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R v Macdonald; R v Maitland

R v Macdonald; R v Maitland

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Supreme Court

New South Wales

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Amendment notes

Medium Neutral Citation: R v Macdonald; R v Maitland [2017] NSWSC 638
Hearing dates: 26 May 2017
Date of orders: 02 June 2017
Decision date: 02 June 2017
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
Ian Macdonald

(1) Convicted of counts 1 and 3 on the indictment.

(2) Impose an aggregate sentence of 10 years commencing on 26 May 2017 and expiring on 25 May 2027 with a non-parole period of 7 years commencing on 26 May 2017 and expiring on 25 May 2024.

(3) The offender will become eligible to be released on parole on 25 May 2024.

(4) The sentences that would have been imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are:

(a) For the offence of Count 1, a sentence of 8 years.
(b) For the offence of Count 3, a sentence of 7 years.

John Maitland

(5) Convicted of counts 2 and 4 on the indictment.

(6) Impose an aggregate sentence of 6 years commencing on 26 May 2017 and expiring on 25 May 2023 with a non-parole period of 4 years commencing on 26 May 2017 and expiring on 25 May 2021.

(7) The offender will become eligible to be released on parole on 25 May 2021.

(8) The sentences that would have been imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are:

(a) For the offence of Count 2, a sentence of 5 years.
(b) For the offence of Count 4, a sentence of 4 years.
Catchwords:
CRIMINAL LAW – sentence – principal offender – 2 counts of wilful misconduct in public office – Minister of Mineral Resources – use of power conferred on him by the Mining Act to grant exploration licence to confer benefit on third party – damage to public institutions – importance of general deterrence and denunciation – motive not established

CRIMINAL LAW – sentence – wilful misconduct in public office – common law offence – no maximum penalty – consideration of statutory analogies
CRIMINAL LAW – sentence – accessory – 2 counts accessory before the fact to wilful misconduct in public office – accessory causative of principal offence – motivated by financial gain
Legislation Cited:
Confiscation of Proceeds of Crime Act 1989 (NSW)
Constitution Act 1902 (NSW), s 13A
Corporations Act 2001 (Cth), s 184
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4, 5, 6, 7, 9, 21A, 24B, s 24C
Crimes Act 1900 (NSW), ss 3, 249B, 249E, 319, 346, Sch 2
Crimes Act 1958 (Vic), s 320
Criminal Code (Cth), s 142.2
Criminal Code 1899 (Qld), s 92A
Independent Commission Against Corruption Act 1988 (NSW), s 87
Mining Act 1992 (NSW), ss 3, 13(4), 22, 51
Parliamentary Contributory Superannuation Amendment (Criminal Charges and Convictions) Act 2017 (NSW)

Cases Cited:
Blackstock v R [2013] NSWCCA 172
Dipangkear v R [2010] NSWCCA 156
GAS v The Queen; SJK v The Queen (2004)…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2017] NSWSC 638
Decision Date: 02 June 2017

CaseChat Overview and Summary

In the case of R v Macdonald and R v Maitland, the defendants, Macdonald and Maitland, were charged with criminal offences relating to misconduct in public office. Macdonald, a Minister of Mineral Resources, was accused of two counts of wilful misconduct in public office. He was alleged to have used his position to grant an exploration licence to confer a benefit on a third party, resulting in damage to public institutions. Maitland was charged with two counts of being an accessory before the fact to the wilful misconduct in public office, with the motive behind the accessory charges being financial gain.

The legal issues before the court included determining an appropriate sentence for Macdonald as the principal offender and for Maitland as an accessory. The court was required to consider the nature and gravity of the offences, the role and motivation of each defendant, and the principles of general deterrence and denunciation. The court also needed to address the absence of a maximum penalty for the common law offence of wilful misconduct in public office and sought guidance from statutory analogies.

In assessing the appropriate sentences, the court emphasised the importance of deterrence and denunciation, given the significant damage to public institutions caused by Macdonald's actions. The court noted that while Macdonald's motive was not fully established, the gravity of the offence warranted a severe sentence. The court also considered Maitland's role as an accessory, acknowledging that he was motivated by financial gain and was causative of the principal offence. After careful deliberation, the court determined that Macdonald should receive a lengthy custodial sentence to reflect the seriousness of his misconduct, while Maitland's sentence was to be proportionately less severe.

The court made orders for Macdonald to be sentenced to a specified term of imprisonment for each count of wilful misconduct in public office, with the sentences to be served concurrently. Maitland was also sentenced to a term of imprisonment for each count of being an accessory before the fact, with the sentences to be served concurrently with each other and with Macdonald's sentence where applicable. The court provided detailed reasons for the sentences, ensuring that the principles of general deterrence and denunciation were adequately addressed.

Orders