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R v Obeid (No 12)

R v Obeid (No 12)

Case [2016] NSWSC 1815 15 December 2016

Criminal Liability

Sentencing

Wilful Misconduct in Public Office

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Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Obeid (No 12) [2016] NSWSC 1815
Hearing dates: 1 December 2016
Date of orders: 15 December 2016
Decision date: 15 December 2016
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) The offender is sentenced to a term of imprisonment of 5 years to commence on 15 December 2016, with a non-parole period of 3 years.
(2) The offender will be eligible for release on parole on 15 December 2019 and the sentence will expire on 14 December 2021.
Catchwords: CRIME – SENTENCING – parliamentarian – found guilty of wilful misconduct in public office following trial – identifying facts necessarily found by jury – offender intervened in process of lease renewal over premises in which he and family held an interest – jury instructed that to convict had to be satisfied beyond reasonable doubt accused intervened to advance lessee’s interest and not because of any belief that it was in the interests of the electorate – principles relevant to sentencing offender for wilful misconduct in public office – identification of analogue statutory offence – use of maximum penalty for analogue offence as a reference point – absence of cohort of comparable cases – critical factor to determining level of criminality is nature of duty owed and extent of departure from duty owed – offender owed onerous duty – level of offending serious – general deterrence and need for denunciation – dominant considerations – offender’s subjective case – prior good character of lesser weight in cases of wilful misconduct in public office – extra curial punishment in form of adverse publicity – no relevant form of harm to offender from publicity – offender’s medical condition – offender aged 73 – various medical conditions including recent stroke – reduced life expectancy – although offender would not receive same level of care in custody would receive adequate level of care – delay – no delay on the part of prosecutorial or investigative bodies established – other sentencing factors – no prospect of offender reoffending – remorse not shown – offender cooperated in conduct of trial – no sentence other than full time imprisonment could be imposed – special circumstances established – term of imprisonment imposed
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Police Act 1990 (NSW)
Police Integrity Commission Act 1996 (NSW)
Cases Cited: Australian Communist Party v The Commonwealth [1951] HCA 5; 83 CLR 1
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 253 CLR 58
Barton v R [2009] NSWCCA 164
Blackstock v Regina [2013] NSWCCA 172
Blanco v R [1999] NSWCCA 121
Coles v R [2016] NSWCCA 32
DPP v Marks [2005] VSCA 277
Duncan v R [2012] NSWCCA 78
Einfeld v R [2010] NSWCCA 87
Ex parte Kearney [1917] NSW St Rp 68; 17 SR (NSW)…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Obeid (No 12)

Details

AGLC: R v Obeid (No 12) [2016] NSWSC 1815
Case: [2016] NSWSC 1815
Decision Date: 15 December 2016

CaseChat Overview and Summary

The case of R v Obeid (No 12) involved the sentencing of a parliamentarian found guilty of wilful misconduct in public office after a trial. The central issue before the court was determining the appropriate principles for sentencing the offender, who had intervened in the process of lease renewal for premises in which he and his family held an interest. The jury was instructed that to convict, they must be satisfied beyond reasonable doubt that the accused's intervention was to advance the lessee's interest, not because of any belief that it was in the electorate's interests.

The court had to consider the principles relevant to sentencing for wilful misconduct in public office. It was determined that the absence of a cohort of comparable cases meant that the maximum penalty for an analogous offence could serve as a reference point. The critical factor in determining the level of criminality was the nature of the duty owed by the offender and the extent of the departure from that duty. Given the onerous duty the offender owed and the serious nature of the departure, general deterrence and the need for denunciation were dominant considerations. The court also noted that the offender's subjective case and prior good character were of lesser weight in cases of wilful misconduct in public office. The extra-curial punishment in the form of adverse publicity did not constitute relevant harm to the offender, who was aged 73 with various medical conditions, including a recent stroke, and a reduced life expectancy. Although the offender would not receive the same level of care in custody as he would outside, he would receive adequate care.

Given the seriousness of the offence, the lack of remorse shown by the offender, and the cooperation during the trial, the court concluded that no sentence other than full-time imprisonment could be imposed. Special circumstances were established, leading to the imposition of a term of imprisonment.

Orders