Macdonald v R

v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Category: Principal judgment Parties: Ian Michael Macdonald (Applicant) The Crown (Respondent) Representation: Counsel: C Parkin (Applicant) E Nicholson / N Wootton (Respondent)

Solicitors: HWL Ebsworth (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/212910 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Criminal Citation: [2021] NSWSC 1343 Date of Decision: 21 October 2021 Before: Fullerton J File Number(s): 2015/212910

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Ian Michael Macdonald, was Minister for Mineral Resources in the NSW Labour government from 2005 to 2010, during which time he conspired with Mr Edward Obeid, a backbench colleague, and Mr Moses Obeid, the son of Mr Obeid Snr, to misconduct himself for the purpose of benefitting the Obeid family. The offenders were sentenced on 21 October 2021. The applicant was sentenced to imprisonment for nine years and six months with a non-parole period of five years and three months for conspiring to commit the common law offence of wilful misconduct in public. An appeal against his conviction for that offence has been dismissed concurrently with this judgment. The applicant sought to appeal his sentence on five grounds, namely that (1) the judge erred in finding that the objective seriousness of the offence was aggravated by the absence at its formation of planning of acts later carried out in furtherance of the conspiracy; (2) the judge gave no weight to the sentences available for a "statutory analogue" of the common law offence; (3) the judge's conclusion that the objective seriousness of the conspiracy was "of the highest order" was not open; (4) the sentence was manifestly excessive, and (5) the judge mistook the facts on sentence. The Court (Bell CJ agreeing with Basten AJA and Button J) dismissed the appeal: As to ground 1 - circumstance of aggravation (1) There was no finding by the sentencing judge that the objective seriousness of the conspiracy was aggravated by the fact that, when formed, its execution was contingent on opportunities arising. Observations in oral argument cannot be taken to reflect views in the judgment: The judge did not reverse the principle that planning of criminal activity is an aggravating factor: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n). The word "opportunistic" was used by the trial judge, not to describe offending without planning or prior arrangement, but to describe an agreement to work towards a particular outcome, where particular steps were to be taken as opportunity arose: [10]-[11], [18]-[19], [170]-[172]. As to ground 2 - statutory analogue (2) In sentencing for a common law offence for which there is no maximum penalty, the court can have regard to an appropriate statutory analogue. The penalty for a statutory offence which is the basis of a non-statutory conspiracy charge may provide guidance as to an appropriate range for conspiracy; a statutory offence created by another Parliament will provide little if any assistance in predicting the unexpressed intention of the State legislature: [23]-[24]. Where there was no useful statutory analogue in NSW, the judge did not err in giving minimal weight to the maximum penalty of 5 years' imprisonment for "abuse of public office", under the Criminal Code (Cth), s 142.2, proffered by the applicant: [21], [27], [189]. Esso Australia Resources Ltd v Federal Commissioner of Taxation (Cth) (1999) 201 CLR 49; [1999] HCA 67 compared (3) Two passages in the judgment identified by the applicant as containing irrelevant considerations were actually distinctions made by the prosecutor. The applicant did not directly challenge the judge's conclusions regarding the use of a statutory analogue: [31], [192]. As to ground 3 - objective seriousness (4) By describing the offending as "of the highest order" the judge did not characterise the offending as being in the worst-case category which would justify the maximum penalty. Use of the phrase "the worst category", might have suggested that some maximum available penalty for the offence was appropriate; that phrase was not used: [34], [36], [204]. (5) Where language consistent with categories of offending is used by a judge in sentencing, a finding of error will depend on what the judge actually did: the use of a possible hyperbole does not of itself demonstrate error: [36]. The judge was correct to treat the misconduct of the Minister as a serious breach of public trust: [1], [205], [207]. The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48, referred to (6) An appeal court will be slow to interfere with a sentencing judge's assessment of the objective seriousness of the offending conduct: [45]. Use of four words, "of the highest order", without regard to their context and content cannot demonstrate error. The context shows that such language was used by various parties and the judge, for different purposes, during the sentencing. The content was not put in issue: [47], [203]. Mulato v Regina [2006] NSWCCA 282, applied As to ground 5 - mistaken findings of fact (7) Any factual findings, not inherent in the verdict, that go to objective seriousness or the culpability of the offender and are adverse to the offender's interests must be established beyond reasonable doubt. However, in a circumstantial case it may be that none of the facts relied upon to support the verdict may have been established beyond reasonable doubt, yet the overall conclusion is of guilt established beyond reasonable doubt: [53], [57], [61]. The Queen v Olbrich (1999) 199 CLR 270; [199] HCA 54, applied (8) The only passage in the sentencing judgment [85] which might have been invoked in support of ground 5 was not shown to have any material effect on the relevant question on sentence: [68]-[69]. (9) No such constraint on fact-finding was put to the sentencing judge and cannot be raised for the first time on appeal: [227]. Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 applied Observation as to standard of review of fact-finding (10) Although the applicant asserted that there was a live question as to the standard of review where it is alleged that the sentencing judge mistook the facts, it was not necessary to resolve that issue. However, the reference in House v The King to a judge "mistaking the facts" does not involve the appeal court reviewing findings of fact, as on a rehearing: [6], [109]. House v The King [1936] HCA 40; 55 CLR 499; R v O'Donoghue (1988) 34 A Crim R 397; Hordern v R [2019] NSWCCA 138 referred to As to ground 4 - manifest excess (11) The judge was correct to find that the level of objective seriousness was very high due to (i) the incalculable harm and erosion of public trust caused by Ministerial misconduct, (ii) the law's strict enforcement of procedures for the disposal of the state's mineral resources, and (iii) the necessity for the applicant to exercise initiative in how he chose to advance the interests of the Obeid family, which was not opportunistic: [1], [96]-[99], [223]. R v Obeid (No 12) [2016] NSWCA 1815; Forrest v Wilson (2017) 262 CLR 510; [2017] HCA 30, referred to (12) No error was identified in the way the judge dealt with and dismissed the utility of the comparable sentence cases presented to her. This Court should not review those cases, as that would be an exercise to be undertaken in resentencing, and until error was demonstrated that stage was not reached: [102]. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 30, cited (13) In the alternative, the cases did not demonstrate that the sentence was manifestly excessive: [222].

JUDGMENT

1. BELL CJ: I have had the benefit of reading the separate reasons of Basten AJA and Button J in relation to Mr Macdonald's sentence appeal. I agree broadly with their Honours' reasons for judgment and, in particular, their respective observations in relation to the seriousness of the offence in respect of which the sentence was imposed. Actions utterly corrosive of public trust by a Minister of the Crown do unquantifiable damage to our democracy. I join in the orders proposed by Basten AJA.
2. BASTEN AJA: On 21 October 2021, the trial judge (Fullerton J) sentenced each of the conspirators, Ian Macdonald, Edward Obeid and Moses Obeid to terms of imprisonment. Mr Macdonald was sentenced to imprisonment for nine years and six months, commencing on the date of sentencing, with a non-parole period of five years and three months. He is presently eligible for release to parole on 20 January 2027.
3. Each of the offenders were sentenced for a single offence of conspiring to commit the common law offence of wilful misconduct in public office. Each was sentenced following a trial and therefore none had the benefit of a discount for a plea of guilty.
4. The sentencing judgment is publicly available on Caselaw: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 18) [2021] NSWSC 1343. It is therefore not necessary to repeat the detail of the judgment. Further, because there is no ground of appeal raising an issue of parity with other offenders, it is not necessary to address the sentences imposed on Mr Obeid Snr or Mr Moses Obeid. Various common issues may also be disregarded. Thus, a lengthy segment in the sentencing judgment ([107]-[150]) was directed to the state of the COVID-19 pandemic and its effects on prisons and prisoners. There is no complaint about the way the sentencing judge addressed that issue, nor is it a matter of current importance if this Court were to resentence.
5. Of the remaining grounds, there is a global challenge based on manifestly excessive sentence (ground 4) and four particular grounds which may be expressed as follows: 1. treating as an element of aggravation the absence at the formation of the conspiracy of any planning of particular acts later carried out in furtherance of the conspiracy; 2. the judge's treatment of a "statutory analogue offence"; 3. a finding that the objective seriousness of the conspiracy was "of the highest order"; 4. … 5. mistaken fact-finding on sentence.

Ground 1: circumstance of aggravation

1. Ground 1 was articulated in the following terms: "(1) The sentencing judge acted on a wrong principle in finding that the seriousness of the conspiracy was aggravated by the absence at its formation of planning of acts later carried out in furtherance of the conspiracy."
2. Put succinctly, the applicant's complaint was, in accordance with general principle, and pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"), that being "part of a planned or organised criminal activity" is an aggravating factor: par (n). However, consistently with the judge's findings, this was not such a case. Rather, it was submitted, the judge had correctly observed, with respect to Mr Moses Obeid and Mr Obeid Snr, they were "participating in the agreement in the full knowledge that Mr Macdonald would wilfully breach his Ministerial duties and obligations opportunistically …". [6] And, as the judge further stated, "the agreement contemplated that Mr Macdonald would commit acts of misconduct for the improper purpose alleged as and when the opportunity presented …". [7]
3. Some care should be taken in deriving inferences from words which have a conventional meaning and tend to be used as labels covering a class of circumstances. Thus, it is common to describe offending as "opportunistic" where there has been no planning or prior arrangement. But it is also possible to describe offending as opportunistic where there has been an agreement reached to work towards a particular outcome, but where the particular steps are to be taken as opportunity arises. In the present circumstances, it is the latter understanding which was adopted by the sentencing judge. So much may be explained by considering the last words quoted above in their context. The passage occurred in the course of a discussion of the application of the "parity principle" and must be understood in that context: "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."

Ground 2: statutory analogue

1. Ground 2 was in the following terms: "(2) The sentencing judge erred in her treatment of the statutory analogue offence."
2. In circumstances where the applicant was convicted of a common law conspiracy, and there was no statutory maximum penalty, the Court was lacking a significant guideline for sentencing. In accordance with the approach taken in other similar cases, the Court was invited to have regard to what was described as "the appropriate statutory analogue". That was said to be an offence of "abuse of public office" in s 142.2 of the Criminal Code (Cth) which carried a maximum penalty of five years' imprisonment.
3. The applicant noted that his written submissions before the sentencing judge had contended that the "closest statutory analogue for the offending conduct was the offence under s 21 of the State Records Act 1998 (NSW) which carried a maximum penalty of a fine. Although that suggestion was abandoned at the hearing before the sentencing judge, resort to the State Records Act demonstrated the absence of any relevant statutory analogue in New South Wales, and also the difficulty in giving weight to a statutory analogue.
4. While counsel for the applicant properly accepted that a statutory analogue was only "a factor which can be taken into account", [12] the purpose was described as being "to get a sense of what Parliament has indicated is the appropriate tariff for offending of that kind". [13] Where the offence charged is a common law conspiracy to commit a statutory offence, significant assistance will usually be found in the penalty provided for the statutory offence.
5. However, in pursuit of that purpose, it is difficult to understand what assistance a court can obtain in divining the unexpressed intention of the State legislature from a statutory offence created by the Commonwealth Parliament, or indeed any other parliament. As the High Court noted in Esso Australia Resources Ltd v Federal Commissioner of Taxation (Cth), [14] there was "a fundamental difficulty" in seeking to develop the common law principles of legal professional privilege in relation to the production of documents by reference to provisions in the recently enacted Evidence Act 1995 (Cth), [15] noting that some legislatures in Australia had enacted legislation which differed in a number of respects from common law principles but other legislatures had not. The plurality observed: "In such a setting, there is no consistent pattern of legislative policy to which the common law in Australia can adapt itself. The fragmentation of the common law implicit in the qualification that such adaptation should occur only in those jurisdictions in which the Evidence Act applies is inconsistent with what was said in Lange, and is unacceptable."

Ground 3: assessment of objective seriousness

1. Ground 3 focused upon four words in a 278-paragraph sentencing judgment. It read as follows: "(3) The conclusion that the objective seriousness of the conspiracy was 'of the highest order' was not open to the sentencing judge."
2. In written submissions, the applicant contended that the "formulation is tantamount to a finding that it is in the worst case [category?] of offending of this kind". [16] The offence was therefore categorised as being at a level of offending which, if subject to a statutory maximum penalty, would justify the imposition of the maximum penalty.
3. The applicant relied upon The Queen v Kilic, [17] in which the High Court was critical of the description of offending conduct by the Victorian Court of Appeal as being within "the worst category" of the offence. That categorisation was said to equate with "an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty". As the Court noted, there are not only difficulties with using that categorisation, but also in the converse, namely that the case in question is "not within the 'worst category'". [18] As the Court also noted, the Court of Appeal "used that expression in the sense of an instance of the offence of intentionally causing serious injury towards the upper end of the range of seriousness", so that the point was without relevance. [19] Indeed, there was some irony in the Court of Appeal using that term in circumstances where it reduced the sentence imposed by the sentencing judge, as the High Court found, without justification.
4. Three points should be made with respect to this ground. First, the judge did not in fact use the phrase "the worst category", so that it is far from clear that she was proposing that some maximum available penalty for the offence was appropriate. Secondly, as Kilic itself demonstrated, use of language consistent with categories of offending, may be no more than hyperbole and error will depend upon what the sentencing judge in fact did. Thirdly, and quite apart from Kilic, it is usually futile to quote four words out of context and assert that they demonstrate a material error.
5. Fourthly, the discussion in Kilic was not limited to the element of objective seriousness. The Court discussed the phrase "worst category" as being used to describe an offence which warrants the imposition of the maximum penalty by reference to both "the nature of the crime and the circumstances of the criminal". [20] As will be observed, the impugned words used by the sentencing judge addressed only the objective seriousness of the offending. They could not, therefore, involve a determination that the offenders would be sentenced to some inchoate "maximum penalty".

Ground 5: mistaken findings of fact

1. It is convenient to deal with this ground before ground 4 (manifest excess) as was done by counsel in oral argument. The ground was articulated in the following terms in the amended notice of appeal: "5 The sentencing judge erred in that her Honour mistook the facts. Particulars (a) Her Honour mistook the facts in finding the first unparticularised misconduct proven. (b) Her Honour mistook the facts in finding the fourth misconduct proven. (c) Her Honour mistook the facts in finding the seventh misconduct proven. (d) Her Honour mistook the facts in finding the eighth misconduct proven."
2. On the face of the ground, it appeared to be consequential upon a finding that the judge had erred in reaching her verdict and that one or more of the particulars identified in (a)-(d) had not been made out, but that the offence of conspiracy was nevertheless to be upheld. The apparent inference was that in such a circumstance the applicant's culpability would be reduced and accordingly there would be a consequential basis for reconsidering the sentence. If that were the scope of ground 5, the precondition to engagement has not been made out (the trial judge's findings in the judgment on verdict being upheld).
3. However, the written submissions sought to raise a further point, namely that to the extent that the findings were not necessary integers in the finding as to guilt, they did not need to be established beyond reasonable doubt and, indeed, the trial judge had acknowledged that some were not. It was then submitted that if they were to be relied upon in the sentencing exercise, adversely to the applicant, the judge needed to find, contrary to the findings in the judgment on verdict, that they were indeed proven beyond reasonable doubt. However, the judge did not revisit those findings of fact and therefore mistook the facts in taking them into account on sentence.
4. It is said that the appropriate standard of review in establishing error in that respect is a correctness standard and not higher standard envisaged by House v The King. [27] It was accepted that the last proposition was subject to differing authorities in this Court.
5. The first proposition should be rejected and the second appears to have been based upon a false assumption which need not be resolved but should be identified.

Fact finding for sentencing

1. The general principle that the sentencing judge must not take into account matters adverse to the offender, which have not been established beyond reasonable doubt, is well-established. However, its operation is not without difficulties. Indeed, different issues can arise depending upon whether the relevant conviction follows from (i) a plea of guilty, (ii) the verdict of a jury, or (iii) the verdict of a judge sitting without a jury.
2. In the case of a guilty plea, the judge will often sentence upon a statement of agreed facts. However, there may be matters relevant to the sentence which are not the subject of agreement and about which there is no evidence. The Queen v Olbrich [28] was such a case. The offender had been convicted on his plea of importing 1.1 kilograms of heroin. He gave evidence that he was a courier, but was disbelieved. The High Court held that it would be wrong to sentence him on the basis that he was a principal, but equally "incongruous" to require him to be sentenced on the basis that he was a courier. [29] Where a particular fact is not known, namely the role the offender played in the importation, beyond the fact that the drugs were found in his physical possession, the judge should sentence without making a finding as to the role.
3. In relation to an offender convicted after a trial by jury, the judge must sentence on a view of the facts consistent with the verdict of the jury. [30] As the joint reasons of Gleeson CJ, Gummow and Hayne JJ in Cheung v The Queen further explained: "5 The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and insofar as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace."
4. The important qualification to that proposition was expressed in the following terms: "7 It is necessary to distinguish, not only between questions of guilt and questions of degree of culpability, but also between issues, facts relevant to issues, and evidence. The jury's verdict decided the issues joined by the plea to the indictment. It did not decide, either expressly or by implication, all facts of possible relevance to sentencing. And although it is possible to infer that, at the least, certain parts of the evidence must have been accepted by the jury, it is impossible to know whether some or all of the jurors accepted all of the evidence relied upon by the prosecution. Jurors are normally instructed that they are entitled to choose between parts of the evidence. In order to convict they must find, beyond reasonable doubt, the constituent elements of the offence charged, but, provided they reason to such a conclusion in a manner consistent with properly framed judicial directions, their process of reasoning does not necessarily have to be unanimous. Unless a particular piece of evidence is logically crucial to the prosecution case, they do not have to accept, beyond reasonable doubt, any particular witness, or any particular evidence. These are familiar aspects of what is sometimes described as the inscrutability of a jury verdict. 8 On occasion, this may mean that a jury's verdict on the black and white issue of guilt may leave to a sentencing judge a difficult task of deciding questions of degree involved in assessing an offender's culpability, and the proper measure of punishment. There are many cases involving either a plea of guilty, or a conviction following a plea of not guilty, where the task of assessing an offender's culpability is more difficult than that of determining his or her guilt."

Ground 4: manifest excess

1. It follows from what has been set out above, that the success or failure of the applicant's challenge to the sentence imposed by the sentencing judge must turn upon whether it can be said to have been manifestly excessive: that is the issue raised by ground 4.

Objective seriousness - standard of review

1. As explained above, it is convenient to deal with the findings as to the objective seriousness of the offending under this ground. However, in doing so it is necessary to address a proposition put by the applicant in written submissions to the effect that the constrained approach identified in Mulato only applies where a "specific error as to objective seriousness is asserted" and does not apply where it is simply an element in assessing whether the sentence was manifestly excessive. That is, even if the Court were satisfied that the assessment of objective seriousness was open to the sentencing judge and was not attended by any error of the kind discussed in House v The King, it could nevertheless reach a different conclusion from the trial judge in determining whether the sentence was manifestly excessive.
2. That would be a surprising, and arguably anomalous, result. Whether the submission is correct turns upon a statement by the High Court in Carroll v The Queen. [31] Mr Carroll, following a verbal altercation, had headbutted the victim in the face, causing him to fall backwards and hit his head. He later died of his injuries. Mr Carroll was charged with manslaughter, to which he pleaded guilty. He was sentenced by Flannery DCJ to a three-year term, with the non-parole period being served by way of periodic detention. The Director of Public Prosecutions appealed on the sole ground that the sentence was manifestly inadequate. This Court (by majority) upheld the appeal and required that the non-parole period be served in custody. The High Court noted that the division of opinion in this Court had turned upon "differing assessments of the objective gravity of the offence". [32] As to the nature of the appeal, the Court stated: "7 It has long been established that '[i]nadequacy of sentence, an expression not found in the Criminal Appeal Act … is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed'. Rather, as pointed out in Dinsdale v The Queen, error must first be identified by the appellate court. And as was held in House v The King, an appeal against an exercise of discretion, in this case a sentencing discretion, is governed by established principles."
3. The Court observed that the particular principle which the Director sought to invoke was the last category identified in House v The King at 505, namely that: "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

Objective seriousness not of the highest order

1. Putting aside the specific expression which was criticised, it is convenient to focus on four matters identified by the applicant in support of its submissions on ground 3 (which it repeated with respect to ground 5) each of which was relied upon to diminish the objective seriousness of the offending.

Role of a Minister

1. First, the following propositions from the judgment of Beech-Jones J in R v Obeid (No 12), [35] discussing the absence of clearly comparable cases dealing with a parliamentarian, were relied on: "79 These cases illustrate the variety of public officials who can commit the offence of wilful misconduct in public office and the variety of circumstances that can constitute the crime. These cases also illustrate that matters such as the period of the offending, the planning involved, its motivation and the direct loss occasioned or profit derived are all matters that bear upon an assessment of the level of criminality involved. However, the essence of the offence concerns a breach of trust in the form of a deliberate or reckless breach of a duty owed by a public official to the public (see DPP v Marks supra at [4]; HKSAR v Wong Kwong Shun Paul [2009] 4 HKLRD 840 at [44] per Yeung JA; Question of Law Reserved (No 2 of 1996) 1996 67 SASR 63 at 66 per Doyle CJ). It must follow that a very significant matter to any assessment of the level of criminality involved is the nature of the duty that is owed and the extent of the breach. The more senior the public official the greater the level of public trust in their position and the more onerous the duty that is imposed. Under this State's constitutional arrangements, and leaving aside the third arm of government, only Ministers occupy a more senior position than that occupied by parliamentarians."
2. It will be appropriate to return to the question of comparative sentences shortly; the objective seriousness of corrupt conduct on the part of a Minister of the Crown is difficult to overstate.

No benefit to applicant

1. Secondly, the applicant submitted that the prosecution's failure to demonstrate any advantage to the applicant's personal interests, through pursuing the course he did, removed what was usually a critical issue in such cases. The applicant noted the taking of bribes by a Minister for Corrective Services in Jackson v R; Hakim v R [36] and in R v Nuttall; ex parte Attorney-General (Qld). [37]
2. Further, the applicant called in aid the refusal of the sentencing judge to make any finding as to any particular financial or other benefit accruing to him from his conduct. The judge had stated: "81 In R v Phillip Hans Field HC Auckland CRI-2007-092-18132, 6 October 2009 ('Field') a member of the New Zealand Parliament was sentenced to concurrent sentences of four years imprisonment on each of eleven counts of bribery and corruption (at [89]). In his capacity as a parliamentarian, the offender had proffered advice and assistance to various trades people while accepting benefits from them in the form of work done on his properties (at [5]). In R v Bruneau, 1963 CarswellOnt 22; [1964] 1CCC 97; [1964] 1 OR 263, 42 CR 93 ('Bruneau') a member of the Canadian Parliament who receive a corrupt payment to use his influence to have the Federal Government purchase the payer of the bribe's property was resentenced to imprisonment for five years following a successful Crown appeal against the imposition of a suspended sentence."
3. The matter that the applicant took issue with in this passage was the finding that the absence of personal benefit, as a motive for the misconduct, was not a mitigating factor. At the least, it was submitted, the absence of such a motive removed the case from the category of misconduct of the highest order. As has been noted above that was a false issue.
4. The applicant noted that the sentencing judge had accepted, in principle, that "[c]onsiderations of what motivated each of the offenders to enter into the conspiracy bear most directly upon an assessment of their criminal culpability". [38] That statement was true as a general proposition, but the fact that one of the conspirators (even the one bearing responsibility for the ultimate breach of public trust) did not benefit, is of limited significance where, as the sentencing judge also found, "[i]t 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". [39] That the purpose of the criminal conspiracy was to provide substantial financial benefits to two of the conspirators is a circumstance which must be relevant to the culpability of the conspirator responsible for making the financial benefits available. The fact that the applicant himself received no tangible benefit is of some, but limited weight. It is clear that the sentencing judge dealt with it in this way.

Advancing the interests of the Obeids

1. The applicant accepted that "[t]he extent to which [his] conduct advanced the interests of Moses Obeid and Edward Obeid informs the extent of the breach of impartiality during the conspiracy". [40] However, the applicant submitted that his conduct in that regard was limited. He did not determine the outcome of the competitive tender process for coal release areas, nor did he attempt to guarantee the Obeids' success in pursuing their personal interests.
2. Both of these statements may be accepted, as may be the proposition that, had the applicant done more than he in fact did, the level of his culpability might have been greater. However, that consideration is also of limited weight. The Obeid family had no interest in mining, let alone coalmining. The Obeids did not seek to participate in the competitive process. In broad terms, the two benefits which they were able to exploit were, first, the release of an area which included their farm and, secondly, early information as to the parties who were involved in the tender process, with whom they were able to enter into joint ventures.

Public harm

1. In this respect, the applicant submitted that "[t]he extent to which the public objects of [his] office were denigrated must necessarily be assessed by reference to the public harm caused, not only by reference to the undermining of public confidence in the office he held, but to the actual harm caused by the misconduct". [41]
2. To the extent that this submission was merely directed to the proposition that a greater public harm might have resulted and thus a more serious level of culpability achieved, that may be accepted. However, as already explained, it was no part of the sentencing judge's reasoning that this was in the "worst case" category, nor that more extreme cases might not be postulated. On the other hand, the submission, in its terms was not so limited. It implied that undermining public confidence in his office was not itself a form of "actual harm"; further, it implied that any harm to public confidence was limited to the administration of the mining and resources portfolio. Neither proposition should be accepted. Rather, as was put to counsel in the course of submissions: [42] "But there can be extremely serious harm effected which is intangible, which doesn't carry a financial [cost] to the public purse, but nonetheless completely corrodes trust in Government. The institutional damage in terms of respect for institutions, respect for public servants, respect for politicians et cetera, is of that intangible kind but it couldn't be written off as something which is not very serious. Indeed, if you had a corrupt judge, he or she might not cost the state anything but the damage to the institution would be vast. I mean that's the particular character of this offence, is it not?"
3. Counsel immediately responded: "Absolutely your Honour. That is the gravamen of the offence and that is why I prefaced my submission by acknowledging the considerable public harm that can be caused by offending of this kind."
4. The importance of the fact that misconduct was undertaken by a Minister has been noted above, by adopting the reasoning of Beech-Jones J in R v Obeid (No 12).

Scope of the conspiracy

1. The further subheading relied on in ground 3 in addressing the objective seriousness of the offending, suggested that the sentencing judge had taken the view that "the conduct contemplated by [the applicant] at the formation of the conspiracy was unlimited in scope on the basis alone that its scope was never properly delineated". [43]
2. The underlying implication of the submission was that the trial judge misapprehended the nature of the conspiracy for which she had convicted the applicant. However, in the course of her sentencing judgment she restated the scope of the conspiracy on a number of occasions in uncontroversial terms. The two passages relied upon in support of this submission were as follows. First, at [41], the judge described the case as one "where the unlawful object of the conspiracy contemplated an extended process of execution actioned by [the applicant] at his discretion".
3. That statement did not envisage a conspiracy of unlimited scope. Rather, it was clear that the conspiracy had a limited or confined purpose, but one which contemplated an extended process of execution. That description reasonably encapsulated the facts of the case. Further, it may be observed that the statement was made in a context where the judge was not discussing the culpability of the applicant, but how she would assess the culpability of his co-conspirators.
4. The second passage relied upon in support of the particular challenge was the passage in the sentencing judgment at [84], set out at [11] above. Again, this passage was one of a number which, in varying terms, the judge identified the gravamen of the conspiracy. It did not demonstrate factual error, nor any misunderstanding as to the scope of the conspiracy.

Objective seriousness - conclusion

1. No basis has been established for the proposition that the sentence imposed was unreasonable or plainly unjust because the judge had assessed the objective seriousness of the offending at a level which was not open to her. Whatever words one would seek to apply in summing up a complex evaluative process, there is no doubt that the judge was correct to assess the objective level of seriousness as very high. There are, in substance, three reasons why the judge's finding as to the high level of objective seriousness attaching to the conspiracy should be accepted as not merely open, but correct.
2. The first is that, as explained by Beech-Jones J in R v Obeid (No 12) while there are many levels of officers who may engage in misconduct in public office, Ministers of the Crown are at the highest level. Public trust in governmental institutions may be diminished by episodic misconduct by minor officers, but the public harm which can be caused by misconduct at the highest level is incalculable, in part because others will tend to take their cue from the behaviour considered acceptable by their leaders.
3. Secondly, as the High Court observed in Forrest v Wilson [44] , the law has always required strict compliance with procedures where the State is disposing of a part of the State's mineral wealth. It must follow that corrupt behaviour in relation to the disposal of those resources is of particular concern.
4. Thirdly, the conduct of the applicant, pursuant to the agreement, required that he exercise his initiative in deciding how best to advance the interests of the Obeid family as steps were taken for release of the area for mining tenements over a period of some months. In that sense, his conduct was not opportunistic, but involved active steps taken as circumstances permitted, in accordance with a broad plan which he was instrumental in putting into operation.

Personal circumstances of applicant

1. In order to demonstrate that the sentence was manifestly excessive, the applicant sought to rely upon findings made by the sentencing judge as to his personal circumstances, which were generally favourable to him. That exercise might be relevant if the Court reached the point of resentencing the applicant: at this point, the question is whether the trial judge misapprehended the facts or made findings which were not open to her, and that was not suggested in this respect.

Comparable sentences

1. The applicant accepted the principles stated in Wong v The Queen [45] to the following effect: "58 … Secondly, there is the residuary category of error [identified in House v The King] which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It follows that for a court to state what should be the range within which some or all future exercises of discretion should fall, must carry with it a set of implicit or explicit assumptions about which is, or should be regarded as, the kind of case which will justify a sentence within the specified range. It is those assumptions that may reflect or embody relevant principle, not the result."
2. The cases discussed in some detail in the applicant's written submissions were Jackson and Hakim, Nuttall and Obeid (No 12). Again, it was assumed that the exercise to be undertaken in establishing manifest excess required that this Court consider for itself degrees of similarity and disparity. It may be that that is an appropriate course where the sentencing judgment fails to disclose how the judge dealt with supposedly comparable cases. However, that is not this case. In referring to the table of comparative cases provided by the prosecution, the judge observed that "none of [them] concern[s] a common law conspiracy to commit the common law offence of misconduct in public office". [46] Nevertheless, the judge did note and endorse observations of Muir JA in R v Nuttall, a case involving a Minister convicted of multiple counts of official corruption contrary to s 87 of the Criminal Code (Qld), and of Lee J in Jackson and Hakim, each of which passages endorsed the onerous responsibilities placed on Ministers in protecting respect for and confidence in institutions critical to the good order of government and society. [47]
3. The judge extracted from the cases to which she had been referred a number of principles at [181]. She found, however, the cases were "of only very limited assistance and do not provide any useful sentencing pattern or range". [48] There was no challenge to any aspect of the manner in which the sentencing judge dealt with the comparable cases presented to her, and it appears to have been accepted that she addressed those most relevant to the exercise in the reasons referred to above.

Conclusions as to manifest excess

1. The summary of the applicant's submissions on this ground commenced with a reference to a statement by the sentencing judge in the course of submissions that a critical preliminary question was "a notional starting point for the sentence". It was said that the sentencing judgment made no finding as to that critical question.
2. The question stated in the abstract was misleading; the question properly understood was answered.
3. The abstract question suggested that the judge was about to engage in a form of two-tier sentencing. However, in the very same passage the judge disavowed two-tier sentencing, and sentencing from top down or bottom up, and affirmed she would conduct the process of "instinctive synthesis". [49] Rather, what the judge had in mind was determining a point which answered the requirement of s 5(1) of the Sentencing Act that no alternative to a sentence of imprisonment was available. That is clear from the further statement that she was required to deal with a submission from Mr Obeid Snr and Mr Moses Obeid seeking a "non-custodial alternative". [50] As has already been noted, the judge dealt with that submission of the Obeids by concluding that a non-custodial sentence was not appropriately available.
4. While in a case involving a significant penalty of imprisonment for nine years and six months, for a common law offence with no statutory maximum, and where there is no range established by comparable cases, it is appropriate to grant leave to appeal with respect to this ground. Nevertheless, the ground must be rejected.

Standard of review

1. It is not necessary to enter on the debate as to the appropriate standard of review of fact-finding upon sentence. It is sufficient to note that each category of specific error identified in House v The King is to be established on a correctness standard; one of those errors is identified as mistaking the facts. That exercise does not open up findings of fact generally to re-evaluation of the evidence as on an appeal by way of re-hearing; rather it operates at the level of identifying a clear mistake of a material fact that the court would have corrected if the error had been drawn to its attention. As with a finding that the sentencing court has taken into account an impermissible consideration, or erred in law by applying the wrong maximum penalty, the exercise for the appellate court involves no discretionary decision, as in the fixing of the appropriate sentence.

Orders

1. The Court should make the following order: 1. Grant leave to appeal with respect to grounds 4 and 5 in the applicant's amended notice of appeal. 2. Dismiss the appeal with respect to grounds 4 and 5. 3. Otherwise refuse leave to appeal.
2. BUTTON J: Only Mr Macdonald sought leave to appeal against sentence. The sentencing judgment is to be found at R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 18) [2021] NSWSC 1343. I proceed to summarise those portions of it relevant to him, and to his grounds of appeal.

Aspects of sentencing judgment

1. Her Honour began by noting that both parties had filed documentary evidence, but neither party relied upon any oral evidence on sentence. There were also comprehensive written and oral submissions provided.
2. The learned sentencing judge noted that extensive reasons were given for the verdicts of guilty, and that they included "a range of interrelated factual findings contextual" to satisfaction to the criminal standard of the existence of the conspiracy, and the participation of Mr Macdonald in it: at [14] of the sentencing judgment.
3. At [16], her Honour accepted that an adverse factual finding that concerned objective seriousness or the culpability of an offender that had not been "comprehended" by the verdict judgment, or expressly stated within it as having been established to that standard, would require satisfaction beyond reasonable doubt.
4. Her Honour referred to the well-known purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSPA) and emphasised in this case the need for adequate punishment, making each offender accountable for his actions, denunciation, recognising the harm done to the community, and general deterrence.
5. Her Honour recorded that it was conceded for each offender that the offence was "objectively serious", and that general deterrence and denunciation were to be given "predominant weight": at [20].
6. A submission for Mr Macdonald that alternatives to imprisonment were available as sentencing options, and a submission contingent on rejection of the first that an intensive correction order was available, were recorded. I interpolate that those submissions were wholly inapposite given the nature of the offending.
7. At [29], her Honour spoke of having assessed "the objective seriousness of the offending comprehended by the conspiracy as of a very high order".
8. Her Honour went on to note: that an assessment of objective seriousness was "fundamental to this sentencing exercise"; the absence of a maximum penalty, both for the common law offence of misconduct in public office, and the offence of conspiracy to commit such an offence; the correctness of a submission that the offence of conspiracy focuses upon the agreement to commit acts pursuant to that agreement, not upon the acts themselves; the relevance even so to the sentencing of Mr Macdonald of the acts done by him pursuant to the offence; and, on the other hand, the need to ensure that such an offender not be "further penalised" for such acts: at [30] to [41].

Grounds of appeal

1. By the conclusion of the hearing, Mr Macdonald sought to rely upon five grounds of appeal against sentence: Ground One: The sentencing judge took into account an irrelevant consideration, namely, that the seriousness of the conspiracy was aggravated by the absence at its formation of planning of acts later carried out in furtherance of the conspiracy. Ground Two: The sentencing judge erred in her treatment of the statutory analogue offence. Ground Three: The conclusion that the objective seriousness of the conspiracy was "of the highest order" was not open to the sentencing judge. Ground Four: The sentence was manifestly excessive. Ground Five: The sentencing judge erred in that her Honour mistook the facts. Particulars 1. Her Honour mistook the facts in finding the first unparticularised misconduct proven. 2. Her Honour mistook the facts in finding the fourth misconduct proven. 3. Her Honour mistook the facts in finding the seventh misconduct proven. 4. Her Honour mistook the facts in finding the eighth misconduct proven.
2. I turn to determine them in that order.

Ground one: The sentencing judge took into account an irrelevant consideration, namely, that the seriousness of the conspiracy was aggravated by the absence at its formation of planning of acts later carried out in furtherance of the conspiracy.

Written Submissions

1. It had been submitted on behalf of Mr Macdonald in the sentence proceedings that the conspiracy was "vague and lacking a specific goal." This, it was argued on appeal, lessened the objective gravity of the offending.
2. The Crown, on the other hand, submitted that the improper purposes to which Mr Macdonald's acts of misconduct were directed were unambiguous from the outset, despite the perceived generality of the terms of the conspiracy, in terms of precisely what was to be done in accordance with it.
3. Counsel for Mr Macdonald took issue with the findings of the sentencing judge that I have extracted. It was argued that, although the content, duration and reality of the conspiracy may be reflected on in her Honour's assessment of objective gravity, it was erroneous for her Honour to have considered that the absence of forethought or planning at the formation of the conspiracy aggravated the seriousness of the offending.
4. It was submitted that a conspiracy founded upon an agreement to take specifically defined steps, and to follow a sophisticated and extensively plotted plan to achieve a specified aim, ought to be regarded as of greater criminality than an inchoate, highly generalised conspiracy with the same aim. In support of this claim, counsel for Mr Macdonald pointed to the statutory inclusion of "planned or organised criminal activity" as an aggravating factor in s 21A(2)(n) of the CSPA.
5. In the present case, the acts committed in furtherance of the conspiracy were not contemplated at its formation. Rather, they were opportunistically committed at a later stage. This absence of foresight and planning, it was submitted, should have been viewed as a mitigating, or neutral, factor by the sentencing judge: Wood v R [2019] NSWCCA 309 at [108]; see also s 21A(3)(b) of the CSPA.

Oral submissions

1. Oral submissions for Mr Macdonald emphasised the sentencing judge's acceptance that Mr Macdonald only agreed to breach his obligations "opportunistically". It was submitted that there was an inconsistency, or incoherence, in her Honour finding that the objective seriousness of the conspiracy had been aggravated by the fact that no steps were contemplated at the time of its formation, and that all later acts of misconduct were purely opportunistic.
2. Counsel for Mr Macdonald took issue with the sentencing judge assertedly considering the absence of planning to be a feature of the conspiracy which made it more serious than it would have been if there had been a clear object, and clear steps, contemplated at the outset.
3. It was conceded that a true absence of planning was different to an opportunistic readiness to put into effect an agreed upon offence. However, it was argued that the objective seriousness of a conspiracy must be determined based on what is contemplated at its formation. A defined agreement with a precise plan to achieve a specific outcome is more serious, it was said, than an open-ended agreement with no way contemplated to achieve a highly generalised goal.

Determination of Ground One

1. Respectfully, this ground is misconceived, as submitted by the Crown on appeal, as follows.
2. At no time did her Honour find that the conspiracy was made more serious by the fact that it was to be put into effect opportunistically, as opposed to it featuring minute planning as to precisely what was to be done in accordance with it. Nor did counsel for Mr Macdonald point to any part of the sentencing judgment in which it was said that the opportunistic implementation of the conspiracy was an aggravating feature. What her Honour did accept was that an aspect of the criminal agreement was that, when he had the opportunity to do so, Mr Macdonald would take steps to favour corruptly the financial interests of the Obeid family, members of which were his associates. That finding of fact was undoubtedly relevant to the assessment of objective seriousness.
3. In other words, in my opinion the ground fails at an early stage, because the sentencing judge did not do what the ground asserts she did.
4. Secondly, by its nature, a conspiracy to commit an offence is an agreement between two or more persons to commit a crime. That agreement is the nub of the offence. It encompasses the shared intention that a crime will be committed. In my opinion, it is not easy to see how the statutory aggravating feature of "planning" can readily be applied or dis-applied to the offence of conspiracy.
5. Thirdly, and in any event, as for reflection about whether a conspiracy to commit a criminal offence opportunistically, but repeatedly, is more or less serious than a conspiracy to commit a criminal offence on one precise occasion, the debate is an arid one, in the context of an exercise in instinctive synthesis. That is because matters for sentence very largely turn on their own facts, with the result that laying down general rules - such as the one contended for by Mr Macdonald - is very often inapposite.
6. I would reject this ground.

Ground two: The sentencing judge erred in her treatment of the statutory analogue offence.

Written submissions

1. It was said in writing that the fact that misconduct in public office is a common law offence without a maximum penalty deprives a sentencing court of an essential "yardstick". It was also said that it is well-established that a sentencing court should look for an analogous statutory offence that could act as a "reference point" in that regard: for a recent discussion of the principle, see R v Obeid (No 12) at [62]-[64]; citing R v Hokin, Burton and Peisely (1922) 22 SR (NSW) 280 at 291; Jaturawong v Regina [2011] NSWCCA 168 at [5]; Blackstock v Regina [2013] NSWCCA 172 at [8]-[11].
2. It was said that the statutory analogue provides the missing "yardstick" spoken of in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31].
3. The older authority of R v White (1875) 13 SCR (NSW) 322 was relied upon for the proposition that statute can be looked at when considering common-law offences to ensure that sentences "bear some proportion to the punishments fixed by statutes": at 344.
4. It was also said that adopting that course serves an important principle, in that consistency in sentencing offenders who have, broadly speaking, engaged in the same criminal conduct is achieved, and the law is not brought into disrepute.
5. Two concessions were made about that process, however. The first was that sentencing for a common law offence remains at large, with the result that no statutory analogue "could operate to set a ceiling for punishment for the common law offence".
6. Separately, one would never expect "a perfect correspondence" between the common law offence and the asserted analogue.
7. As for the latter proposition, it was said that the extent of equivalence between the two offences will determine, to a large degree, "the extent to which it is appropriate (if at all) to depart from the maximum penalty imposed by the statutory analogue".
8. Turning to the proceedings on sentence here, it was submitted that both parties agreed that the appropriate analogue was the Commonwealth offence. The point was made that, although what was under consideration here was a conspiracy to commit a common law offence, the statutory analogue could still have work to do, because of the corresponding existence of conspiracy under the Commonwealth Code.
9. In the sentencing judgment, her Honour, it was said, had concluded "that a departure from the maximum penalty of the [Commonwealth] offence was justified", on the basis of asserted differences between the elements of the statutory offence and the common law offence. Two differences, it was said, had been relied upon: the distinction between "acting dishonestly" in the Commonwealth offence, and "misconducting oneself" in the common law offence. It was said that the latter included the former. The ultimate submission was that the mental elements of the two offences "are - for all intents and purposes - coextensive".

Oral submissions

1. Orally, counsel for Mr Macdonald conceded he did not know the basis upon which the Commonwealth offence of misuse in public office was selected as the statutory analogue at sentence. It was noted that the parties at sentence had clearly accepted the analogue used by her Honour.
2. When asked whether, if it was erroneous for the sentencing judge to look to the Commonwealth offence, and whether, if no New South Wales offence could be identified as analogous, the doctrine could apply at all, counsel for Mr Macdonald submitted: PARKIN: It may well be if there is not a statutory analogue that can be identified. If the Court were of the view that one cannot go beyond the borders of New South Wales to look for an analogue and you were confined within the State to look for an analogue and there is not an offence which is suitably analogous then it may well just be that the Court is deprived of an analogue in those circumstances or the Court was able to look at a number of different offences which had similar characteristics but were not in and of themselves a clear indication and the Court could then form a view about what the appropriate tariff was by looking at those different maximum penalties and synthesising a result, that is a possibility, I accept that.
3. Moving to discuss the way in which the chosen analogue was used by the sentencing judge, counsel for Mr Macdonald emphasised that her Honour, in considering the Commonwealth offence, gave less weight to the statutory analogue on an erroneous basis, namely the fact that the definition of "public official" in the Commonwealth offence was broader than that of the common law offence. It was emphasised that the definition of "public official" in the Commonwealth provision already contemplated Mr Macdonald's position as Minister. Consequently, the offending of a Minister was contemplated by that statutory offence. This was not, on Mr Macdonald's submissions, a proper basis upon which the sentencing judge could give the analogue less weight during sentencing.

Determination of Ground Two

1. In my opinion, this ground is based on a false premise. That is because, as I have shown, it assumes that it was incumbent upon the sentencing judge to provide reasons for "moving away" from the maximum penalty of the asserted statutory analogue in reflecting upon the appropriate sentence for a common law offence with no maximum penalty. Because reasons for that movement were, it was said, erroneous or inadequate, the sentencing discretion miscarried.
2. But it is not the law that, when considering a statutory analogue, a judge sentencing for a common law offence must provide reasons for moving away from the maximum penalty of the former.
3. On the contrary, as I have shown, the ultimate outcome was that her Honour came to the view that, even taking into account the Commonwealth offence to some degree, her sentencing discretion was "unfettered". That approach was, with respect, correct, and consistent with the authority of this Court stretching back over 100 years and commencing with R v Hokin at 291 ff. The submission now made that, having identified a statutory analogue, one must provide reasons for moving away from its maximum penalty, is inconsistent with that authority. And, if that were the law, it would undermine significantly the fact that one is sentencing not for the statutory analogue, but for an entirely separate offence, for which Parliament has determined not to impose a maximum penalty.
4. In my opinion, that fundamental problem in the submission for Mr Macdonald is sufficient to dispose of the ground. It means that I need not go on to consider at length the subsidiary question of whether a statutory offence from another jurisdiction - whether within or outside Australia - can be an analogue for a common law offence being prosecuted in New South Wales. In that regard, counsel for Mr Macdonald did not point to any decision of this Court in which that approach had been explicitly endorsed (though I appreciate that it was spoken of in Obeid v R [2017] NSWCCA 221 at [366]-[367]).
5. Nor do I consider it necessary to discuss at length the many differences between the Commonwealth offence and the common law offence that rendered the former - even if it were in some sense analogous to the latter - of negligible value, in my opinion, in providing an indirect "yardstick". They include: the differences between the principles of criminal responsibility in Chapter 2 of the Commonwealth Code, and those of the criminal law of New South Wales; the differences between the mental elements of the Commonwealth offence and the common law offence; the differences between conspiracy contrary to the Commonwealth Code and conspiracy at common law; and the fact that, for whatever reason, the maximum penalty of the Commonwealth offence patently fails to encompass the potential gravity of the common law offence, as exemplified by the offending of Mr Macdonald.

Ground Three: The conclusion that the objective seriousness of the conspiracy was "of the highest order" was not open to the sentencing judge.

Written submissions

1. Written submissions accepted that Mr Macdonald's role within the conspiracy was objectively serious. However, issue was taken with the sentencing judge's determination that the objective seriousness of the offending was "of the highest order": at [77].
2. It was accepted that Mr Macdonald held high public office at the time of the offending, and he was subject to duties of impartiality, and confidentiality, in the service of the general public. It was also accepted that conspiracy to commit wilful misconduct in this position is certainly serious, because "it denigrates the public objects of that office".
3. It was submitted, however, that Mr Macdonald had no actual or expected advantage to be gained from the conspiracy. Her Honour's finding that the offending reached "the highest order" in the absence of any finding that Mr Macdonald was driven by self-interest, or the prospect of personal gain, should be considered erroneous.
4. It was further submitted that the assistance provided to Moses and Edward Obeid fell well short of the kind needed to guarantee their success, and what his powers permitted him to do. Although Mr Macdonald had power under the Mining Act 1992 (NSW) to issue directions to the Department to create new coal release areas, or to grant coal exploration licences without the need for an expression of interest (EOI), he was not found to have done so. Mr Macdonald, contrary to the interests of the Obeids, directed the Department to involve more companies in the EOI, and allowed more companies to apply in the tender process. Mr Macdonald did not determine the outcome of the tender process, and it was never suggested the assessment of bids had been interfered with in any way.
5. Additionally, it was said that no actual injury to the public had been occasioned by Mr Macdonald's actions. Though there might be said to have been harm to the institutions of government itself, the conspiracy did not cause any economic harm to the public.
6. It was also not open, so it was said, for the sentencing judge to find that the conduct contemplated by Mr Macdonald at the formation of the conspiracy was unlimited in scope. There was no support for her Honour's view that the conspiracy would be furthered without restraint; on the contrary, there were many points at which Mr Macdonald could have taken steps to further the conspiracy, but did not.

Oral submissions

1. During oral submissions, counsel argued that the sentencing judge's description of objectiveness seriousness as that "of the highest order" unambiguously indicated that the offending was of the "worst type".
2. The notion of Mr Macdonald's offending being of the highest order was firmly resisted. Counsel for Mr Macdonald stated: PARKIN: … There is a number of matters which we suggest indicate that this was not a finding which was open in the circumstances. I think the clearest of those is the absence of any motive and the absence of any finding as to motive. Motivation is where there is a demonstrated personal or financial interest that motivates the offending, that is almost always a worst case of the offending than others … I think the other point is, as well, this was a conspiracy to commit misconduct in public office as found by her Honour which did not result in - I should be clear when I say this, I am not suggesting that there isn't a grave breach of public trust which is created by the commission of an offence like this. However, there is not demonstrated harm in a financial or fiscal sense to the state of New South Wales arising out of that, and that's a matter which we say you would expect to see present, given the kind of offending; we're talking about the provision of a right to explore and potentially exploit the resources of the state of New South Wales for commercial benefit.
3. It was submitted that the conspiracy could have involved grave financial consequences to the State, in addition to the breach of public trust. However, it did not. Much of the evidence at trial, rather, indicated that there were good reasons to the public benefit for selling off the parcels of the State's resources. It was argued that this fact ought to place Mr Macdonald's criminality in a category below that of the highest order.

Determination of Ground Three

1. The phrases describing objective seriousness adopted by her Honour were "of a very high order", and, ultimately, "of the highest order": at [29] and [77]. Not only do I believe that those evaluations were open to the sentencing judge, but I also believe that they were correct, for the following reasons.
2. First, it is well-established that the evaluative judgement of objective seriousness is peculiarly within the remit of a sentencing judge, and will be interfered with by this Court only in circumstances of clear error.
3. Secondly, I do not believe that those phrases used by her Honour were intended to be synonymous with "the worst class of case". Nor do I believe that they are, in fact, synonymous. That phrase has a particular meaning within criminal law, and if the sentencing judge had arrived at that characterisation, I believe that she would have said so. Furthermore, one would have expected a lengthier sentence to have been imposed upon Mr Macdonald (and his co-offenders) if that had been the objective characterisation. Contrary to the submissions for Mr Macdonald, I interpret the evaluation of her Honour as meaning (if a synonym is required) that the offending was very grave indeed.
4. Thirdly, bearing in mind the position of power, responsibility, and trust that Mr Macdonald occupied as a Minister; the "open-ended" nature of the agreement; the number of steps actually taken to implement it; and the profoundly corrosive effect on public institutions and the adverse effects on the view of members of the community about those institutions, I believe that that characterisation was not only open to the sentencing judge; I endorse it.
5. Relatedly, in the scheme of things, absence of proven motivation on the part of Mr Macdonald, and the absence of an actual financial loss to the State coffers, does nothing to detract from the finding of the sentencing judge.
6. Finally, I consider that the characterisation provided by Lee J in Jackson v R; Hakim v R (see [141] above) of the gravity of corruption on the part of government Ministers remains just as correct today as it was 35 years ago.
7. I would reject this ground.

Ground Four: The sentence was manifestly excessive.

Written submissions

1. Mr Macdonald relied on the written submissions made in support of ground two and three for the proposition that the sentence imposed was manifestly excessive.
2. Additionally, although it was acknowledged that manifest excess cannot be demonstrated solely on the basis of a comparison with the decisions of other sentencing judges or appellate courts, counsel submitted that such decisions may contribute to a finding that, absent any apparent error by the sentencing judge, there must have been some misapplication of principle: see Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58].
3. Three decisions were relied on by Mr Macdonald in support of manifest excess: Jackson v R & Hakim v R, R v Nuttall; ex parte Attorney-General (Qld) (2011) 209 A Crim R 538, and R v Obeid (No 12) [2016] NSWSC 1815.
4. In Jackson v R & Hakim v R, the Crown successfully appealed against a head sentence of 7 years 6 months imposed on Mr Jackson, a former Minister for Corrective Services, for conspiracy to bribe an official. He had taken part in a corrupt scheme whereby he was paid to authorise the release of prisoners on licence who would not otherwise have been released. The sentence was found to be manifestly inadequate, and a greater head sentence of imprisonment for 10 years was imposed.
5. However, it was submitted that Mr Jackson's conduct was of much greater culpability, and called for much greater denunciation and penalty, than that committed by Mr Macdonald: 1. First, Mr Jackson's offending involved a series of recurrent, intentionally separate, acts in respect of multiple prisoners that resulted in the granting of licences to secure their release when not otherwise justified. In contrast, as discussed, Mr Macdonald's role in the conspiracy was merely opportunistic, and had imprecise boundaries in respect of a single exploration licence. 2. Second, there was no evidence in the case against Mr Macdonald that he would receive any actual or expected advantage for his conduct in the conspiracy. On the other hand, Mr Jackson's receipt of financial rewards for his misconduct represented an extreme departure from his duty of impartiality as Minister for Corrective Services. 3. Third, Mr Jackson's misconduct was sustained consistently from 1982 to 1983. The conspiracy in the present case occurred from May 2008 to September 2008, a much briefer period.

Oral submissions

1. During the hearing, counsel for Mr Macdonald accepted that sentencing patterns in New South Wales had markedly changed since the decision of Jackson v R & Hakim v R over three decades ago. It was emphasised, however, that Mr Jackson's offending was, in many ways, much more serious than that of Mr Macdonald.
2. In resisting this ground, the Crown relied (as a comparator only) upon a separate sentence imposed upon Mr Macdonald by Dhanji J earlier this year in R v Macdonald [2023] NSWSC 270. In that case, Mr Macdonald had been found guilty of two counts of misconduct in public office. His Honour imposed a head sentence of 8 years with a non-parole period of 5 years 6 months on one count, and a head sentence of 6 years 6 months with a non-parole period of 4 years 6 months on the other. The sentences were wholly concurrent with each other, and significantly concurrent with the sentence imposed by Fullerton J.
3. In response, counsel for Mr Macdonald submitted: PARKIN: … That particular judgment or sentence is being relied upon as a comparative sentence by the Crown. About that we say a few things. Firstly, caution is required when approaching that particular judgment or that particular sentencing remarks. I am instructed that it is subject to an appeal, there is a notice of intention to appeal that has been filed. Also, there is a degree of circularity that is involved in looking at that sentence as a yardstick for this sentence and that's because in Dhanji J's remarks he notes this sentence, the one that we are currently appealing, is one of the matters which sets the range of appropriate sentences.

Determination of Ground Four

1. In my opinion, this ground can also be resolved expeditiously.
2. The offending of Mr Macdonald in this case was extremely grave. It inflicted far more societal damage than most offences of dishonesty, and many offences of violence. Committed by a Minister of the executive government, it constituted a breach of trust of the grossest kind.
3. Subjectively, by the time he came to be sentenced, Mr Macdonald was an old and unwell man who was of prior good character. Apart from those matters, the subjective features were unpersuasive: an unremarkable upbringing that did not feature disadvantage or deprivation; the benefits of tertiary education; no psychological or psychiatric conditions that could operate in mitigation; no dependency that might at least explain the offending; a position of privilege and power enjoyed by Mr Macdonald, which permitted him to commit the offence; undoubted intelligence and resourcefulness; no remorse; and a prediction about lack of future offending based substantially upon lack of opportunity.
4. In my opinion, sentencing patterns have increased so markedly since the offending in Jackson v R & Hakim v R, almost 40 years ago, as to render that decision of this Court as of little value as a comparator. And even if one were to give it weight, neither that decision nor the other decisions relied upon by Mr Macdonald establish that the sentence actually imposed, in all the objective and subjective circumstances, was beyond the sentencing discretion available to her Honour. It is to be recalled that Mr Jackson received a head sentence of imprisonment for 10 years, a little longer than that imposed upon Mr Macdonald Indeed, what all of the other comparative sentences demonstrate is simply that - inevitably - courts impose very significant sentences for offences to do with misconduct in public office when committed by persons in positions of political and governmental power.
5. In short, I consider that the head sentence of 9 years 6 months is stern but unexceptionable; the deviation from the statutory ratio to the extent of an imposed ratio of 55% is substantial; and the non-parole period of 5 years 3 months is unremarkable. No aspect of the sentence imposed upon Mr Macdonald can be characterised as plainly unjust or unreasonable, or as demonstrating that any misapplication of principal must have underpinned it.

Ground Five: The sentencing judge erred in that her Honour mistook the facts.

Submissions

1. In written submissions for Mr Macdonald, it was made clear that this ground was to be advanced if this Court were "satisfied that her Honour was wrong to find one or more of these facts proven but nonetheless correct to find the conspiracy proven". It was said that the ground was "advanced with that theoretical possibility in mind". The facts spoken of were those impugned in the conviction appeal: the first unparticularised act of misconduct, and the fourth, seventh, and eighth acts of misconduct. That starting point of the ground was never disavowed orally.

Determination of Ground Five

1. Because this Court has not come to the view that her Honour was in error with regard to any of those facts, the possibility that founded this ground has not eventuated, with the result that the ground need not be discussed further.
2. And if I am wrong in that understanding of the submissions made now, no submission was made to the sentencing judge seeking revisitation of any of those findings, and inviting attention to the differing standard of satisfaction that applies to a circumstantial fact relied upon to found a verdict of guilty on the one hand, and a matter adverse to an offender on sentence on the other. In those circumstances, I cannot accept that it is appropriate for this Court to embark upon an evidential analysis based upon that argument: see, as one of many cases, Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [80]-[82].
3. I would not uphold this ground.

Agreement with orders

1. I consider that the above analysis is consistent with the orders proposed by Basten AJA, and I agree with them.

Endnotes

1. (1988) 34 A Crim R 397 at 401 (Hunt CJ at CL).
2. (1936) 55 CLR 499 at 505; [1936] HCA 40.
3. See Hordern v R [2019] NSWCCA 138 at [6]-[20].
4. (1999) 199 CLR 270; [1999] HCA 54.
5. Sentencing judgment at [16], [43]-[77].
6. Sentencing judgment at [41].
7. Sentencing judgment at [84].
8. CCA Tcpt, 06/06/23, p 4(5).
9. CCA Tcpt, p 4(42).
10. Sentencing Tcpt, 08/09/21, p 26(40).
11. Sentencing Tcpt, 09/09/21, p 64(10).
12. CCA Tcpt, p 6(43).
13. CCA Tcpt, p 6(41).
14. (1999) 201 CLR 49; [1999] HCA 67.
15. Esso at [23] (Gleeson CJ, Gaudron and Gummow JJ).
16. Applicant's written submissions, par 219.
17. (2016) 259 CLR 256; [2016] HCA 48 at [18] (Bell, Gageler, Keane, Nettle and Gordon JJ).
18. Kilic at [20]
19. Kilic at [42].
20. Kilic at [18].
21. Sentencing judgment at [22].
22. Sentencing judgment at [23].
23. Sentencing judgment at [25].
24. Sentencing judgment at [28].
25. [2006] NSWCCA 282.
26. Mulato at [45], [46].
27. See fn 2 above.
28. See fn 4 above.
29. Olbrich at [24].
30. See R v Isaacs (1997) 41 NSWLR 374 at 377-378 (par 3) adopted in Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [14].
31. [2009] HCA 13; 83 ALJR 579 (Gummow, Hayne, Crennan, Kiefel and Bell JJ). Although the applicant gave only a reference in the CLRs, the case has not in fact been reported in the authorised reports. Further, the applicant referred to a proposition at [13] but it is doubtful that that was the correct reference.
32. Carroll at [4].
33. (2000) 202 CLR 321; [2000] HCA 54 at [6].
34. Dinsdale at [5].
35. [2016] NSWSC 1815.
36. (1988) 33 A Crim R 413 (NSWCCA).
37. (2011) 209 A Crim R 538; [2011] QCA) 120.
38. Sentencing judgment at [78].
39. Sentencing judgment at [79].
40. Written submissions, par 222.