspiracy with his son, Edward Obeid expected him to pursue the prospect of exploiting the coal reserves which they knew or believed lay under Cherrydale Park on behalf of the family. I am also prepared to find as a fact and beyond reasonable doubt that during the currency of the conspiracy Edward Obeid actively encouraged Moses Obeid to monetise the prospective financial gain as it materialised and that he was in fact consulted as those prospects materialised in the course of his son’s various commercial dealings.

93. In making those factual findings I am not seeking to minimise Moses Obeid’s criminal culpability. I do, however, propose to reflect in the sentences imposed upon Moses Obeid and Edward Obeid what I consider to be material differences in their criminal culpability by reason of who they were at the time of the execution of the agreement and throughout its currency, as distinct from measuring Moses Obeid’s criminal culpability solely, or even directly, referable to the acts he performed as a conspirator exercising his skill and acumen as a businessman, albeit for criminal purposes.

94. Despite the Crown accepting that Moses Obeid’s culpability was to be contrasted with the gravity of Mr Macdonald’s offending as a Minister of the Crown and his father’s offending given his status at all relevant times as a Member of the New South Wales Parliament, and although the Crown also acknowledged and accepted Moses Obeid’s entitlement to rely upon his prior good character as a factor in mitigation of sentence, the Crown maintained the submission that nothing other than a sentence of full-time imprisonment in excess of two years was an appropriate sentencing outcome for Moses Obeid.

95. Before turning to consider the circumstances personal to each of the offenders, I should address the effluxion of time between the commission of the offence and today’s sentencing proceedings and whether that impacts on sentencing in any material way.

The question of delay

96. Ms Francis did not advance the submission that delay operates as a mitigating factor in the sentence to be imposed on Edward Obeid.

97. Mr Neil submitted that the delay of nine years between May to September 2008 (when I was satisfied the conspiracy was forged and in the process of execution) and the filing of an indictment in this Court in October 2017, and then a delay of four years before verdicts were delivered in July 2021, has been productive of an uncertain suspense for Moses Obeid which should attract weight as a factor in mitigation of his sentence. ^[40] Mr Martin adopted those submissions claiming the same impact on Mr Macdonald in mitigation of his sentence.

    40. Coles v R [2016] NSWCCA 32 at [15]-[29].

98. While recognising that the issue of delay is frequently given less prominence in trials of “white collar” offences which are notoriously difficult to detect and successfully prosecute, Mr Neil submitted that the uncertain suspense Moses Obeid has been subjected to in the progress of the matter through to sentence today, a state of suspense heightened by the intervening and protracted ICAC investigation, is a factor to be afforded some weight in mitigation of sentence.

96. The Crown relied upon affidavit sworn by Mr Tim Fox, the officer in charge of the ICAC investigation, in which he deposed to the time-intensive tasks involved in obtaining and reviewing documents and examining individuals in connection with a large number of complex interrelated events and transactions undertaken as part of ICAC’s investigative function under the ICAC Act into the allegations of corrupt conduct by Edward Obeid and Mr Macdonald and other individuals associated with the granting of coal exploration licences launched as Operations Jasper and Acacia. ^[41] I accept that the same level of complexity obviously impacted the lapse of time between the ODPP receiving the initial brief of evidence from ICAC by mid-2014, following the publication of the Commission’s report in July 2013, and criminal charges being laid in July 2015, as it did the procedural path of the trial in this Court through to verdict. An interruption to the trial for some months in 2020 due to the global COVID-19 pandemic also resulted in an unavoidable delay.

    41. Investigation into the conduct of Ian Macdonald, John Maitland and others; Investigation into the conduct of Ian Macdonald, Edward Obeid Senior, Moses Obeid and others.

97. As the authorities make clear, it is not every case where there has been a delay, sometimes of many years, in the prosecution of an offender that will result in the amelioration of sentence when that offender is ultimately prosecuted and convicted. Each case depends upon its own particular facts.

98. Although I accept that Moses Obeid was in an increasing state of uncertainty as to whether criminal proceedings would be initiated after the ICAC report was furnished in July 2013 and then, after criminal proceedings were commenced, how those proceedings would ultimately resolve, I am not persuaded that in the circumstances of this case there is delay of a kind which should operate in mitigation of his sentence or in mitigation of Mr Macdonald’s sentence.

99. That is not to say that the lengthy course of the investigation and the related criminal proceedings have not negatively impacted on Moses Obeid in other ways which are deserving of some mitigating weight in the ultimate appointment of his sentence.

100. The extent to which a sentencing Court ought to take into account the impact on an offender of adverse publicity and public humiliation in a protracted investigation culminating in a criminal prosecution was addressed by Beech-Jones J in Obeid (No 12) at [99]-[102]. In short, it may be considered only where adverse media attention reaches such proportion as to have a physical or psychological effect on the offender. ^[42]

     42. Obeid (No 12) at [102] citing Duncan v R [2012] NSWCCA 78 at [28] per Basten JA (citing Kenny v R [2010] NSWCCA 6 at [49] per Howie J); see also R v Nuttall (2011) 209 A Crim R 538; [2011] QCA 120 at [65]). At first instance in R v Einfeld [2009] NSWSC 119 at [161] per James J, the relevant publicity was found to have that effect).

101. The Crown accepted that has been demonstrated in the evidence tendered by Mr Neil on Moses Obeid’s behalf. That concession was properly made. There is no evidence of a comparable kind adduced on behalf of Edward Obeid or Mr Macdonald.

102. I propose to deal first with the evidence adduced on behalf of Moses Obeid which bears on that aspect of his subjective circumstances in the context of his subjective circumstances generally, before turning to separately consider the evidence adduced by Mr Macdonald and Edward Obeid as to their personal and subjective circumstances and in that order.

103. However, before turning to that body of evidence, the impact on each of the offenders of the recent outbreak of the Delta variant of COVID-19 in correctional centres in New South Wales needs to be addressed.

The state of the COVID-19 outbreak in correctional facilities

107. The relevance of the recent outbreak of the Delta variant of COVID-19 in various correctional centres in New South Wales for sentencing purposes was addressed by the Crown and counsel for the offenders in the sentence hearing and was supported by the tender of evidence in various forms.

108. The Crown read an affidavit affirmed by Ms Graylin, solicitor, on 1 September 2021 to which she annexed various media reports which dealt with the issue together with publicly available information on the websites of CSNSW current as at 19 August 2021 ^[43] and the Bar Association of New South Wales current as at 31 August 2021.

     43. An updated version of that information dated 15 September 2021 was later provided by the Crown, as to which see below.

109. At the conclusion of the sentence hearing, I expressed my concern that although the evidence tendered on sentence bearing upon the fact and extent of the COVID-19 outbreak in New South Wales correctional facilities and the institutional responses and dedicated processes implemented to manage that outbreak was current as at the date of the sentence hearing on 10 September 2021, in the event that situation altered materially whilst my sentencing judgment was reserved I should be provided with updated information by the Crown, preferably with the consent of the offenders. ^[44]

     44. T 142.

110. Since that date, information pertaining to the COVID-19 outbreak was compiled by the parties and provided to my chambers. That information comprised an updated version of the CSNSW website publication annexed to Ms Graylin’s affidavit dated 15 September 2021 and last updated on 5 October 2021; a transcript of evidence given by Ms Wendy Hoey, Executive Director Clinical Operations, Justice Health, and Mr Kevin Corcoran, Acting Commissioner CSNSW, on 17 September 2021 before the New South Wales Public Accountability Committee’s public inquiry into the pandemic; further media articles dated variously between 7 and 28 September 2021; and email correspondence between Ms Graylin and each of Mr Peter Sharp, Manager AV, Strategy and Business Links Corrections Strategy and Policy, CSNSW, Ms Rachel MacFarlane, Incident Controller, St Vincent’s Correctional Health, Mr Jeremy Tucker, CSNSW, Ms Wendy Hoey, Justice Health New South Wales, and Ms Helen Hong, Principal Council Officer, Committees, Parliament of New South Wales.

111. What follows is an analysis of the full complement of evidence tendered on sentence as it relates to the current state of affairs in correctional centres in New South Wales.

112. A state-wide lockdown of all New South Wales correctional centres and of indefinite duration commenced on 30 August 2021 in response to the outbreak of COVID-19 in the prison population at Parklea. The lockdown was designed to identify those prisoners who had been transferred from Parklea to other correctional centres, and to isolate those prisoners who returned a positive result from a screening test, with a view to preventing the further spread of the virus.

113. As at 17 September 2021, 325 positive cases of COVID-19 had been identified among inmates in correctional centres in New South Wales.

114. As at 2 September 2021, the following correctional centres had been cleared to return to normal operations:

1. Junee

2. Kirkconnell

3. Shortland

4. Silverwater Women’s Correctional Centre

5. Dawn De Loas

6. Dillwynia

7. Lithgow

8. Metropolitan Remand and Reception Centre (MRRC)

9. Cessnock

10. Cooma

11. Geoffrey Pearce

12. Goulburn

13. Compulsory Drug Treatment Correctional Centre

14. Clarence

15. Emu Plains

16. Glen Innes

17. High Risk Management Correctional Centre

18. Tamworth

19. John Morony

20. Mid North Coast

21. South Coast

22. St Heliers

23. Hunter

24. Macquarie

25. Mannus

26. Mary Wafe

27. Long Bay Special Purpose Centre

115. By 15 September 2021, only three correctional centres in New South Wales were managing positive COVID-19 cases: MRRC and Silverwater Women’s Correctional Centre, being two of the facilities previously cleared for return to normal operations, and Parklea Correctional Centre, where the outbreak had commenced. As at 17 September 2021, there were 94 positive cases at MRRC, 6 positive cases at Silverwater Women’s Correctional Centre, and 85 positive cases at Parklea. As at 11 October 2021, the number of positive cases at Parklea had reduced to 2. As at 15 October 2021, there were 27 positive cases at MRRC and 1 positive case at Silverwater Women’s Correctional Centre.

116. Mr Martin tendered a document titled “Report on COVID-19 and the Impact on New South Wales Prisoners” prepared by the Kirby Institute, a medical research organisation affiliated with the University of New South Wales, dated 16 April 2020 (the Kirby Institute Report) ^[45] together with a chapter of the Bugmy Bar Book titled “COVID-19: Risks and Impacts for Prisoners and Communities” prepared by the New South Wales Public Defenders Office dated 17 August 2021 (the Bugmy Bar Book). ^[46] The Kirby Institute Report was updated on 9 September 2021. The Bugmy Bar Book was updated on 20 September 2021. I refer to the updated versions of those publications in the following analysis.

     45. Exhibit 21.

     46. Exhibit 22.

117. The Kirby Institute Report identified hypertension, cardiovascular disease, diabetes, cancer, immunosuppression and chronic respiratory diseases as increasing “the risk of an individual contracting, suffering severe symptoms, and dying from COVID-19”. ^[47] Consistent with the prevailing advice from New South Wales Health as to the risks of community transmission of the highly contagious and virulent Delta variant, the rate of infection, the severity of symptoms, including leading to death where infection occurs, for inmates in a correctional facility is related to the age of an inmate, with older inmates being at a higher risk of both contracting the virus and death.

     47. Exhibit 21 p 6.

118. The authors of the Report made the following prescient assessment:

[Due to] the higher transmissibility and severity of the Delta variant, and the continuous movement of prison staff and detained persons between prisons and their communities, the risk of any potential index case entering a correctional centre is very high and will remain so until community transmission reduces significantly and community cluster outbreaks are absent.

119. The authors of the Report made the following recommendation obviously addressed to CSNSW:

Given the current threat that COVID-19 presents to places of detention and the wider community, and alongside standard plans to improve prison hygiene, screening, testing and the isolation of sick people in adequate spaces, decarceration strategies ought to be prioritised as a mechanism to reduce cell spatial density thereby reducing the risk of infectious diseases transmission. ^[48]

48. Exhibit 21 p 12.

120. The Bugmy Bar Book notes the increased vulnerability of inmates with premorbid chronic health conditions and inmates of advanced age contracting the virus and suffering severe symptoms, with both groups overrepresented in prison communities. The authors endorsed the views expressed in the Kirby Institute Report that the spread of infectious diseases in custodial environments can occur at a greater rate than in the general community due to overcrowding, poor hygiene and lack of ventilation.

121. The Bugmy Bar Book also observed the negative impact on the mental and physical health of inmates of lockdown measures and changed conditions of detention, with inmates subject to lengthier periods confined to their cells, limiting opportunities for exercise, fresh air, and social engagement both with other inmates and with family and friends. It referred to an article by Professor Thalia Anthony, Senior Lecturer in criminal justice at the University of Technology Sydney, of 26 March 2020 in which she noted that prisons have become increasingly unsafe environments due to an increase in unrest related to COVID-19 restrictions and prisoners’ generalised anxiety about contracting the disease.

Institutional responses to COVID-19 in custodial environments in New South Wales

122. Ms Graylin also annexed to her affidavit correspondence of 21 July and 30-31 August 2021 with Jeremy Tucker, Director of Correctional Strategy and Executive Services at CSNSW.

123. In his email to Ms Graylin dated 31 August 2021, Mr Tucker confirmed that CSNSW, through the coordination of the CSNSW Coronavirus Command Post established in March 2020, was “taking every precaution to protect staff and inmates, and prevent transmission of the virus”.

124. He outlined the protocol for the reception of new inmates as follows:

All CSNSW staff working with fresh reception inmates are required to correctly apply and wear PPE at all times. This includes gloves, full sleeve gown, eye wear and KN 95 mask. All new inmates undergo mandatory quarantine for a period of 14 days. On completion of the 14 day quarantine period and two negative test results, the medical provider assesses and clears the inmate to move to an appropriate location.

CSNSW protocols mean that any inmate, including new reception inmates who have cold/flu like symptoms or had close contact with a person diagnosed with or suspected of being exposed to COVID-19, is placed in isolation. These inmates are placed in a cell, in a designated area within a court location or correctional centre, and referred to the Justice Health and Forensic Mental Health Network or private health provider for assessment. Inmates return to general population once they are cleared by the health provider. (Emphasis added.)

125. Mr Tucker’s reference to the isolation of new inmates with “cold/flu like symptoms” or close contacts of those who are either confirmed or suspected COVID-19 as vectors of the virus appears to be an additional measure to the housing of all new inmates for the two week isolation period in a cell with one other inmate.

126. Mr Tucker’s advice was reflected in the CSNSW website information also annexed to Ms Graylin’s affidavit and the updated publication dated 15 September 2021 which was filed on 8 October 2021. According to that publication, CSNSW and Justice Health accept an ongoing responsibility to identify and monitor those inmates particularly vulnerable to contracting COVID-19 including inmates with chronic illnesses or other premorbid conditions and inmates of advanced age. The updated publication also noted that “to reduce further risk, CSNSW has introduced a 7-day staging process that will ensure inmates transferred from reception centres in metropolitan Sydney are quarantined from the main population in a regional facility for 7-days with a test on day 5 prior to being cleared to join the main population”. In his testimony before the New South Wales Public Accountability Committee’s public inquiry on 17 September 2021, Mr Corcoran clarified that prisoners who were transferred from metropolitan reception and remand centres to regional correctional facilities were subject to 21 days total quarantine. Ms Hoey confirmed that inmates were tested for COVID-19 on the first and twelfth days of the initial 14 day quarantine period.

127. There was limited evidence as to whether new inmates might be housed in a correctional facility which had been “cleared” of COVID-19 for the duration of their initial two week quarantine upon entering custody. In his testimony, Mr Corcoran described MRRC (together with Silverwater Women’s Correctional Centre) as the “sole repository of all the metropolitan quarantine and isolation”. In her testimony, Ms Hoey explained that as soon as a positive case is identified in a correctional facility anywhere in the State, that person is transferred to a designated COVID-19 hub at either MRRC, Silverwater Women’s or Cobham Youth Justice Centre, in order that appropriate care can be provided, including transfer to a hospital should that be necessary.

128. In that connection Mr Tucker also explained the protocol for managing inmates who have tested positive to COVID-19 as follows:

Isolation hubs have been established to manage inmates confirmed COVID-19 positive. They are staffed by trained officers and are contained environments where inmates can be safely and securely managed with minimal inmate movement and limited direct contact with CSNSW staff. Strict protocols are in place for the management and transport of any COVID-19 positive inmate. CSNSW ensures that inmates have access to services including AVL services for continued contact with family and friends. CSNSW has established a field hospital at the Metropolitan Reception and Remand Centre for COVID-19 positive inmates who become acutely unwell. CSNSW has formal protocols in place for the identification of and managing any case of a positive COVID-19 staff member or visitor to a correctional centre.

129. It follows from the preceding analysis that notwithstanding the incidence of positive cases detected at MRRC, as was the case at least as recently as 15 October 2021, new inmates will continue to be received into that facility and will not be diverted elsewhere. It seems to me from those arrangements that the greater risk, as assessed by CSNSW and Justice Health, is that posed by new inmates who are COVID-19 positive upon reception into custody, rather than the risk posed to newly received inmates by existing prisoners who are COVID-19 positive.

130. Mr Tucker also advised that in-person social visits, external leave programs, custody-based employment programs, and third party and non-essential visitor entry to correctional centres remain suspended as of 31 August 2021. Again, that information was confirmed as current and continuing in the updated CSNSW website publication of 15 September 2021. Other measures which the CSNSW website indicates are being implemented to address the current situation include replacing in person visits with video visits and screening and temperature checks of all those who enter correctional facilities including staff.

131. Mr Tucker also advised that Justice Health was responsible for the ongoing vaccination program in correctional facilities and that CSNSW would continue to follow the expert advice of New South Wales Health and the Justice Health and Forensic Mental Health Network in their decision-making processes. In her testimony on 17 September 2021, Ms Hoey confirmed that as at that date 35.6 per cent of the adult prison population in New South Wales was fully vaccinated for COVID-19, having received two doses of either the AstraZeneca or Pfizer vaccine. Ms Hoey indicated that 70 per cent of inmates had received one dose of one or other of those vaccines, and that she expected 70 per cent of inmates to be fully vaccinated “in a couple of weeks”.

132. Finally, the Crown tendered a document prepared by Justice Health titled “Justice Health and Forensic Mental Health Network Overview of Services” dated October 2020. ^[49] That document provides that Population Health, a team within Justice Health, has state-wide responsibility for coordinating the management of the COVID-19 pandemic and providing expert advice to CSNSW regarding the management of patients and staff diagnosed with, or at risk of contracting, the virus.

The health of the offenders and their vulnerability to contracting COVID-19

49. Exhibit D.

Mr Macdonald

133. Only some aspects of Mr Macdonald’s current health profile are relevant to an assessment of both his vulnerability to contracting COVID-19 upon admission to custody (in circumstances where he has not received a second dose of the AstraZeneca vaccine or before the full efficacy of his second dose is achieved) and an assessment of the likely sequelae were he to contract the virus.

134. Mr Macdonald was administered the first dose of the AstraZeneca COVID-19 vaccine on 19 August 2021. ^[50] Mr Martin submitted that conflicting medical advice, together with shortages of General Practitioner appointments in the Blue Mountains where Mr Macdonald has resided under conditional bail since his conviction, explained the delay in his receiving the first dose of the AstraZeneca vaccine some months after he became eligible to receive it.

     50. Exhibit 1D.

241. Dr Reutens also noted Mr Obeid’s increasing physical frailty, with associated poor balance, visual impairment and the need for supervision during dressing and showering due to risk of suffering a fall.

242. Mr Obeid suffers from a number of ophthalmic conditions including macular degeneration, a cataract in the left eye and a concentration of diabetic cystoid macular oedema in the right eye. ^[126] During his incarceration at a correctional facility in Bathurst, he underwent right cataract surgery. He also developed diabetic retinopathy whilst a serving prisoner. He was given monthly intravitreal injections for approximately the last 12 to 15 months of his imprisonment. Edward Obeid is still receiving those injections on an “ongoing” basis. ^[127] These conditions make reading difficult. ^[128]

     126. Exhibit 3I; Exhibit 3D.

     127. Exhibit 3I.

     128. Exhibit 3A.

243. A wide range of medications have been prescribed to manage Mr Obeid’s numerous health conditions. ^[129] His oral medications are administered from a Webster pack. He reported to Dr Reutens that his wife and daughter monitor his medicinal schedule. ^[130]

     129. Exhibit 3B.

     130. Exhibit 3A.

244. Dr Reutens’ experience as a psychiatrist who has worked in the custodial system with a particular focus on older inmates is insightful. I quote her views in full for that reason:

Older people experience hardships in prison that are greater than those of younger prisoners. In my experience as an old age psychiatrist who has worked in the custodial setting, older people have fewer peers and are therefore more lonely in prison. They are vulnerable to being stood over by virtue of their physical frailty, and Mr Obeid would be at particular risk of injury if assaulted given his balance problems and age. Younger prisoners often occupy their time by exercising or prison employment, which Mr Obeid would be unable to avail himself of because of his physical impairments. He could not occupy himself by reading because of his vision impairment.

Older prisoners face the realistic possibility that they could die in prison, and this is a prominent concern of Mr Obeid’s who is conscious of the risk of contracting COVID-19 in the institutional setting. These added concerns of ill health, vulnerability and the possibility of death, coupled with the anxiety disorder, frailty and mild neurocognitive impairments are likely to make incarceration a greater burden for Mr Obeid compared to the average prisoner.

While he is generally independent, he reports requiring supervision during dressing and showering because of his risk of falls. Formal nursing supervision would only be available in a metropolitan jail such as Long Bay Correctional Centre, which has a unit for older prisoners. However, this unit is in a maximum security setting, and this would result in increased hardship for Mr Obeid, who reported being classified as suitable for a minimum security setting during his last incarceration. It is also not possible to predict if he will be able to be accommodated in such a unit because placement depends on an assessment, the length of the waitlist, and whether there are available beds.

If Mr Obeid is to receive a custodial sentence I recommend the follow:

1. That he be assessed to determine if he requires supervised medication.

2. That he is referred to a GP in the custodial setting who can coordinate his care and refer him to the Aged Care service and Disability services.

3. The dose of the antidepressant medication mirtazapine is an initiation dose and should be increased to 30 mg nocte. ^[131]

131. Exhibit 3.

250. I strongly recommend Mr Obeid be assessed as a sentenced prisoner informer by Dr Reutens’ considered professional opinion which was not challenged by the Crown.

The Crown’s generalised response to the evidence adduced by the offenders

251. The Crown tendered a New South Wales Health publication titled “Justice Health and Forensic Mental Health Network Overview of Services” dated October 2021 ^[132] and a letter from Peter Severin, Commissioner of Corrective Services, dated 26 July 2019 prepared at a time in the pre-trial phase when Mr Obeid’s health as a serving prisoner was an issue.

     132. Exhibit D

252. This evidence was tendered to address the systems that are available to manage and address the complex of health concerns of each of the three offenders as sentenced prisoners. ^[133]

     133. Exhibit E.

253. The Health Network Overview of Services publication explains that the Justice Health and Forensic Mental Health Network (the Health Network) is part of New South Wales Health and is responsible for providing health care to prisoners within the New South Wales correctional system. It provides that an interdisciplinary team of doctors, nurses, psychiatrists and allied health staff is available to inmates in correctional facilities.

254. In addition to the screening procedures currently in place due to the COVID-19 pandemic addressed elsewhere in these sentencing remarks, the same publication provides that new inmates are subject to a Reception Screening Assessment on reception and, as appropriate, the administration of a Chronic Disease Screen to plan and provide for the ongoing care of identified medical conditions. Thereafter, what is described as an Integrated Care Service is responsible for monitoring an inmate’s chronic and complex health conditions. A Chronic Case Clinical Pathways Service is also designed to work with the Integrated Care Service to provide care to those inmates identified as suffering from a chronic disease by coordinating multidisciplinary care and the ongoing assessment of an inmate to ensure against the risk of an inmate’s medical conditions being exacerbated in the custodial setting.

255. Internal and external medical appointments are coordinated by the Medical Appointments Unit, including liaising with hospitals to schedule surgery, including elective surgery, and specialist treatment where that is warranted.

256. The mental health of all adult inmates is the responsibility of the Custodial Mental Health Service. Specialised mental health units are available in various correctional facilities.

257. The Aged Care and Rehabilitation Unit at Long Bay Hospital provides specialised care, assessment and rehabilitation services for inmates who are of an advanced age. Admission to the Unit is determined by the Aged Care Bed Demand Committee and is subject to availability. There are a total of 15 beds available at that facility. ^[134]

     134. Exhibit D.

258. While the Health Network publication notes that requests for a diabetic-appropriate diet can be made to CSNSW Therapeutic Diets, it also notes that “diabetic patients are offered a normal [Corrective Services Industries] diet”. ^[135]

     135. Exhibit D.

259. Commissioner Severin’s letter, initially prepared in anticipation of Edward Obeid being transported from custody to attend his trial, provided further detailed information about the care of inmates who suffer from diabetes. Commissioner Severin clarified that:

CSNSW does not provide an alternative diet to diabetic inmates. The regular [Corrective Services Industries] diet menu is provided in accordance with Australian Dietary Guidelines and meets the requirements of Diabetes Australia.

260. Commissioner Severin went on to note that during his period of incarceration at Kirkconnell, Mr Obeid was issued CSI meals and did not alert staff to those meals being inappropriate for him as a diabetic. Commissioner Severin also noted that diabetic inmates at Kirkconnell are issued a daily “diabetic pack” containing milk, cereal and a piece of fruit. ^[136]

     136. Exhibit E.

Consideration

261. Having considered all of the evidence tendered on sentence as bearing upon the current physical and mental health of the offenders and the material tendered by the Crown which is not challenged, I am obliged to proceed to sentence on the basis that each of the offenders will receive adequate treatment whilst in custody and that their individual medical needs as sentenced prisoners will be identified upon admission and progressively monitored and addressed as symptoms present or their condition deteriorates, including the need for external specialist treatment if required.

The question of remorse

262. The Sentencing Act recognises that where an offender adduces evidence that they have accepted responsibility for their actions and have acknowledged any injury, loss or damage they have caused or have made reparation for it, that may operate in mitigation of sentence. ^[137]

     137. Sentencing Act, s 21A(3)(i).

263. No evidence of remorse was adduced by any of the offenders. No acknowledgement was forthcoming from any of them as to the damage done to the institutions of government and the public confidence in them by their actions. Although they are not to be additionally punished by taking that attitude, their lack of remorse disentitles them to its mitigating effect.

264. Additionally, although the evidence at trial allowed me to find as a fact that a considerable profit resulted from the commercial use Moses Obeid put the information that was derived from Mr Macdonald’s successive acts of wilful misconduct, and although there is no evidence that there has been any disgorging of those profits from any of the companies over which members of the Obeid family exercise legal or fiduciary control, neither Moses Obeid nor Edward Obeid are to be additionally punished for that fact.

265. As to whether any of the offenders are unlikely to re-offend such as to allow for positive findings that they have good prospects of rehabilitation as a factor in mitigation,^[138] I am satisfied that despite an absence of remorse or contrition, or any evidence that might allow me to find as a fact that any of the offenders have any insight into their offending, in circumstances where neither Mr Macdonald nor Edward Obeid currently occupy any position of public trust and, given the nature of their offending, they never will again, I am able to find, on the probabilities, that in light of their age and the sentence of imprisonment they will serve before being entitled to release on parole, they are unlikely to have the opportunity to criminally misconduct themselves in the future.

     138. Sentencing Act, s 21A(3)(h).

266. I am, however, able to make a positive finding on the probabilities that, inter alia, by reason of Moses Obeid’s age and Dr Nielssen’s report, he has sound prospects of rehabilitation and he is unlikely to reoffend.

The cooperation of the offenders during the trial

267. When read together, ss 21A(3)(l) and 22A(1) and (2) of the Sentencing Act allow for pre-trial disclosure by an accused to be taken into account as a mitigating factor in sentencing, including where disclosures are made prior to or during the trial, with the proviso that any reduction in sentence is not disproportionate to the nature and circumstances of the offence.

268. In its written submissions, the Crown recognised the generally cooperative manner in which the trial was conducted by and on behalf of the offenders. I also acknowledge that the pre-trial directions I issued in 2018 in order that objections to aspects of the Crown case be dealt with in an orderly fashion were complied with to the credit of all participating counsel. I also note that in large part the continuity and provenance of documents was not disputed and that there were prepared from time to time during the course of the trial lengthy agreed facts, ^[139] and ultimately no opposition to the Crown’s tender of a number of summaries prepared pursuant to s 50 of the Evidence Act. ^[140] Finally it must fairly be said that the cross-examination of the Crown witnesses was largely focused and concise with minimal duplication.

     139. Trial Exhibit G, Exhibit H, Exhibit M, Exhibit N, Exhibit AW, Exhibit AX.

     140. Trial Exhibits B-E and various diagrams and summaries styled as aides memoire and marked MFI 6-15. Limited objection to the lengthy expert report of John Temple-Cole tendered as Trial Exhibit AT.

269. I will afford weight in the sentences to be imposed on each of the offenders for their cooperation.

Special circumstances

270. A wide range of subjective considerations might attract a finding of special circumstances justifying an alteration in the statutory ratio of 75 per cent in s 44 of the Sentencing Act between the term of imprisonment that an offender must spend in custody before being eligible to be considered for release to parole and the balance of the term of imprisonment imposed.

271. Although the factors relevant to a finding of special circumstances are not limited to altering the statutory ratio to allow for a longer period on parole where an offender’s sound prospects of rehabilitation warrant that finding, in many cases that is a factor which will be worthy of weight.

272. In this case, Moses Obeid is the only offender about whom I have made a positive finding of sound prospects of rehabilitation and the only offender who faces imprisonment for the first time. I am also conscious of his current medical condition which carries the risk of the onset of migraine headaches requiring the immediate administration of intravenous medications. Whilst I cannot do other than proceed to sentence on the basis that Justice Health will be aware of Moses Obeid’s susceptibility to the debilitating impact of migraine headaches, and that arrangements will be made to ensure he has access to medication as and when required, I accept Moses Obeid’s experience of custody for the first time, at the age of 52, will be particularly onerous.

273. A finding of special circumstances is warranted in his case for those reasons. I also take into account the conditions of custody to which he will be subject whilst ever the impact of the current health pandemic is dealt with in the correctional system in the ways I have outlined above.

274. It is well recognised that an offender’s ill health^[141] and advanced age may also operate to allow a court to vary the statutory ratio allowing for a longer period on parole. ^[142]   Although unlike Moses Obeid this will not be the first time Edward Obeid or Mr Macdonald have been sentenced to imprisonment, the Crown accepted that fact should not disentitle either of them to a finding of special circumstances when their age, coupled with the particular health issues experienced by them at this time, are taken into consideration.

     141. R v Sellen (1991) 57 A Crim R 313 at 320; R v Elzakhem [2008] NSWCCA 31 at [68]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [58]; Devaney v R [2012] NSWCCA 285 at [92]; Morton v R [2014] NSWCCA 8 at [19].

     142. R v Mammone [2006] NSWCCA 138 at [54].

275. I am satisfied that the likely hardship Edward Obeid will experience in custody on account of his advanced age and increasing frailty, coupled with the complex of his medical conditions which will require close monitoring by Justice Health generally and in the current pandemic even more closely, will justify a finding of special circumstances in his case.

276. Being conscious to ensure against the risk of double counting of those factors, they will be given significant weight in the degree to which I propose that the statutory ratio under s 44 of the Sentencing Act should be altered in the sentence to be imposed on him, but I have not otherwise taken them into account in ameliorating the length of the overall sentence to be imposed. ^[143]

     143. Scott v R [2020] NSWCCA 81 at [167] applying R v Simon (2003) 142 A Crim R 166; [2003] NSWCCA 147 at [33]; R v Baldwin [2001] NSWCCA 320 citing R v Hunter (1984) 36 SASR 101.

277. Mr Macdonald is also likely to experience hardship as a sentenced prisoner by reason of the same set of objective circumstances as Edward Obeid will experience. Although his medical conditions are able to be managed without the same level of attendant care that I accept Edward Obeid has progressively come to need in his daily life and will inevitably require as he serves his sentence, and although Mr Macdonald is not at an age where his mobility is compromised, the chronicity of his medical condition will make a sentence of imprisonment onerous for him and likely more so as he serves his sentence. He will also require ongoing assessment by Justice Health to ensure that his custodial conditions do not expose him to the risk of an acute compromise to his gastrointestinal system. That risk materialised when he was sentenced to imprisonment in 2017 in what I am satisfied, on the evidence before me, was a serious breach of care by Justice Health whilst Mr Macdonald was an inmate, requiring immediate surgical intervention upon Mr Macdonald’s release from custody in 2019 to avoid what was developing as an untreated inguinal hernia with a grave risk of very serious complications.

278. As with the approach I have taken to Edward Obeid’s age and ill health, Mr Macdonald’s age and health will be given weight in the degree to which I will vary the statutory ratio between the non-parole period and balance of term as component parts of his sentence but I will not take those factors into account in mitigation of sentence.

Sentencing orders

Ian Michael Macdonald

1. For the conspiracy for which Ian Michael Macdonald was convicted on 19 July 2021, I impose a sentence of imprisonment for 9 years and 6 months which, after a finding of special circumstances, comprises a non-parole period of 5 years and 3 months with a balance of term of 4 years and 3 months.

2. That sentence is to date from today, 21 October 2021.

3. Mr Macdonald will be eligible to be considered for release to parole on 20 January 2027.

4. The sentence of imprisonment will expire on 20 April 2031.

Edward Moses Obeid

1. For the conspiracy for which Edward Moses Obeid was convicted on 19 July 2021, I impose a sentence of imprisonment for 7 years which, after a finding of special circumstances, comprises a non-parole period of 3 years and 10 months with a balance of term of 3 years and 2 months.

2. That sentence is to date from today, 21 October 2021. [144]

   144. To the extent that s 55 of the Sentencing Act has any application in the sentence to be imposed on Edward Obeid, by reason of the sentence imposed by Beech-Jones J on 15 December 2016 having yet to expire (it expires on 14 December 2021), I have taken that fact into account in the sentence to be imposed albeit it has not affected that component of the sentencing order which directs that the sentence is to commence today.

3. Edward Obeid will be eligible to be considered for release to parole on 20 August 2025.

4. The sentence of imprisonment will expire on 20 October 2028.

Moses Edward Obeid

1. For the conspiracy for which Moses Edward Obeid was convicted on 19 July 2021, I impose a sentence of imprisonment for 5 years which, after a finding of special circumstances, comprises a non-parole period of 3 years with a balance of term of 2 years.

2. That sentence is to date from today, 21 October 2021.

3. Moses Obeid will be eligible to be considered for release to parole on 20 October 2024.

4. The sentence of imprisonment will expire on 20 October 2026.

**********

Annexure 1

EXHIBITS – SENTENCE

R v Ian MACDONALD 2015/212910

R v Edward OBEID 2015/214251

R v Moses OBEID 2015/212851

No.	Detail	Case
CROWN
A	Crown Sentence Summary for Ian Macdonald: - CAN issued 17 July 2015 - Notice of Committal dated 30 May 2017 - Indictment presented 11 Feb 2020 - NSW criminal history as at 23 July 2021 - AFP criminal history as at 24 March 2020 - Custodial History as at 26 July 2021	IM
B	Crown Sentence Summary for Edward Obeid: - CAN issued 17 July 2015 - Notice of Committal dated 30 May 2017 - Indictment presented 11 Feb 2020 - NSW criminal history as at 23 July 2021 - Custodial History as at 26 July 2021	EO
C	Crown Sentence Summary for Moses Obeid: - CAN issued 17 July 2015 - Notice of Committal dated 30 May 2017 - Indictment presented 11 Feb 2020 - NSW criminal history as at 30 March 2020	MO
D	Justice Health document - “Overview of Services” – October 2020	IM, EO, MO
E	Letter from Peter Severin, Commissioner, Corrective Services to Fullerton J dated 26 July 2019	EO
F	(1) Report of Dr Katherine Ellard – 10 July 2019 (2) Report of Dr Katherine Ellard – 15 July 2019	IM
G	Various materials relating to the nature and extent of the outbreak of COVID-19 in correctional centres in New South Wales filed after the sentence hearing.	IM, EO, MO
OFFENDERS
Macdonald
1	Letter from Dr Jonathan Mak to Fullerton J [August 2021] plus attachments: (A) Letter from Prof T Borody to Dr Mak – 24 August 2021 (B) Referral to Prof Phillip Stricker by Dr Mak – 25 August 2021(C) Referral to Centre for Digestive Diseases by Dr Mak – 25 August 2021 (D) COVID-19 vaccination report – 19 August 2021 (E) Justice Health – Patient Self-Referral – 14 October 2017 (F) Letter from Prof T Borody to Justice Health – 19 February 2018 (G) Letter from Dr Leanne Cheung to Justice Health – 1 May 2018	IM
2	Letter from Prof Borody to Fullerton J dated 2 July 2019 attaching report of Dr Norman Janu, surgeon, dated 18 June 2019	IM
17	Character references: (A) Andrea Brown – 30 August 2021 (B) Anita Gylseth – 25 August 2021 (C) Anita Macdonald – 26 April 2017 (D) John Della Bosca – 26 August 2021 (E) Colin Donegan – 2 September 2021 (parts only) (F) Sasha Macdonald – 3 September 2021 (G) Terrence Healey – 3 September 2021	IM
18	Letter from Anita Gylseth to AFCA – 20 February 2019 – plus attached letters: - From NAB to Anita Gylseth trading as Cleaning Services – 7 February 2019 - From NAB to Anita Gylseth – 7 February 2019 - From Anita Gylseth to NAB – 15 February 2019 - From St George to Anita Gylseth – 11 June 2015 - From Westpac to Anita Gylseth – 12 June 2015 - From Westpac to Gina Brown – 11 June 2015 - From St George to Anita Gylseth – 25 June 2015	IM
19	Three articles from The Sydney Morning Herald: - “Keeping up with Jones: the history of broadcaster’s praise” – 27 May 2017 - “The secret diary of Ian Macdonald” – 23 September 2017 - “‘Lucky’ at liberty to spill the beans” – 10 February 2020	IM
20	Letter from Prof Borody – 9 September 2021	IM
21	Report on COVID-19 and the impact on New South Wales prisoners – Kirby Institute – UNSW Sydney	IM
22	The Bugmy Bar Book – NSW Public Defenders – 17 August 2021	IM, MO
23	Handwritten note – Dr Mak – 29 May 2021 plus typed transcript	IM
24	Handwritten letter from Dr Mak to Fullerton J plus Health Summary (and typed transcript) – 21 July 2021	IM
E Obeid
3	Index – Expert Reports – Edward Obeid: (A) Dr Sharon Reutens, Consultant Psychiatrist – 6 September 2021 (B) Dr Adib Obeid, GP – 2 September 2021 (C) Dr David Roy, Cardiologist – 12 August 2021 (D) Dr John Chang, Consultant Ophthalmic Surgeon – 17 March 2020 (E) Dr Pascal Bou-Haidar, Radiologist – 30 January 2020 (F) Dr Sebastian Fung, Radiologist – 19 October 2020 (G) Dr Salman Khan, Neurologist – 5 February 2020 (H) Discharge summary – North Shore Private Hospital – 28 December 2020 (I) Dr Michael Delaney, Ophthalmic Surgeon – 17 December 2019	EO
4	Index – Character references – Edward Obeid: (A) Gemma Vrana – 27 August 2021 (B) Maree Obeid – 28 August 2021 (C) Eddie Obeid Jnr Jnr – 28 August 2021 (D) Angelica Saab – 28 August 2021 (E) Edward Obeid Jnr – 28 August 2021 (F) Judith Obeid – 1 September 2021 (G) Patricia Lees – 1 September 2021 (H) Olivia Achie – 1 September 2021 (I) Rebecca Joummaa – 1 September 2021	EO
M Obeid
5	Character references: (A) Nicole Obeid – 18 August 2021 (B) Matthew Sweeney – 18 August 2021 (C) Daniel Traylen – 20 August 2021 (D) Roberto Araneda – 18 August 2021 (E) Debbie Dickson – 23 August 2021	MO
6	Letter from Adam Goss, St Joseph’s College, to Fullerton J – 20 August 2021	MO
7	Report of Dr Olav Nielssen, Psychiatrist – 6 September 2021	MO
8	Report of Dr Daniel Hameiri – 31 August 2021	MO
9	Medical certificate – Dr Theo Penklis – 3 September 2021	MO
10	Report from St Vincent’s Hospital Emergency Department – 6 September 2021	MO
11	Report of Dr Hameiri – 7 September 2021	MO
12	Handwritten note from Dr Hameiri to Dr Sutton – 7 September 2021	MO
13	Letter from Dr Theo Penklis to Dr George Lianos – 29 January 2020	MO
14	Letter from Dr Marc Coughlan to Dr Penklis – 27 June 2015	MO
15	Letter from Dr Penklis to Dr Keith Roberts – 16 July 2015	MO
16	Letter from Dr Hameiri – 17 August 2021	MO
25	Chapter 33: Corrupt conduct findings, s 74A(2) statements and other matters	MO, IM, EO
26	Three letters from Dr Ian Sutton, Consultant Neurologist, dated 14, 21 and 28 September 2021	MO

ANNEXURE 2: SCHEDULE OF COMPARABLE CASES

Offence	Circumstances of offence	Objective seriousness	Key mitigating factors	Penalty
R v Hoyn [2020] NSWDC 834 (plea: not guilty)
Offence: four counts of the common law offence of misconduct in public office and others maximum penalty of analogue provisions: Pt 4A of the Crimes Act 1900 (NSW), 7 years	The offender was a police officer who improperly accessed personal information on the police information systems and provided details about that personal information to others between July and December 2018	“It can be seen from my recitation of the nine factors that a number of them are not present in this case, putting this matter lower in the range of objective seriousness than others to which I will now refer.” [23]	Subjective factors: Significant mental health problems, PTSD	CCO for counts three and four, full time custodial order to be served by way of ICO for counts five and six
R v Obeid (No 12) [2016] NSWSC 1815 (plea: not guilty)
Offence: one count of the common law offence of wilful misconduct in public office maximum penalty of analogue provisions: offences found in Pt 4A of the Crimes Act 1900, specifically s 249B(1) (corrupt commissions or rewards), 7 years	The offender was a Member of the Legislative Council of NSW. In August 2007 he made representations to a senior officer of the Maritime Authority, to secure lease renewals for two Circular Quay businesses that he and his family had a financial interest in	“a very serious example of the offence because of the onerous nature of the duty owed by him as a parliamentarian compared to other such officials and the extent of his departure from it.” [89]	Subjective factors: Prior good character Mr Obeid’s reaction to the harm that his own conduct has caused to his family Extensive, negative, media coverage (afforded some weight but not much) No prospect of him offending again Good prospects of rehabilitation Age, health and reduced life expectancy taken into account in the mix of factors but not to any significant degree Other factors: No loss or damage was occasioned Admissions made and agreements reached in the course of the trial	5 years imprisonment (non-parole period of 3 years) Appeal against conviction and sentence dismissed (see Obeid v R [2017] NSWCCA 221)
R v Pieper [2014] NSWDC 242 (plea: guilty)
Offence: six counts of common law offence of misconduct in public office maximum penalty of analogue provisions: ss 156 (larceny by clerks/servants), 159 (larceny by clerks in public service) and 160 Crimes Act 1900 (embezzlement in public service), 10 years	The offender was the general manager of a County Council. He orchestrated various frauds that resulted in his misappropriating over $350,000 between January 2001 and December 2010	“The amount of money involved in these matters is substantial and the period of time over which the offences were committed is lengthy … there are clearly a multiplicity of dishonest acts and several of them involved an obvious level of sophistication in relation to both their commission and the steps taken to avoid them being uncovered … the offences were committed for the purpose of financial gain … Overall, I would regard the level of criminality involved in each of these matters as quite significant and each are objectively very serious.” [49] to [52]	Subjective factors: no criminal history good character including at work Low level risk of re-offending Prospects of rehabilitation good and may improve further Other factors: Some prospect of the money being repaid	4 years and 9 months imprisonment (10 percent discount) (non-parole period of 3 years)
Hughes v R [2014] NSWCCA 15 (plea: guilty)
Offence: two counts of wilful misconduct in public office; two offences of giving false evidence to the Police Integrity Commission contrary to s 107 Police Integrity Commission Act 1996 (NSW): maximum penalty 5 years	The offender was a police officer who accessed a police database and created false intelligence reports in 2009 and 2010 to “cover her tracks” having failed to report admissions made by persons involved in stealing a car to help her then boyfriend. She gave false evidence to the Police Integrity Commission in the course of the investigation of the offences in 2011	“In my view the objective seriousness of the misconduct of a holder of public office offences falls at the upper range of objective seriousness for offences of that kind. In coming to that view I have taken into account and accepted the opinions of Ms Brigida and Dr Ristogi that the [applicant's] mental health history has played some part in the commission of these offences. However, I am unable to agree with Ms Brigida that the [applicant's] mental health history played 'a very big part' in her criminal offending.” [42] On appeal: “… his Honour was correct to treat the misconduct in public office offences as having a high level of objective seriousness.” [50]	Subjective factors: 21 years of age Significant mental health issues Less likely to re-offend based on her clinical condition These are all that are apparent from the appeal decision and the underlying decision was never reported	7 months for first count; 18 months for second count (non-parole period of nine months) Appeal dismissed
Blackstock v R [2013] NSWCCA 172 (plea: guilty)
Offence: common law offence of misconduct in public office	The offender was a project officer employed by RailCorp, who between 2003 to 2007 included a business (in which he secretly held an interest) on a list of possible contractors for consideration by his superiors and then “played a part in the allocation of work” to the business	“... the objective gravity of this matter is substantial. Millions of dollars of public money have gone through what is in effect a "bodgie" company set up by this man, deliberately for the purpose of obtaining work to which he otherwise would not have been entitled.” [53] On appeal: “His Honour was making the entirely commonplace observation, in this area of discourse, that the amount of money involved is a highly relevant consideration in the assessment of the objective seriousness of the offending. Moreover, as he pointed out, it was indicative of the degree of abuse of office involved in the offending. Given what appears to be the high level of profitability of government contracts in this field, it is essential that the public have complete confidence in the integrity of the processes for the allocation of government contracts on a fair and competitive basis.” [63]	Subjective factors: 40 years old No prior criminal record of any significance prior good character	4 years (25 percent discount) (non-parole period of 3 years) Appeal dismissed
Jansen v R [2013] NSWCCA 301 (plea: guilty)
Offence: one count of misconduct in public office	The offender was a police officer who accessed police intelligence and other sensitive information and disseminated it in or about early 2011	“The sentencing judge did not give the mental health problems significant weight. He regarded the offences as "extremely serious". In fact he regarded the objective seriousness as being in the upper range.” [60]	Subjective factors: 27 years old Depressive and PTSD symptoms made him unsuitable to policing Prospects of rehabilitation and not re-offending “are very good”	4 years and 6 months (25 percent discount) (non-parole period of 2 years) Appeal dismissed
Jaturawong v R [2011] NSWCCA 168 (plea: guilty)
Offence: seven counts of accessory before the fact to the offence of misconduct in public office maximum penalty of analogue provisions: Pt 4A of the Crimes Act 1900, 7 years	The principle offender (McPherson) was the manager of a Motor Registry who received regular payments to improperly allow applicants to obtain learner permits or drivers licences. The offender (Jaturawong) was an accessory before the fact because (from 2004 to 2006) he received a specific amount of money from each assisted person	“The sentencing judge described the offences committed by both Mr McPherson and the applicant as: ‘... very serious indeed. They involved corruption of a public officer, which strikes at the heart of the administration of good Government ...’” [20]	Subjective factors: Unlikely to re-offend Good prospects of rehabilitation Remorse Other factors: Delay in these charges The applicant had assisted ICAC with its enquiries into the matter	2 years and 10 months (non-parole period of 1 year 8 months) Appeal allowed: resentenced to 2 years 4 months (non-parole period 1 year 4 months)
R v Farrell (unreported) District Court of NSW, 13th February 2013
Offence: misconduct in public office	The offender was a long serving police officer who agreed to provide police intelligence orally to a businessman who was a close personal friend	Plea: Guilty (late)	Subjective factors: Prior good character (discounted) 40 years old Previously unblemished record	2 years (small discount for late plea of guilty) (non-parole period of 1 year)
R v Nuttall; ex parte Attorney-General (Qld) [2011] QCA 120; 209 A Crim R 538 (plea: not guilty)
Offence: five counts of official corruption contrary to s 87 Criminal Code Act 1899 (QLD), maximum penalty 14 years if committed by Minister of the Crown; five counts of perjury contrary to s 124 Criminal Code Act 1899 (QLD), maximum penalty 14 years	The offender was a member of the Queensland Legislative Assembly. He received secret commissions to plan and promote projects of his associates. About $130,000 was paid to the offender by a series of payments between October 2005 and April 2006	“In the circumstances of this case, the gravity of the offending conduct, its duration and frequency and the intervening Talbot and Shand offending make the respondent’s previous good character a matter of little weight. Abuse of a position of authority or trust is normally considered a circumstance of aggravation and it plainly is in this case.” [58] “The offending conduct calls for severe punishment to mark its public denunciation in no ambiguous way and to serve as a deterrent to others who may be tempted to abuse high office.  In my respectful opinion, the subject sentences do not satisfy these requirements.” [73]	Subjective factors: 57 years of ages No remorse/insight Previous good character Lack of prior convictions Loss of employment and lack of job prospects Loss of reputation and public opprobrium (question as to whether can be taken into account)	5 years for each of five counts of official corruption Crown appeal allowed, 7 years for each of the offences of official corruption, to be served concurrently
R v Purcell [2010] NSWDC 98 (plea: guilty)
Offence: misleading Police Integrity Commission; common law offence of misconduct in a public office maximum penalty of analogue provisions: regarding misconduct in a public office, offence under s 201 of the Police Act1990 (NSW) (neglect of duty)which carries a maximum penalty of a fine	The offender was a police superintendent who persistently and deliberately disobeyed a direction from a superior officer concerning what the offender could say to members of the press about certain sexual assaults committed in the local area under his command in 2006 The offender later mislead the Police Integrity Commission in 2007	“In assessing the gravity of this offence it is perhaps instructive to consider that the statutory offence most closely covering the offender’s conduct is an offence under s 201 of the Police Act which carries a maximum penalty of a fine. The Crown accepts therefore that the offender should not receive a sentence of imprisonment for this offence. Nor should I impose a community service order ...” [5]	Subjective factors: Remorse Career as police officer over Prior good character Mental state Other factors: Delay	Fined $2,000 for misconduct in a public office, community service for misleading the Police Integrity Commission
R v Phillip Hans Field (HC Auckland CRI-2007-092-18132, 6 October 2009) (plea: not guilty)
Offence: 11 counts of corruption and bribery as a Member of Parliament 15 counts of attempting to pervert the course of justice (this summary relates only to the corruption and bribery charges) Maximum penalty: 7 years	The offender was a member of the New Zealand Parliament. Between 2003 and 2006 he proffered immigration advice and assistance to various Thai immigrants – in return he accepted benefits from them in the form of work done on properties he owned (in the nature of tiling, plastering, painting and other building and redecorating work) and sold for profit	“Your wrong was to accept a reward for doing your job. That was wrong but it is not as serious, in my view, as accepting a bribe as an inducement for wrongful ends.” [58] “While, … it was not of the most serious kind, it involved repeated and blatant violations of your duty as a parliamentarian. In my view, a starting point for sentence on the charges of bribery and corruption of five years imprisonment is appropriate.” [64] Aggravating: prepared to exploit the gratitude of the Thai nationals he helped	Subjective factors: Good character and public service (cannot give undiminished weight to this) Remorse Other factors: Did not initiate the offending Offending had its genesis in an initial act of kindness	4 years on each of 11 counts of bribery and corruption
HKSAR v Wong Kwong Shun Paul [2009] 4 HKLRD 840 (plea: not guilty)
Offence: one count of misconduct in public office	The offender was a landscape architect of the Housing Department. Between January 2000 and September 2001, in four Housing Department projects the offender recommended using EPOX products supplied by a company he had a personal relationship with, without disclosing this fact	“The applicant’s misconduct was extremely serious whether or not it would cause the Housing Department to use unsuitable products and suffer serious consequences as a result.” [47]	Community service for 100 hours Appeal against conviction dismissed
DPP v Marks [2005] VSCA 277 (plea: guilty)
Offence: one count of misconduct in public office, and drug charges (ecstasy) Maximum penalty: 10 years	The offender was a senior constable of police who in 2003 accessed by computer the Victoria Police Law Enforcement Assistance Program and found an entry relating to a suspect on drug charges and shared it with another suspect	“I am unable to accept that the respondent's crime should be sloughed off as a mere error of judgment, falling short of moral turpitude.  In my judgment it was a serious offence.” [33] “Were it not for the way in which the matter was conducted before the sentencing judge and on this appeal, I have no doubt that the respondent should have been convicted of the offence of misconduct in public office, and that the seriousness of the offence would have warranted a term of imprisonment.  It is another matter whether part of the term should have been suspended. [37]	Subjective factors: 30 years impact of a conviction on future job prospects Deep remorse and shame Lack of prior convictions Lost his career as a police officer after eight years Other factors: Early plea Cooperation with investigators	Fine $4,000 Crown appeal against sentence dismissed (primarily because findings of sentencing judge not challenged and other concessions by Crown at first instance and on appeal)
R v Rouse (Court of Criminal Appeal (Tas), 19 October 1990, unreported) (plea: guilty, entered late)
Offence: one count of offering a bribe to a member of Parliament; one count of improper use of position as an officer of a company Maximum penalty/maximum penalty of analogue provisions: s 72 Criminal Code 1924 (TAS), “anything from fining a man to imposing a sentence of 21 years' imprisonment”	The offender offered a member of Parliament $110,000 to cross the floor to support the Liberal Government in 1989	“There was no lack of recognition by his Honour of the seriousness of the respondent's conduct in offering the bribe, while in respect of the improper use of the respondent's position as an officer of a company, his Honour observed, ‘it is difficult to imagine a more improper use of corporate monies than to employ them in the course of trying to bribe a Member of Parliament, but I accept your statement that you intended to return the money and use your personal funds.’” (pg 7) aggravating factor: Involved a third person	Subjective factors: 64 years of age No previous convictions Previously highly respected member of the community	3 years for offering a bribe to a member of Parliament; $4,000 fine for improper use of position as an officer of a company Crown appeal against sentence dismissed
Jackson & Hakim v R (1988) 33 A Crim R 413 (plea: not guilty)
Offence: conspiracy with others to bribe in official duty maximum penalty of analogue provisions: offences in Part III Crimes Act 1914 (Cth), 10 years = offences in Part IVA of the Crimes Act NSW, 7 years	The offenders were the Minister for Corrective Services (Jackson) and Hakim who conspired to receive bribes to effect the early release of prisoners on parole between 1982 and 1983	(Regarding Jackson) “The commission of a consistent abuse of high public office involving the receipt of bribes for public favours necessarily calls for a severe sentence to demonstrate public denunciation of such conduct. The sentence imposed fell significantly short of that which was required.” (413)	Subjective factors (regarding Jackson): many years of valuable public service (tarnished)	Jackson: 7 years and 6 months (non-parole period of 3 years 9 months) Crown appeal against sentence allowed, 10 years (non-parole period of 5 years) Hakim: 6 years and 6 months (non-parole period of 3 years) Crown appeal against sentence dismissed
R v Bruneau (1963) CarswellOnt 22; [1964] 1CCC 97; [1964] 1 OR 263, 42 CR 93 (plea: not guilty)
Offence: acceptance of bribe by member of Parliament for the use of his influence “in an official capacity” maximum penalty: 14 years	The offender was a member of the Canadian Parliament who in 1956 received a corrupt payment to use his influence to have the Federal Government purchase the property owned by the payer of the bribe	“The responsibility of a member of Parliament to his constituency and to the nation requires a rigorous standard of honesty and behaviour, departure from which should not be tolerated.” (103 to 104)	Subjective factors: No criminal record Comparatively young man with a family Likelihood of being admitted to the Bar was in serious question if the conviction was upheld	Suspended sentence and 2 years probation Crown appeal against sentence allowed, 5 years

Endnotes

Decision last updated: 21 October 2021