Sentencing Orders for Common Law Conspiracy Disputed by Offenders
R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 18) [2021] NSWSC 1343 (21 October 2021)
Mr Ian Macdonald, Mr Edward Obeid and Mr Moses Obeid were convicted of conspiring to commit the common law offence of wilful misconduct in public office. Counsel for each of Edward Obeid and Mr Macdonald submitted that a sentence of imprisonment was not the only available sentencing option. The Crown asserts that 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 represents a conspiracy to commit misconduct in public office of a most serious kind. The offenders dispute the same and seek sentencing alternatives.
Facts:
In November 2011, 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. On 19 July 2021, Mr Ian Macdonald, Mr Edward Obeid and Mr Moses Obeid were convicted 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. 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.
Of the three offenders, only counsel for Moses Obeid conceded that the statutory threshold in s 5 of the Sentencing Act was satisfied. 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. 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.
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. The Crown submitted that in order to reflect an offence at the highest end of objective seriousness and to ensure each of the offenders are adequately punished for their offending, the term of imprisonment the Court would impose on each of them would, inevitably, exceed two years. In the Court's verdict judgment, the Court addressed the various policy and fiscal imperatives that provided context to Mr Macdonald’s enthusiasm, as the Minister for Mineral Resources, to exploit unallocated coal resources in New South Wales.
It was 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 as well as 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. The Court was satisfied that by no later than May 2008 the offenders 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.
Issue:
Whether or not the sentence imposed upon the offenders should exceed two years.
Applicable law:
Crimes Act 1900 (NSW) - an Act to consolidate the Statutes relating to Criminal Law.
Crimes (Sentencing Procedure) Act 1999 (NSW) s 68(1) - 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.
Criminal Code Act 1995 (Cth) s 3A - provides for the purposes of sentencing such as ensuring that each offender is adequately punished for the offence, making each offender accountable for his actions, denouncing the conduct of each offender, and etc.
Mining Act 1992 (NSW) - 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.
State Records Act 1988 (NSW) - prohibits a person from transferring, offering to transfer, or being a party to arrangements for the transfer, possession or ownership of a State record.
Blackstock v R [2013] NSWCCA 172 - where it was held that 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.
Dickson v R [2016] NSWCCA 105 - provides 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.
Devaney v R [2012] NSWCCA 285 - explained that 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.
Doudar v R [2021] NSWCCA 37 - relied upon by the Crown in submitting that the Court may take into account the impact of COVID-19 on sentence, including the current suspension of all social and family visits and the reduction in the availability of educational and vocational rehabilitation programs as informing the circumstances in which a sentence of imprisonment will be served, by projecting the scenario at the time of sentence into the term of the sentence, despite the uncertainty those projections necessarily entail.
Duncan v R [2012] NSWCCA 78 - provided that the impact on an offender of adverse publicity and public humiliation in a protracted investigation culminating in a criminal prosecution may be considered only where adverse media attention reaches such proportion as to have a physical or psychological effect on the offender.
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 - provides that 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.
Jackson v R; Hakim v R (1988) 33 A Crim R 413 - held that it is particularly important that those who have the privilege, the honour and the responsibility of cabinet rank should not, for their personal advantage, abuse their position.
Maitland v R; Macdonald v R [2019] NSWCCA 32 - where 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.
Marie v R (1983) 13 A Crim R 440 - where it was submitted that a principled approach to determining the objective seriousness of the conspiracy in this case allows the Court to take into account the overt acts committed by each of the offenders.
Masters v R (1992) 26 NSWLR 450 - emphasised that for sentencing purposes, the primary focus must be on what the conspirators intended to bring about, not whether the object was achieved.
Morton v R [2014] NSWCCA 8 - recognised that an offender’s ill health and advanced age may also operate to allow a court to vary the statutory ratio allowing for a longer period on parole.
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 - held that an increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased.
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 - provides that 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.
R v Baldwin [2001] NSWCCA 320 - where the risk of double counting factors such as advanced age and increasing frailty were not taken into account in ameliorating the length of the overall sentence to be imposed.
R v Bruneau (1963) CarswellOnt 22; [1964] 1CCC 97; [1964] 1 OR 263, 42 CR 93 - held that 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.
R v DW (2012) 221 A Crim R 63; [2012] NSWCCA 66 - where 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.
R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 - held that it is not “white collar” offending per se that entitles a sentencing court to give less weight to evidence of good character, but rather, the nature and circumstances of that type of offence that may permit that approach.
R v Hokin, Burton and Peisely [1922] NSWStRp 19; (1922) 22 SR (NSW) 280 - held that it follows from the preceding analysis that a principled approach to considering the statutory analogue of an offence which carries five years’ imprisonment is that I am to use that penalty as a “reference point”
R v Isaacs (1997) 41 NSWLR 374 - provided that 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.
R v Kane [1975] VicRp 64; [1975] VR 658 - held that a principled approach to determining the objective seriousness of the conspiracy in this case allows the Court 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.
R v Nuttall (2011) 209 A Crim R 538; [2011] QCA 120 - where 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.
R v Obeid (No 12) [2016] NSWSC 1815 - His Honour reasoned that where greater substantive differences exist between the subject offence and the analogue, those differences “bear out the justification for the Court not being limited by the maximum penalty for the relevant statutory analogue”.
R v Smith (2000) 114 A Crim R 8; [2000] NSWCCA 140 - a case which involved ongoing misappropriation of funds where the Court of Criminal Appeal said at [21]–[22]: “[The offender] was not a first offender from the time he committed the second offence, only he had not been caught out”.
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 - where a fact in issue at the trial was treated by the Court as indispensable to proof of the existence of the conspiracy and warranting emphasis for sentencing purposes.
Shum Kwok Sher v HKSAR [2002] HKCFA 27; [2002] 3 HKC 117; (2002) 5 HKCFAR 381 - Mason NPJ found that the abuse of power involved in the offence of misconduct in public office can take many forms, including by an individual exercising a power with a “dishonest” or “corrupt” motive in order to confer a benefit or advantage on themselves or a relative or friend.
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 - held that 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.
The Queen v Hoar (1981) 148 CLR 32; [1981] HCA 67 - held that a sentence imposed for a common law conspiracy should not generally exceed that prescribed for the substantive offence.
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 - provided that where the Court is 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.
Toller v R [2021] NSWCCA 204 - Beech-Jones J said that sentencing judges are entitled to consider the impact of COVID-19 and the potential imposition of restrictions in the future.
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 - provides that 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.
Analysis:
The Court assessed 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. 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 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.
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 the Court's 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.
Although between May and September 2008 Mr Macdonald committed five discrete acts of wilful misconduct, 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. As such, 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. In this case, where the unlawful object of the conspiracy contemplated an extended process of execution actioned by Mr Macdonald at his discretion, the Court's 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.
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. Such evidence 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.
Conclusion:
The Court is 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. The Court is also satisfied that the sentence of imprisonment to be imposed on each of the offenders will exceed two years. Mr Macdonald is punished by 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 is punished by 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 is punished by 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.
