R v Macdonald

Supreme Court of NSW|2023-02-24|Before: Dhanji J, Fullerton J

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Michael Bowe Solicitors (Offender) File Number(s): 2015/59990 Publication restriction: Nil

Introduction

In 2007, residents of Doyles Creek were concerned about the prospect of coal mining proximate to their town and its capacity to negatively interfere with their lives. This came about as a result of an application by a mining company, Doyles Creek Mining Pty Ltd (DCM), to obtain consent to explore an area near Doyles Creek. A community group was formed which the residents called the "Jerrys Plains Community Mine Watch Committee". The purpose of forming that group was to enable the voice of concerned residents to be heard in any decision-making process with respect to mining in the area. In the society in which we are privileged to live, the formation of such community groups by individuals likely to be affected by potential developments in the area in which they live, is a common occurrence. In forming such groups, the individuals involved are entitled to believe that they are contributing to a legitimate decision-making process. If not, their time and energy is misspent.
Prior to 2007, a number of coal mining companies had expressed interest in exploring, and ultimately, mining the Doyles Creek area. That interest had been expressed to the Department of Primary Industries (the Department or the DPI). The Department maintained a register of such interests. Companies on that register had a legitimate expectation that, in the event that the area in which they had expressed interest was to be released, their proposal would be considered, and an impartial decision would be made as to the best bid for the resource. If that were not the case, the expenditure of time, money, and imagination in considering potential mining areas and formulating proposals would be largely wasted.
Any decision to allocate the area for mining, and the identity of the mining company lay with the minister. That should engender confidence in the process. However, sadly, when DCM's proposal came to be considered, neither the residents of Doyles Creek, nor the other mining companies interested in mining in the area, were contributing to, or competing in, an impartial decision-making process. That is because Mr Macdonald, as the Minister for Mineral Resources, misconducted himself in that public office. As the Crown submitted, the loss of public confidence in the system of government is the most significant consequence of the offending. The damage to the institution of government is a serious loss which affects the entire community.

The charges

On 20 December 2022, after a trial by judge alone before me, I found the offender guilty of two counts of the common law offence of misconduct in public office. John William Maitland was charged as an accessory before the fact with respect to each count, but was acquitted. These reasons should be read with my judgment on verdict: see R v Macdonald; R v Maitland (No 10 - verdict) [2022] NSWSC 1765 (verdict judgment). No additional evidence relevant to the facts of the offending was led on sentence.
The offences of which I found the offender guilty are as follows (verdict judgment at [704]): "…[O]n count 1, that on or about 21 August 2008 in Sydney in the State of New South Wales, then holding public office as Minister for Mineral Resources you did in the course of and connected to your public office wilfully misconduct yourself by granting Doyles Creek Mining Pty Ltd consent to apply for an exploration licence under the Mining Act 1992 (NSW), without reasonable cause or justification, where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects. … [O]n count 3, that on or about 15 December 2008 in Sydney in the State of New South Wales, then holding public office as Minister for Mineral Resources you did in the course of and connected to your public office wilfully misconduct yourself by granting to Doyles Creek Mining Pty Ltd Exploration Licence No. 7270 under the Mining Act, without reasonable cause or justification, where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects."
In finding the offender guilty, I was satisfied beyond reasonable doubt the following elements were proved (verdict judgment at [12]): "([W]ith matters particular to count 1 underlined and, to count 3, in square brackets): (1) Mr Macdonald was a public official, that being the Minister for Mineral Resources. (2) In the course of, or in connection with, his public office he granted Doyles Creek Mining Pty Ltd (DCM) consent to apply for an exploration licence [Exploration Licence No. 7270] under the Mining Act 1992 (NSW). (3) In granting consent [Exploration Licence No. 7270], Mr Macdonald misconducted himself as the consent [exploration licence] was granted for the purpose of benefiting Mr Maitland and DCM in that this purpose was the driving force behind the decision such that the decision would not have been made but for this purpose. (4) Mr Macdonald's misconduct was wilful in that he knew either that: (a) he was obliged not to use his position in that way; or (b) it was possible that he was obliged not to use his position in that way but chose to do so anyway. (5) Mr Macdonald granted such consent [Exploration Licence No. 7270] without reasonable cause or justification. (6) Mr Macdonald's misconduct was serious and merits criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects."
For the purposes of sentencing, any further facts to which I have regard which are adverse to the offender have been established beyond reasonable doubt. I will have regard to matters in mitigation if they have been established on the balance of probabilities.
The offence of wilful misconduct in public office is a common law offence. I note that the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) apply to common law offences as well as to statutory offences.

The facts of the offences

No additional evidence was led on sentence directly relevant to the facts of the offences. In my verdict judgment, I set out the background as follows (at [16]-[18]): "16 [In 2007 and 2008 the offender was the] Minister for Mineral Resources in the State Labor government, a position he had held since 3 August 2005. In that position he was responsible for the State's mineral resources, including coal. He was, additionally, a member of the Cabinet. The Department of Primary Industries ("the Department" or "the DPI") was responsible for administering the sector in accordance with government policy, advising the Minister and implementing his decisions. A mining company seeking to establish a coal mine in a particular area would first need an exploration licence for that area. At the time, an application for an exploration licence could not be made unless the Minister had first granted consent to apply. Mr Macdonald, as the Minister, had the power to grant an applicant consent to apply for an exploration licence and the power to grant the exploration licence. In reality, the grant of consent to apply was the most significant step in establishing a coal mine. If granted, the expectation was that the exploration licence would be granted, and subsequent to that (assuming the exploration was successful), a mining lease. The grant of the mining lease fell within the responsibilities of the Department of Planning (and a different minister). Nonetheless, at least from the perspective of the Department, it was expected that there would be coordination within the bureaucracy such that a prospective miner would not undergo the process of obtaining an exploration licence and consequent exploration, only to be denied a mining lease. 17 Mr Maitland had been, for some years, a senior union official in the mining industry, ultimately resigning in 2006 as the National Secretary of the Construction, Forestry, Mining and Energy Union (the CFMEU). As a result of their respective positions the two accused were known to each other professionally, and on the Crown case, were friends. Subsequent to Mr Maitland's retirement from the union, Mr Macdonald appointed him as chair of a body he had established called the Coal Competence Board, which was to report to Mr Macdonald as Minister. Mr Maitland also accepted a position as chair of a company, ResCo Services Pty Ltd (ResCo). ResCo's primary activity at that point was as a labour hire company providing services to the mining industry. It also provided engineering services for mine development. ResCo had aspirations to engage in mining and identified an area of land at Doyles Creek in [the] Hunter Valley, nearby to a township called Jerrys Plains. A plan was arrived at to seek access to the area in order to establish a commercial mine together with a training mine. Mr Maitland had long had an interest in establishing an underground training mine based on a genuine belief such training would enhance safety in the industry. The training mine was also to be promoted on the basis that it would address a serious skills shortage in the industry. 18 ResCo made application for consent to apply for an exploration licence for the area in February 2007 seeking what was described as a "direct allocation". At the time the Department's guidelines provided that the allocation of a "major stand-alone area", such as that sought, would be allocated by some form of competitive process such as tender or expression of interest, possibly with an "open-ended financial contribution". The tender processes in relation to applications for consent to apply in relation to some other coal resources had, around the relevant time, resulted in very substantial payments by mining companies. The benefit in the establishment of a training mine provided the basis on which it was sought to justify the allocation of the resource to ResCo. Mr Maitland's appointment to ResCo acknowledged his access to the Minister (as a result of his position on the Coal Competence Board) and it was anticipated that he would use that access to promote ResCo's application for consent to apply for an exploration licence for the area, and ultimately an exploration licence, largely based on the benefit to be obtained from a training mine."
The ResCo application was notably insubstantial. It was barely over two pages. It had been preceded by communications from Mr Maitland commencing in January 2007, however, these were also short on detail. The Department, in accordance with ordinary practice, prepared a briefing note to the offender in relation to the proposal dated 22 February 2007. The briefing note noted the area was estimated to contain 62 million tonnes of underground coal reserves and indicated that a number of other companies had expressed interest in the area. It was further noted that those expressions of interest had not progressed "due to the sensitive nature of the area", that being the proximity of the Jerrys Plains township and the Wollemi National Park. The briefing note also stated that the Mine Safety Council (by then the Mine Safety Advisory Council) had considered a proposal for a training mine some years previously and identified "many problems", with the result that the idea was not pursued. The briefing note concluded: "[9] There would be major policy difficulties, potential probity issues and environmental sensitivities involved in considering a proposed direct resource allocation for this purpose. In addition, without the support of major industry players, it is unlikely that the present proposal would be successful. It is considered that industry in general may not be supportive, as they would advocate each mine has particular management systems in place, and site specific training at each mine is preferred. [10] The strengthened Mine Safety Advisory Council is the tripartite body that considers and advises on strategies to enhance mine safety performance in NSW. This includes skill and competency training needed to improve safety performance in NSW mines. Although in early 2000, the (former) Mine Safety Council, with CMFEU support, agreed not to pursue the [concept] of a Training Mine in favour of the use of simulation training, the Minister may wish to consider referring this current proposal to the new Mine Safety Advisory Council for its further consideration and advice. [11] Options: 1. The Minister reject the current proposal because the Government is not prepared to allocate the proposed area at this time, and there is no demonstrated support from the coal industry in general for a proposed training mine. 2. The Minister agree to seeking competitive Expressions of Interest for the proposed area under the current Guidelines for Allocation of Future Coal Exploration Areas (March 2006) which includes a financial contribution. 3. The Minister refer the proposal to the Mines Safety Advisory Council (which as the former Mine Safety Council had previously considered a similar training mine proposal) and seek the Council's advice on the current training mine proposal to inform the Minister's further consideration of this matter. Recommendation: [12] Option 3 is recommended as appropriate initial action."
In the event, the offender took none of the options suggested to him, and rather made no determination on the proposal. That was open to him. It was the case that the State election was to be held on 24 March 2007. It was also the case that there was significant doubt that the Labor Government would be returned. In my verdict judgment (at [289]), I found that the failure to do anything was, at least, consistent with the offender's evidence that he had no intention of granting the application at that stage. Nonetheless, the concerns raised in the Department's briefing note are of some relevance with respect to events that followed.
As it happened, Labor was returned to government. Mr Maitland continued to pursue ResCo's proposal. He had met with the offender's staff in March 2007 and was appraised of the contents of the Department's briefing note. Mr Maitland was consequently made aware of what appeared to be serious obstacles to the proposal.
The next significant event occurred on 26 July 2007 when the offender, with a member of his staff, met with Mr Maitland and Mr Ransley (a fellow director of ResCo) for a meeting at the Prime Restaurant. On the Crown case, at this lunch a "strategy" was arrived at between the offender and Mr Maitland by which Mr Maitland would encourage the writing of letters to the Minister by entities and individuals with an interest in the sector, raising concerns with respect to a skills shortage in the mining industry. The idea was that the ResCo proposal would be then seen as addressing a need raised by seemingly independent bodies. I did not ultimately accept that there was a "strategy" in the sense used by the Crown, which was effectively, that there was an agreement formed between the two men as to the means by which Mr Macdonald would (improperly) justify the approval of the mine. I did, however, find beyond reasonable doubt that the offender, in advising Mr Maitland, was providing a basis upon which he could potentially justify a decision without fully considering the merits of the proposal. I accepted that immediately following this lunch, the offender did seek independent advice from the Department. That advice, while indicating that the New South Wales Minerals Ministerial Advisory Council (NSW MMAC) had identified skills shortages impacting on the minerals industry, and also indicated that, having identified the issue, steps had been taken and the Department of Education and Training had responded quickly. The failure to then consult with the Department of Education and Training or the NSW MMAC as to how the training mine proposal would contribute to the action being taken, only serves to highlight the fact any training benefit to be received as a result of the mine was not the offender's priority. Had it been more fully explored, the offender would have been required to consider divergent views as to the existence of any skills shortage in the Hunter Valley region. If such a skills shortage was established, it would have been necessary to consider how the training mine would assist in alleviating that shortage and to compare it with other potential solutions.
As detailed in the verdict judgment, in the period following the lunch at Prime Restaurant, numerous letters were sent to the offender. On 18 March 2008, a formal application was made for consent to apply for an exploration licence. The application was made by DCM, an entity that had been established by ResCo for this purpose. This application was a significantly more substantial document.
A draft briefing note was prepared by the Department: see verdict judgment at [346ff]. The email providing the draft asked if any further information was required, or whether what was provided was sufficient. The draft briefing note pointed out that the proposal related to an area in which other companies had expressed interest. It also pointed out that the proposal suggested 91 million tonnes of coal would be mined, of which only 150,000 tonnes would be from the training portion of the mine. While the evidence at trial suggested that DCM intended that the 150,000 tonnes would not necessarily be the total amount mined in the training mine component, but rather, that that amount would be mined and then a further panel established, this was not known to the offender. The briefing note made clear that the training component was "only a relatively small part of the overall proposal in that the proposal [was] actually for a major mining operation with a small training component included". The briefing note also raised issues with respect to community opposition, the time it would take to establish the mine, the lack of detail in the proposal, issues with industry support, and the potential for a higher return through a competitive allocation. The Department provided three options including a direct allocation, but recommended a competitive allocation with a requirement to establish either a training facility or a broader industry training fund. The options should be seen in the context that it was known to the Department that the Minister was favourably disposed to establishing a training mine.
Following the Department's advice, on 17 June 2008, a meeting at the Strangers' Dining Room at Parliament House was attended by the offender, Mr Maitland, Mr Ransley and the offender's staff members, Mr Gibson and Mr Munnings: verdict judgment at [377]. Despite the Department's briefing note, the offender indicated that he was very positive about the proposal and "would consider an invitation, but it would be subject to [his] satisfaction that it did indeed have industry support and that they … commenced a process of community consultation". As a result, Mr Maitland set about obtaining letters of support for the proposal, which were sent to the offender. Eighteen such letters are listed in the verdict judgment (at [383]). As I stated in the verdict judgment (at [395]), the information known to the authors of those letters was not the same as that known to the offender who had the benefit of the full proposal and his Department's advice. Nor were the responsibilities of the letter writers the same as the offender's.
It had been generally acknowledged among stakeholders that industry support was a significant factor in the success of any training mine proposal, and indeed the lack of industry support had been a stumbling block in the past. Aware of this background, the offender sought the support of the NSW Minerals Council for the proposal. The minutes of the NSW Minerals Council of 11 September 2008 recorded that the training mine was a "ministerial pet project" and that there was a "lot of political pressure … being applied". I found that the offender was pressing the NSW Minerals Council to support the proposal. That is, he was effectively, as described by the CEO of the NSW Minerals Council Dr Williams, lobbying her rather than "the normal process of [her] trying to lobby him".
Despite the offender's efforts, the NSW Minerals Council determined that it did not support the proposal, although as I note in the verdict judgment (at [396]), that is not to say that the NSW Minerals Council opposed the proposal.
By letter dated 21 August 2008, the offender wrote to Mr Maitland granting consent to apply for an exploration licence over the area sought.

Count 1 - significant features of the decision

The decision to grant consent to apply was made, as noted above, in the absence of support from the NSW Minerals Council despite the offender's efforts to obtain that support. It was made despite the offender's Department recommending an alternative proposal. It was made in the absence of advice from the Mine Safety Advisory Council with respect to the merits of the training mine. It was made without the benefit of input from the NSW MMAC, a body set up by the offender made up of various stakeholders with a capacity to provide advice beyond that provided by the Department.
Most significantly, the offender was well aware that what was proposed was a significant commercial operation, the primary purpose of which was to profit the members of DCM. To the extent that there was a public benefit that might be derived from the establishment of a training mine, it can only be described as minor. Indeed, given the absence of advice from the various sources referred to above, it is difficult to know if there would have been any real benefit at all. This is particularly so in the context where the commercial mine would, irrespective of any dedicated training mine, need to train its workers. Further, access to trained workers was likely to benefit ResCo, given the significant arm of its business as a labour hire company.
Additionally, the letter granting consent was written by the offender, together with a member of his staff. This was highly unusual. Such letters were ordinarily prepared by the Department which had the requisite experience and expertise. Additionally, the drafting of the letter granted consent to apply for an exploration licence subject to a supplementary submission "outlining in detail the industry and wider community support for such a proposal". It was argued on behalf of the Crown that the letter was written in secrecy. It was suggested by the Crown that the exclusion of the Department supported the illegal nature of the exercise. However, in circumstances where the grant of consent to apply would inevitably have come to the Department's attention, I was unable to find that the offender was motivated by a desire for secrecy. Ultimately, I found that the extremely unusual process was the result of a desire for haste. I am satisfied of this beyond reasonable doubt. There is no other reasonable explanation for the unusual form of the letter granting consent to apply. I am further satisfied that that haste was the result of the offender becoming aware that he may be moved from his portfolio. The offender's desire to grant the application was such that aspects that would ordinarily have been considered prior to the grant of consent were not considered. Rather, the consent was granted but made subject to the receipt of additional support. This had the effect of avoiding any real scrutiny of that support, given that the letter of 21 August 2008 was treated by all as being a consent to apply, and that the grant of an exploration licence ordinarily followed such consent, subject only to the need to complete the bureaucratic process and pay the relevant fee.
The offender's driving force in making the decision was to benefit Mr Maitland such that, but for that purpose the decision would not have been made. This was not a finely balanced matter where the offender, allowed, for example, a desire to benefit Mr Maitland to tip the scales in an otherwise finely balanced decision. I accept that the offender respected Mr Maitland based on Mr Maitland's long experience in the mining industry. I also accept that Mr Maitland, among others, had long been a proponent for the establishment of an underground training mine. I additionally accept, as I found in the verdict judgment (at [173]), that the offender had a genuine interest in promoting mine safety. However, the offender deliberately went about a process by which the evidence supporting the proposal was, to his knowledge, curated by Mr Maitland and DCM, and sourced from entities that either did not know the full detail of the proposal, or had an interest in the proposal as a result of their relationship with the DCM. With respect to this latter aspect, I accept the offender did not necessarily know what the partner entities expected to gain, but, at least, their interest in the matter proceeding as partners to the enterprise was explicit.
Further to the above, I find that the offender deliberately avoided obtaining advice from independent bodies such as the Mine Safety Advisory Council or the NSW MMAC. I find that the offender's actions with respect to the NSW Minerals Council reflected his expectation that he could influence that body. When he failed, he ignored that lack of support. As a result, I find beyond reasonable doubt that the decision was made for the purposes of benefiting Mr Maitland and DCM. To the extent that the proposal may have added to safety in the industry, I find that this was not a material factor in the offender's decision, other than to the extent that he saw it as a way that his decision to favour Mr Maitland might be masked. A genuine interest in promoting mine safety would have involved obtaining some understanding as to the extent to which this proposal would, in fact, enhance that objective. It could have been, but was not, pursued by legitimate means. By contrast, the DCM proposal was promoted by the offender effectively ignoring the significant commercial nature of the proposal despite this having been made quite clear to him on multiple occasions by the Department: verdict judgment (at [514]). Thus, while I can accept that the offender believed that some good may have come from the establishment of a training mine, I am unable to accept that this provides significant mitigation of the objective seriousness of the offending.

Count 3 - the exploration licence

Much of what has been said with respect to count 1 is also applicable to count 3 including as to the offender's motivations. As to the facts particular to count 3, further letters of support were received in compliance with the terms of the letter granting consent. Otherwise, the process followed the ordinary course, at least up until the signing of the exploration licence. Indeed, the Department prepared a short briefing note dated 12 December 2008, which recommended the signing of the exploration licence. That briefing note did not reflect any change in the Department's view as to the merits of the proposal but rather reflected the fact that, in granting the consent to apply, the decision had, in reality, already been made: verdict judgment at [559]. The signing of the exploration licence itself was at Catalina restaurant on 15 December 2008. As I have observed in the verdict judgment (at [560]), this was an irregular occurrence. The offender joined in a celebratory occasion to mark the granting of the exploration licence. This reflected significant hubris on his part in the context of his corrupt role in the process.

The offender's position

In R v Obeid (No 12) [2016] NSWSC 1815, Beech-Jones J (as his Honour then was) said (at [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."
The most striking and concerning feature of the offending here is the position held by the offender at the time the conduct was engaged in. It is an element of the offence that the person be a public official. That requirement encapsulates a significant range of potential offenders, from lowly officials to those, as here, at the upper echelons of the State. The offender, as a minister, and member of cabinet, occupied a senior role in the Government, junior only to the Premier and Deputy Premier. The offender breached the significant trust reposed in him by that role. In R v Jackson (1988) 33 A Crim R 413, Lee J said of the former minister for Corrective Services, Rex Jackson (at 435-6): "We live, and are fortunate to live, in a democracy in which members of Parliament decide the laws under which we live and cabinet ministers hold positions of great power in regard to the execution of those laws. A cabinet minister is under an onerous responsibility to hold his office and discharge his function without fear or favour to anyone, for if he does not and is led into corruption the very institution of democracy itself is assailed and at the very height of the apex. Democracy can only survive when ordinary men and women have faith in the integrity of those whose responsibility is the preservation of integrity of Parliament in all its workings. 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. … In the first place, it was not open to his Honour to give any great weight to the evidence before him relating to the respondent's character and like achievements."
In Nuttall; Ex parte Attorney-General (Qld) (2011) 209 A Crim R 538; [2011] QCA 120 the Queensland Court of Appeal said (at [52]): "Grave though it is, corrupt behaviour on the part of a servant of the Crown does not have as great a potential to erode public respect for, and confidence in, institutions critical to the good order of government and society as does the conduct of a corrupt Minister of the Crown. If corruption takes hold at the centre of government, its permeation of lower echelons is assured and the ability to eradicate it gravely compromised. …"
The potential for such corruption to impact on the quality of life of the population of the State cannot be gainsaid.

The decisions to grant consent to apply and the grant of the exploration licence

In granting both consent to apply and the exploration licence, the offender exercised power under ss 13(4) and 22 of the Mining Act 1992 (NSW) but did so in breach of the duties owed by him. The mineral resources of New South Wales are owned by the State. They are finite. Once exploited, they are gone. The offender, as Minister, had a significant obligation to ensure that any decision as to whether those resources should be mined, and if so, by whom they were to be mined, and the conditions attaching to that mining, be determined in the best interests of the people of New South Wales.
The proposal estimated the resource as 91 million tonnes of soft and semi-soft coking coal and made projections on an assumed value of $100 per tonne, which the evidence suggests was, for the time, reasonable. The proposal thus related to a resource with a total value of $9.1 billion. It will always be possible to envision decisions of greater magnitude. The decisions made with respect to coal deposits at Caroona and Watermark establish that, as Minister, the offender dealt with larger coal deposits. The dollar figure with respect to Doyles Creek mine, however, makes clear that this was not a minor decision in the context of the offender's portfolio overall. In the context of a portfolio necessarily involving very onerous obligations, it was a significant decision.

The consequences of the commission of the offence

Mr Mullard, who was Director of Coal and Petroleum Development within the Mineral Resources section of the Department, and at least for some of the relevant time, the acting Deputy Director of the Department, estimated that, had the matter gone to a competitive tender, an additional financial contribution of somewhere between $50 million-$100 million would have been realised. This estimate was based, at least in part, on the additional financial contributions offered with respect to the bids received for resources known as Caroona and Watermark of approximately $100 million (accepted 2 June 2006) and $300 million (accepted 14 August 2008) respectively. The Crown urges on sentence a finding based on the lower estimate. I said in my verdict judgment, with respect to this evidence (at [236]): "Without, in any way, being critical of Mr Mullard, I would not place weight on this opinion. In saying this, I do not suggest it was wrong. Rather, there is no suggestion that he informed Mr Macdonald (or Mr Maitland) of this opinion and it therefore cannot have been relevant to Mr Macdonald's decision. Apart from this, I would also accept that there were significant differences between the areas, making comparison difficult. Mr Macdonald's assertion that, quite apart from the training mine, he saw no similarities between Caroona and Watermark, and Doyles Creek is not without foundation." (footnotes omitted)
It is also relevant to note that the amounts received for Caroona and Watermark were well beyond any expectations. There was, at least arguably, the complication of the training mine. Had the establishment of a training mine been a prerequisite for any proposal, the evidence was that it would have narrowed the field. This is somewhat artificial because, the desirability of the training mine, (as opposed to some other means of enhancing mine safety), was never established. Ultimately, I am not able to come to any finding as to what might have been received by way of financial contribution had a competitive process been followed. Nor do I think it matters much. It may be that in some cases the loss to the State (or the gain to the offender) is identifiable and provides a clear indication of the seriousness of an offence of wilful misconduct in public office. Here, however, the fact that the loss is not readily quantified in dollar terms, in my view does not, contrary to the offender's submissions, assist him in diminishing the seriousness of the offences. The offender was responsible for a decision to allocate a finite resource which was, on any view, of great value. There was a significant financial benefit to DCM. Having regard to the interests of the State in its resources, the absence of a dollar figure for what was lost or gained does not diminish the seriousness of this offence.
The reality was that, in flagrant disregard of his obligations, the offender exercised his power in favour of Mr Maitland not knowing the extent of the benefit or benefits the State might have received had the process been a fair one. As has been stressed, the loss of public confidence in the system of government is the most significant consequence of the offending: see R v Obeid (No 12) at [84].
The offending had the related effect of diminishing the standing of New South Wales as a place to do business, a matter impacting investment and entrepreneurship within the State. As the former Premier Mr Iemma's evidence made clear, the absence of political interference in business decisions, oversight with respect to probity, and adherence to competitive processes was a basis on which New South Wales was promoted to potential investors as a place to do business. Such damage to the confidence of potential investors in New South Wales as a place where business can be transacted fairly is to the detriment of the economy and hence the people. This is no minor consideration.
The evidence established that the misconduct occurred at a time when the finances of the State were under considerable strain. The offender's willingness to act partially, despite the emphasis within the Government on the need to maximise revenue and engage in sound fiscal management, suggests a contemptuous attitude towards his obligations, at least on the occasion of this decision-making process, adding to the offender's culpability. Given the fundamental nature of the offender's ministerial obligations, and the harm stemming from their breach, there may not be a great difference between an offence committed in good times or in bad, although I also accept, the importance of this decision was, at least to some extent, affected by the state of the economy in which it was made.

The manner in which the offences were committed

The offender sought to rely on an absence of dishonesty and, relatedly, secrecy in his conduct, both in the commission of, and after the offences, as a matter relevant to the seriousness of the offences. I would accept that the offender did not act in secret. Nor were there explicit acts of deceit or dishonesty.
At relevant meetings at least one member of the offender's staff was present. While the letter granting consent to apply for the exploration licence was written in the Minister's office, I did not find that this was motivated by a desire to keep the consent from the Department, given the obvious futility in such an exercise. I do not, however, regard the presence or absence of secrecy, in relation to an offence of wilful misconduct in public office, as automatically impacting on an assessment of the seriousness of the offence. In the case of a relatively junior public officer, the absence of secrecy may speak to less sophisticated or less serious offending which is, in turn, more easily detected. The difficulty with the submission in the present context is that the offender was the acme of the decision-making process. As Minister he was able to exercise the power to grant the consent and the exploration licence. The Department, despite its expertise and concerns, was obliged to implement the offender's decisions. That the offender did not engage in secrecy was a reflection of the fact he did not have to.
It should be noted that, in the course of my verdict judgment (at [423]), I found that the offender was not obliged to take his proposed decisions to Cabinet. That, of course, did not preclude him from doing so. To that extent, at least, the offender did keep his actions hidden from others who might have questioned them. Additionally, while I did not conclude that the offender lied to the Premier about the decision, there is no suggestion he made frank disclosure of it.
Ultimately, I regard the absence of secrecy as a concomitant of the senior position held by the offender. The offender's position is, as I have discussed, a matter significant to the seriousness of the offending. He was able to act without secrecy as he no doubt knew that his decision would be extremely difficult to review. In this context, the absence of secrecy is effectively neutral.
The offender made the allied submission that the seriousness of the offences was mitigated by an absence of dishonesty. As is usual, the seriousness of the offending is best understood by reference to what the offender actually did. That is, the offender favoured an individual in breach of his duty as a Minister to act in the best interests of the State. This involved a fundamental dishonesty. The sentencing exercise is not aided by contrasting the offence with cases where there may be more explicit deceits or calculated secrecy in the execution of the offence. I do not accept that the present offending can be viewed as mitigated by an absence of explicit dishonesty.

The offender's motive

The Crown case at trial asserted that the offender was motivated to favour Mr Maitland, as a result of a political debt or, at least, ties, a friendship, and a desire to bestow a favour with an eye to the offender's expected retirement in 2009. I was unable to find that the political ties between the offender and Mr Maitland were such that there was any debt owed. I said in the verdict judgment (at [540]): "There is insufficient evidence to establish the existence of a deep friendship or any political indebtedness. There is no evidence of any reward or benefit promised to Mr Macdonald in exchange for a decision favouring Mr Maitland. The evidence of motive does not rise higher than Mr Macdonald's expectation of retirement in 2009 (with no evidence that this would result in any financial difficulty)."
I had, however, earlier said (at [155]): "If I were to find that the other evidence established that Mr Macdonald misconducted himself, I would be inclined to find that he did so, conscious of his impending retirement and in the expectation of some return, based on, if not friendship, then at least trust that the favour would be repaid sometime in the future. But this is to put the cart before the horse. Ultimately, the evidence of motive is so uncertain that I do not regard it as probative of guilt."
As I said above, the evidence of motive was not sufficient to enable me to rely on it to reason towards guilt. However, having found the offender guilty, I am able to return to the evidence and reason from guilt as to motive. I am unable to find that there was any specific reward either promised or in mind. Nor, given the absence of proof of any agreement with Mr Maitland, am I able to find the offender had a firm expectation of some reward. With respect to the relationship between the two men, the evidence satisfies me that the offender and Mr Maitland did not enjoy a genuine personal friendship, as opposed to a long-standing professional respect and positive working relationship.
I do find, however, that the offender was conscious of his impending retirement and held out, at least the hope that the favour would be repaid in some way in the future. Consistent with there being nothing fixed in mind, I am not able to make any finding as to the monetary or other value of any potential return, or the likelihood that any hope of such would be realised. I accept that persons may act for the benefit of others without any return at all in mind. I do not, however, accept there to be a reasonable possibility that the offender would engage in such an egregious breach of his obligations solely for the benefit of Mr Maitland, a person with whom he did not have a genuine personal friendship.
I have found that Mr Macdonald acted alone, without assistance or encouragement from Mr Maitland, at least with a criminal state of mind on the part of Mr Maitland. The Crown submitted this made Mr Macdonald the instigator of the offence and the offence was consequently more serious. While the nature of the charge against Mr Maitland did not depend on any agreement between the two men and proof of the offences charged against Mr Maitland would not have necessarily said anything as to the offender's knowledge of Mr Maitland's state of mind, the essence of the Crown's position was that the offence was more serious as the offender acted alone, rather than by acceding to Mr Maitland's (criminal) encouragement. Having regard to Mr Macdonald's position, and his awareness of his obligations, agreeing with Mr Maitland or acceding to his overtures to act corruptly would not have made his conduct any less serious. Conversely, acting alone was no more serious.
While finding that the offender expected to receive a large financial return may have made the offence more serious, the real harm done by the offending is the damage to the institution of government and the concomitant erosion of public trust. Given this, the absence of any evidence of more than a vague hope of some future return, does little to mitigate the seriousness of the offence.

Conclusion as to the seriousness of the offending

The offending conduct occurred, with respect to the first count on 21 August 2008. That was, however, the culmination of a process engaged in from, at least, the time of the lunch at the Prime Restaurant in July 2007, though I am not able to find that the offender had determined that he would misconduct himself by granting the consent at that time. The offender was, at that time, at least minded to assist Mr Maitland in the process. However, by the time of the Department's briefing note of 27 May 2008, in response to the formal DCM application, the offender's failure to take any of the steps that might reasonably have been expected in order to engage in a proper evaluation, satisfy me beyond reasonable doubt that the offender was, by that time, determined to grant the proposal without proper regard for its merits. The act of signing the consent to apply on 21 August 2008 was consequently not the result of an impulsive, spur of the moment decision. Rather, it was a considered decision, implemented over, at least, some months. Having regard to the nature of his office, the importance of the resource, and other considerations referred to above, this is an extremely serious example of the offence of wilful misconduct in public office.
Count 3 was committed on 15 December 2008. Given the legislative scheme and the Department's approach to granting licences, the signing of the exploration licence was the culmination of the process, the more significant decision being the granting of consent. Of course, without the grant of the exploration licence, the earlier decision would have been set at nought. It was also an extremely serious instance of misconduct in public office. Further, viewing the offender's criminality as a whole, this second process extended the period of time over which the offender was actively involved in this serious wrongdoing. The relationship between count 3 and count 1 will, however, need to be considered in the context of the relationship between the sentences to be imposed for each offence.

Additional evidence tendered on sentence

On sentence the Crown tendered the offender's NSW criminal record, a printout from the NSW Department of Corrective Services setting out his imprisonment history, and a document titled "Overview of Services" produced by the Justice Health and Forensics Mental Health Network.
On sentence the offender tendered a letter written by himself and references from:

Andrea Brown;
Anita Gylseth;
John Della Bosca;
Terrence Healey;
Sasha Macdonald;
Amanda Coleman-Watson; and
John Flower.

No oral evidence was led.
The proceedings themselves were conducted with the informality customarily associated with sentencing proceedings. No challenge was made by the Crown to the documentary evidence relied on by the offender. Other than in the particular circumstances I identify below, it is appropriate that I accept what is contained in that evidence. Additionally, reliance was placed on factual findings of other judges in proceedings involving the offender: cf s 91 of the Evidence Act 1995 (NSW). Having raised with the parties the fact that the Evidence Act, if it applied to the proceedings (see s 4(2) of the Evidence Act), would prohibit such a course, it was accepted that I could rely on particular facts found by other judges sought to be utilised in these proceedings. Again, while in the absence of a ruling that the Evidence Act is to apply the common law of evidence applies, the nature of sentence proceedings and, in particular, the approach of the parties, allows me to accept factual findings of other judges relied on by the offender in these proceedings.

The offender's subjective case

The offender is presently 74 years of age. At the time of the offences he was aged between 58 and 59. Without intending any disrespect, there was nothing particular about his early life. After school he attended university and subsequently worked in the public service until his election to Parliament in 1998. His political career was the subject of evidence at trial. I discuss views expressed by some of his former colleagues below. He has an adult daughter from an earlier marriage. He married his current wife in 2007. His wife has three daughters aged between 25 and 30, the youngest of whom has a moderate to severe intellectual disability and requires full-time supervision. I will discuss the offender's letter when dealing with the offender's conditions of custody. The letters from the offender's biological and non-biological children, speak of the offender's devotion to his family and the positive role he played in family life. His wife details the effect of the investigation and criminal proceedings over 12 years on the offender's health, the significant support that had been given by the offender in dealing with her severely disabled daughter, and the difficulty consequently occasioned by the offender's absence. Other referees supported these observations. The offender's parliamentary colleague, Mr Della Bosca spoke of his experience of the offender's character. Insofar as Mr Della Bosca stated that the offender "always made his final decisions with regard to advice in the public interest" this is directly contrary to my findings and those of Fullerton J in R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 18) [2021] NSWSC 1343 ("Mt Penny sentence judgment").

Other offences

The offender has a conviction for a matter in 1970 which is of no present relevance, and I disregard it. At the time of the commission of the present offence, he had no relevant criminal history. He has, however, since been convicted of conspiring with others to misconduct himself in public office (the Mt Penny conspiracy offence). In relation to that offence, he is serving a sentence of 9 years and 6 months, comprising a non-parole period of 5 years and 3 months and a balance of term of 4 years and 3 months. That sentence commenced on 21 October 2021. His earliest possible release date, resulting from that sentence, is 20 January 2027. Given the nature of the Mt Penny conspiracy offence, the sentence imposed, and the temporal connection between the offences, it is necessary to understand that offence for the purposes of the present sentencing exercise, both as an aspect of the offender's criminal history and for its relevance to considerations of totality. To fully understand the offence, it is necessary to have regard to the reasons of Fullerton J, both on verdict and on sentence. For present purposes, the following short summary provides a general indication of the nature of the offence and its timing.
In finding the offence proved, Fullerton J was satisfied that "by no later than May 2008" the offender intentionally entered into a conspiratorial agreement to, in his capacity as a Minister of the Crown, at that time holding the office of Minister for Mineral Resources did "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": Mt Penny sentence judgment at [44].
The timing of the Mt Penny conspiracy offence bears a strong correlation with the present offence. It was therefore, similarly affected by the prevailing circumstances, in particular, the demand for coal, and consequent interest in, and competition for, coal deposits. The Obeid family (effectively) owned a property known as Cherrydale Park, which was in close proximity to Mt Penny. While it was not found that the property had been purchased with an interest in exploiting potential coal reserves, let alone in contemplation of the conspiracy ultimately proved, having acquired the property, and prior to entering into the conspiracy, the Obeids learnt of the existence, or likely existence, of coal resources underlying the property by searches of the public record: Mt Penny sentence judgment at [63]. Fullerton J found it was Edward and Moses Obeid's "keenness to acquire more detailed and reliable information about the volume of those coal reserves that motivated each of them to enter into the agreement with Mr Macdonald that he would misconduct himself in connection with the granting of a coal exploration licence at Mt Penny in order to promote or advance their financial interests, and that the agreement which was progressively executed by Mr Macdonald by committing successive acts of misconduct, developed to include the prospect of the Obeid family pursuing a joint venture with a mining company who might wish to apply for that licence": at [63].
The Crown alleged a conspiracy with an "open-ended timeframe" by which each participant impliedly accepted that the offender "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": Mt Penny sentence judgment at [23]. Pursuant to the conspiracy, the Obeids were provided with information which enabled them to pursue contractual arrangements with a company (Cascade Coal) from which they obtained a "vast profit": at [37].
Five acts of misconduct in furtherance of the conspiracy (of eight that had been particularised) were proved. Her Honour stressed that the offender was not to be punished for any substantive offence of wilful misconduct in public office. The acts committed in furtherance of the conspiracy, however, are significant in that they are informative of the conspiratorial agreement: Mt Penny sentence judgment at [40]-[41].
The first and second acts of misconduct concerned enquiries made of the Department in May 2008, at the offender's request, about the volume of coal reserves in the area of Mount Penny and the willingness of the Department to open the area to a competitive tender process. The offender was found to have sought this information, which he knew or expected would be held by the Department, with the knowledge or expectation that, in gathering and sharing that information, he would assist Edward and Moses Obeid and their family in their pursuit of the possibility of a coal release area near Mt Penny, including Cherrydale Park, which the offender knew to be owned by the Obeids.
The remaining three acts of misconduct concerned Mr Macdonald's provision of various documents prepared by the Department prior to the public launch of the tender process to his co-offenders or members of their family. The fourth act particularised was the provision, between 9 May and 9 July 2008, of two maps depicting the potential open cut coal resource in the area of Mt Penny, to Edward Obeid, Moses Obeid or another member of the Obeid family in breach of the offender's duty of impartiality. With respect to the fifth alleged act of misconduct, the offender was not found to have "directed" that a large area depicted in a map as a "potential open cut area" be reduced to a smaller portion comprising only the eastern portion. This particularised act was therefore not proved. The eastern portion which included Cherrydale Park was, however, found to have been created as a coal release area at the "strong suggestion" (as opposed to direction) of the offender: Mt Penny sentence judgment at [75]; R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858 at [981], [1041]-[1045] ("Mt Penny verdict judgment").
By the seventh misconduct, the offender was found to have, on or after 7 July 2008, provided the Obeids with a list of companies proposed by the Department to be invited to tender in the Department's expressions of interest with respect to consent to apply for an exploration licence.
By the eighth misconduct, the offender was also found to have, on or after 23 July 2008, caused the Obeids to be provided with a page of a memorandum in relation to coal allocation areas, and a map related to proposed release areas, prior to the public announcement of the Expressions of Interest process: Mt Penny verdict judgment at [1597].
Fullerton J found in the Mt Penny verdict judgment (at [1825]) that the offender by acts four, seven and eight: "…wilfully breached his Ministerial duties and obligations of confidentiality and/or impartiality in the knowledge or expectation that the particular information he provided to Moses Obeid and/or a member of his family (including Edward Obeid), from time to time between July and September 2008, would be used to either pursue a joint commercial venture with a mining company who might apply for the [exploration licence] at Mount Penny (… or to further progress a settled contractual arrangement with a mining company with that same objective."
In sentencing the offender, her Honour found in the Mt Penny sentence judgment (at [76]-[77]): "76 … the agreement that Mr Macdonald would commit unspecified acts of misconduct in public office for the improper purpose alleged, an agreement which was by its terms criminal and which I was satisfied each of the accused knew to be so, depended for its success on clandestine steps being taken by Mr Macdonald under cover of his pursuit of legitimate policy outcomes and driven by legitimate policy imperatives, to manoeuvre the Department into designating a new coal release area in an area of the Bylong Valley where he knew the Obeids owned a rural property and where he knew they were keen to exploit the value of that resource. 77 I am satisfied, for that complex of reasons, the objective seriousness of the conspiracy was of the highest order."
With respect to the offender's motive for entering and participating in the agreement her Honour said in the Mt Penny sentence judgment (at [81]): "In relation to Mr Macdonald, no financial benefit has been shown to have accrued to him for his agreement to wilfully breach his Ministerial duties and obligations; neither is there any evidence of any collateral advantage of any kind, or of any promise of an advantage of any kind that might explain why he agreed to act as he did. While Mr Macdonald's motives may have included the repayment of a debt of gratitude to Edward Obeid for his political patronage over the years, as well as financial pressures operative upon him at the relevant time and the hope of receiving a financial benefit at a later time, I am unable to reach that finding beyond reasonable doubt. The fact that no evidence of motive is discernible does not mitigate the extreme gravity of his criminal culpability as a co-conspirator. It is obvious beyond doubt that without Mr Macdonald's agreement that he would wilfully misconduct himself as the Minister for Mineral Resources there would have been no conspiracy."

Evidence of good character and its significance

The offender's political career was summarised in my verdict judgment. I referred to the evidence of the former Premier, Mr Iemma and said (at [169]-[170]): "169 Mr Iemma said that Mr Macdonald was passionate about his job, committed, energetic in his duties and spoke with genuine enthusiasm on the issues and policies in his portfolios. He took time to get across his brief, he spoke well in Parliament and he was knowledgeable about and interested in issues to do with rural and regional New South Wales, including mining, regional development, agriculture and primary production. Mr Macdonald was involved in projects related to cleaner electricity generation, such as the Clean Coal Fund and the Snowy Hydro cloud seeding project, and he was a strong supporter of providing grants and undertaking research on clean coal and carbon capture. 170 Mr Iemma said that Mr Macdonald was concerned generally about work safety and in particular, mine safety. Mr Iemma explained that the government at the time was facing severe financial challenges and a projected shortage of electricity in a decade's time, and that the expansion of coal production was regarded as integral to resolving both policy issues. Mr Iemma understood Mr Macdonald's concerns about mine safety to have been informed by this context." (footnotes omitted)
The evidence, and the fact of Mr Macdonald's long parliamentary career, satisfy me that he ordinarily directed his considerable energies to furthering the interests of the State.
The present offence was not, however, an isolated lapse. He has been convicted of the Mt Penny conspiracy offence, an offence that was committed between at least May 2008 and September 2008: Mt Penny Sentence [39], [43], [97]. The present offences were engaged in at a time when the Mt Penny conspiracy was in existence, with count 3 extending beyond that period. The facts surrounding that offence have been considered in more detail above. Despite that criminal conduct, the offender was, nonetheless, at the time of the offences, a person with no prior criminal record. The commission of that other offence does not take on the same significance in circumstances where offender had not, at the time of these offences, suffered the public disapprobation of a conviction: see R v MAK, R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381; Reid v Rowbottam (2005) 152 A Crim R 132; [2005] NTSC 7.
Acknowledging the above, the weight to be given to the existence of prior good character is, in any event, limited. In R v Jackson, Lee J said (at 436-437): "… as was pointed out in Farquhar (unreported, Court of Criminal Appeal, 29 May 1985) the good character of a person holding high office who commits a crime relating to the performance of his office cannot form a basis for the same mitigation of sentence as in the case of an ordinary citizen committing crime, for the public is entitled to expect that those who are placed in high office will necessarily be persons whose character makes them fit to hold that office. Furthermore, whilst one may indeed sympathise with the plight in which the respondent finds himself because of his misdoings it would, in my view, be quite wrong to take into account as a factor in his favour that he was a Member of Parliament and a Minister of the Crown. The holding of such office may indeed bring distinction to him personally but, from the point of view of sentence, it is not a matter which can advance the respondent any more than if he had been some hardworking person carrying on a menial occupation. Members of Parliament and Ministers of the Crown are well paid and receive many privileges and advantages denied ordinary citizens. It follows from what I have just said thus far that the high degree of criminality involved in the crime under consideration demanded a sentence which could not be significantly reduced by reason of the subjective factors which his Honour considered to be "tremendously powerful" …"
In accordance with the above, while I have regard to the offender's prior good character and positive public contribution over many years, I do not give it significant weight.

Hardship

There is no doubt that the offender's absence has placed very considerable strain on his wife, in particular with respect to the care for her disabled daughter in relation to whom the offender assumed the role of parent, and as to his wife's ability to manage financially. It is also clear that the daughter is suffering as a result of the offender's absence, her disability being such that she is not able to understand the reason for that absence. It was not contended that the level of hardship to third parties was exceptional so as to warrant discreet consideration. I would accept that the hardship is such as to make the offender's imprisonment more burdensome, in that his knowledge of the difficulties created by his absence must add to the stress of his incarceration. Otherwise, it was the offender's case that this consideration be taken into account with respect to the non-parole period and its relationship to the head sentence, a matter considered below.

Advanced age and ill-health

As noted above the offender is, at the time of the delivery of these remarks, 74 years old.
No evidence, beyond what was contained in the offender's letter and the various references, was tendered with respect to the offender's health. Rather, the offender submitted, without opposition from the Crown, that I should rely on the findings of Fullerton J in the Mt Penny sentence judgment in this regard. As discussed above, having regard to the position of the parties, I regarded it appropriate that I do so. Fullerton J in the Mt Penny sentence judgment made the following findings (at [221]-[224]): "Mr Macdonald's physical health 221 Principal among Mr Macdonald's current health concerns is chronic constipation. His motility issues and associated impaired gastrointestinal function and the efficacy of Faecal Microbiota Transplantation (FMT) as a procedure to treat those conditions was relied upon in his application for a temporary stay of his trial in July 2019. That application was refused. 222 Reports from Professor Borody, gastroenterologist, of 13 May 2019 and 2 July 2019, and a report from Dr Janu, his treating surgeon, of 18 June 2019 were tendered on the stay application and retendered on sentence. Updated correspondence and reports from various medical professionals, including Dr Jonathan Mak, General Practitioner, and Professor Borody were also tendered on sentence. 223 On 15 July 2019, Mr Macdonald consulted with Dr Ellard, an expert gastroenterologist, at the Crown's request. Dr Ellard provided reports dated 10 and 15 July 2019 which were tendered by the Crown on the stay application and retendered on sentence. Dr Ellard and Professor Borody gave evidence on the stay application. 224 In a letter to Dr Mak dated 24 August 2021, Professor Borody advised that Mr Macdonald continues to suffer from severe constipation, bleeding associated with straining, nightly abdominal pain, bloat, lower back pain and sleep disturbance. He advised that Mr Macdonald's motility issues may lead to him developing a hernia. 225 Mr Macdonald's chronic constipation predated the imposition of a sentence of imprisonment following a trial for an unrelated offence in 2017. [This is a reference to the term imposed by Adamson J with respect to the offences with which I am now dealing.] His condition was exacerbated whilst he was in custody at Cooma Correctional Centre. Despite filing a serious patient self-referral form on 14 October 2017, alerting Justice Health to the fact that his chronic constipation was aggravating a pre-existing hernia, and despite his request for additional medication for relief of his symptoms, Mr Macdonald developed a large left-sided inguinal hernia including bowel incarceration. On 30 May 2019, shortly after his release from custody after his conviction was quashed, Dr Norman Janu performed an operation to repair what was described by him as a "very large incarcerated indirect left [inguinal] hernia… the hernia containing bowel and bladder within it". Professor Borody assessed that whilst ever that condition was untreated, as it was by Justice Health for an extended period of almost two years, there was grave risk of strangulation, septicaemia and necrosis. 226 The operation was followed by a prolonged period of recovery. 227 Mr Macdonald's motility issues have been managed by a range of medications since that time, including high doses of laxatives which have caused periodic bouts of faecal incontinence. Professor Borody has maintained his advice to Dr Mak that Mr Macdonald would benefit from a Faecal Microbiota Transplantation (FMT). … … 230 … I am also unpersuaded that Mr Macdonald's wish to be considered as a candidate for the procedure is relevant to the sentencing exercise. I do accept the chronicity of Mr Macdonald's motility issues will render conditions of custody more onerous for him with an increased risk of related symptoms also adversely impacting on his experience of custody. 231 As to Mr Macdonald's other health concerns, he has recently experienced prostate-related abnormalities including urinary frequency and elevated PSA levels. Following a prostate examination conducted by Professor Borody on 17 August 2021, Mr Macdonald was referred to Dr Stricker, urologist, with a view to assessing the potential that his presenting symptoms might indicate the onset of prostate cancer. Mr Macdonald had a scheduled consultation with Dr Stricker on 14 October 2021. 232 Mr Macdonald has also suffered from glaucoma for several years, and gastro-oesophageal reflux. Both conditions are managed by daily medication. 233 Mr Macdonald experiences nightly sinus blockage which affects his sleep and which requires treatment by a nasal congestion medication. Dr Mak noted that during his earlier prison term Mr Macdonald was denied the use of his sinus medication and that he consequently experienced greatly disrupted sleep patterns. 234 Mr Macdonald requires regular treatment for sunspots which was effectively facilitated by Justice Health during Mr Macdonald's previous period of incarceration." (footnotes omitted)
Additional to the above, the offender's wife stated that while in custody the offender waited over a year to see a dentist and, as a result, developed a long-term abscess which was eventually treated with antibiotics. She said that further dental procedures are required, and that antibiotics have not been effective in eliminating the infection in his gums. She further stated that the offender's mental health (discussed below in the context of delay) has compounded the effects of his physical complaints and contributed to sleep deprivation.
In Liu v R [2023] NSWCCA 30 at [39], Campbell J (with whom Adamson JA and McNaughton J agreed), referred to the principles to be applied when sentencing a person of advanced age. In the present case, while it is the responsibility of the prison authorities to provide adequate health services, I accept that the offender's age and associated health concerns will make his imprisonment more arduous than would otherwise be the case. I also accept that, having regard to his age, his health is unlikely to improve, and will most likely get worse.
The offender was 72 when sentenced by Fullerton J. By the time he becomes eligible for parole with respect to that sentence he will be just short of 78 years old and will be 82 years old when that sentence expires. Having regard to his age, I also accept that, while the offender's circumstances are not such that it can be said that there is no reasonable expectation of a useful life after release, I accept that there is, at least, uncertainty as to this which will add to the burden of imprisonment. It does not follow from an offender's age that a sentence must be tailored to allow for a useful life after release, or the expectation of such. The punishment must still reflect the crime. Age and health must be taken into account, but they cannot dictate the outcome. Deterrence and denunciation remain important. That is particularly so in the present context where general deterrence, denunciation and recognition of the harm done to the community have such an important part to play. I do, however, accept the offender's age and health operate to mitigate the sentence to be imposed. The impact of those matters is such that the sentence is less severe than it might otherwise have been, while still serving the purposes of sentencing.

Conditions in custody

The offender's experience of custody is, of course, interrelated with other factors, most notably his health, but also the anxiety created by his absence, and the consequent inability to assist his family, particularly with care of his daughter. Whilst I analyse these factors separately, I remain cognisant of the interplay between them.
The offender detailed his experience of prison in his letter tended to the Court and with which no issue was taken by the Crown. The following is taken from that letter, together with the custodial record tendered by the Crown.

The first period of imprisonment

The offender entered custody on 26 May 2017, as a result of the sentence imposed by Adamson J (as her Honour then was). The offender remained in custody for a period of 1 year and 9 months until 25 February 2019, when he was released following his successful appeal against the conviction resulting from the first trial with respect to the present offences. The offender began his imprisonment at the Metropolitan Reception and Remand Centre (MRRC), prior to being transferred to Cooma Correctional Centre (Cooma) on 16 August 2017. Whilst at the MRRC he was held in isolation. In late January 2018 he was transferred to the Long Bay Correctional Complex (Long Bay) for medical appointments, where he remained until 14 February 2018, when he returned to Cooma. The offender stated that whilst at Cooma he received threats from three fellow prisoners and as a result requested "non-association status" which led to him being held in isolation at Cooma from April to May 2018, before being transferred to Junee Correctional Centre (Junee). The offender stated he was confined to a cell from June to July 2018 while at Junee, before being transferred to Lithgow Correctional Centre (Lithgow) until November, and then to Long Bay until his release on 25 February 2019. The history provided by the offender does not precisely match the custodial record. For present purposes, however, what is significant is the offender's unchallenged statement that he has served well over half of the period in solitary confinement. I would additionally note that the custodial history records a significant number of gaol movements (beyond those documented by the offender).
The offender stated that while at Cooma he developed a painful hernia caused by the exacerbation of long-term digestive issues. He stated that despite being on a three-month waiting list for surgery, this did not occur.
The offender relied on the findings made by Wilson J in the course of the offender's application for bail, pending his appeal against his conviction in the trial before Fullerton J: Macdonald v R; Obeid v R; Obeid v R [2021] NSWSC 1662. Wilson J's reasons reveal that she had before her evidence of Dr Jonathan Mak that the offender required surgical treatment, which was not received, leading to an exacerbation of, I interpolate, his hernia condition. Her Honour summarised the evidence in relation to other conditions stating that the "[offender] additionally suffers with glaucoma, sinus problems, and difficulties with sleeping, and he requires regular treatment for and monitoring of sunspots" and noted that he was in a "high-risk category for the COVID-19 virus, given his age and propensity to infection": at [58]. Her Honour noted that these concerns were echoed by Professor T Borody and drawn to the attention of Justice Health as a result of a letter written by him: at [59]
Her Honour found (at [125]): "I accept that, during his incarceration in 2017, the applicant Macdonald appears not to have received optimal or even adequate treatment for a medical condition. That is a matter of concern."
I accept that being in custody for a period of 21 months whilst not receiving adequate treatment for a serious medical condition added significantly to the burden of the offender's imprisonment during that time. That is to be viewed together with fact of the offender's isolation for a substantial period of that imprisonment.

The second period of imprisonment

The offender returned to custody on 21 October 2021. I note that the offender's reference to 19 October 2021 appears to be an error, having regard to the commencement date of the sentence and the custodial history. In his letter, the offender stated that he was held in isolation at the MRRC Covid hub until 6 November 2021. He stated he was then transferred to a maximum security "isolation and segregation facility" and, on the basis of previous threats and the high-profile nature of his case, he was placed "in non-association". He was transferred to Lithgow in December 2021. He stated he was again in an isolation unit. He stated that as a result of Covid-19 restrictions he received less than six face-to-face visits from his wife. He additionally stated that for a considerable amount of time during this period, the prison was in "covid lockdown" and that "Non-emergency medical checks and procedures were not conducted". The offender stated that whilst Covid-19 lockdowns were in force, there were no visits received, either face-to-face or by AVL. He stated that lock-ins during this time were frequent as a result of staff shortages. When visits were possible, they were often cancelled at short notice.
The offender was transferred to Long Bay in late July 2022. He stated he was held in segregation for a week, and "was under 24 hour camera surveillance". He was due to have a medical appointment in relation to his glaucoma, but this did not proceed, and he was transferred back to Lithgow, contracting Covid-19 whilst on the truck. This infection led to a transfer to the Covid-19 hub at the MRRC. He stated that he spent 17 days in the Covid-19 hub before being transferred to the Hamden unit, where he was held in isolation and where he remained until 1 December 2022. The offender stated that during this time he was unable to have visits of any type with either his wife or his legal team. He had access to one telephone call per day. The offender stated that on days he was not attending Court, he was released from his "cell for 20 to 30 minutes, dependent upon whether a lock-in was in place". The offender stated that he was, during the trial, "unable to sleep due to an inmate in a neighbouring cell chanting at night until 4am most mornings", generating loud complaints from other inmates, in an unsuccessful bid to dissuade the inmate from his activity. The offender stated that complaints to prison officers were to no avail, resulting in his exhaustion due to sleep deprivation in the course of the trial. The offender raised his concerns to a welfare officer in November 2022, resulting in a transfer to the John Maroney Correctional Centre, where the offender stated he was, up until the time of his letter, being held in isolation.
The offender stated: "I am entitled to either an AVL or a face to face visit once only on a weekend. I have not attended any medical appointments sought by a prison doctor for pandectomy, eye field test, urology nor dermalogical appointment to date. Isolation has meant for me no contact with inmates, no programs, limited access to reading material, 19 hours a day locked in a cell and limited access to the services (such as chaplain, library and education). I am unable to enrol for further post grad study, nor enrol in any course due to my non association status and the correctional facilities in which I am currently incarcerated. When released from my cell I have a 10 metre square courtyard for exercise. I have found the long isolation extremely difficult to cope with and endure periods of negativity and deep sadness. This is especially difficult to handle in the context of not being able to assist my wife in the care of [our disabled daughter]. This isolation is not likely to end soon as the high profile nature of the case is well known in prison and there is a high level of negativity to 'politicians'. This non association is in effect an extra layer of punishment which I have so far endured for nearly thirty months out of a total of 38 months incarceration."

Conclusions with respect to the offender's custody

The offender has spent two separate periods in custody, the first prior to the pandemic and the second during it. While the offender's letter does not precisely match the custodial history, I accept his assertions that imprisonment has been particularly burdensome for him.
Whilst in the first period of custody there were no pandemic related restrictions, I am satisfied that the combination of the offender's health and restrictions resulting from his profile, led to imprisonment being significantly more onerous than is usual or intended. I accept that spending significant periods of time in solitary isolation must have added to the harshness of the offender's experience. Further, the powerlessness and anxiety likely to be experienced as a result of an inability to access medical attention known to be necessary, must be affecting.
From the time of his return to custody in October 2021, the offender's imprisonment has been during the Covid-19 pandemic. The pandemic has impacted on him, as it has on all prisoners, as a result of the combination of restrictions (responsibly) put in place by Corrective Services to manage the pandemic and the staff shortages resulting from the impact of the virus on corrections staff. The fact that imprisonment may have been burdensome for many other inmates during the time of the Covid-19 pandemic is not to the point. The significance of the impact of the pandemic on prisoners has been acknowledged by the courts on numerous occasions: see e.g. Valentine v R [2020] NSWCCA 116; Scott v R [2020] NSWCCA 81; Doudar v R [2021] NSWCCA 37; SF v R [2022] NSWCCA 216. As was observed by Hamill J in Director of Public Prosecutions (Cth) v Saadieh [2021] NSWSC 1186 at [48]: "The conditions of incarceration (faced by all prisoners) are more onerous as a result of the strict regime established by Corrective Services including restricted access to work opportunities, training and education programs as well as mental health services. The procedures adopted also include a restriction on personal (face to face) visits with loved ones as well as more periods of lockdown and isolation. The potential impact on the mental health of inmates is real and well documented."
While, in the present period of incarceration there is no evidence that the offender has been denied urgently needed medical care, I accept that he has not had access to various appointments recommended for him. While the Crown tendered the Justice Health and Forensic Mental Health "Overview of Services", it is obvious that the ability of that service to cope with the demand has been, at the least, strained by circumstances of the pandemic. Further, the practical reality is access to health care for a person in custody, even if it can be described as adequate, is unlikely to be what it is for a person in the community. While it is not possible for me to make a positive finding on the balance probabilities that the offender will not receive adequate medical care into the future, I would accept that, having regard to what has occurred in the past, his imprisonment must, at the least, be affected by his anxiety as to this. I accept that the offender's second period of custody has been significantly more burdensome than is usual. While the impact of the pandemic may be expected to ease, I accept that the other factors affecting the offender including his profile and related non-association status are likely to continue in the future.

Remorse and rehabilitation

I am unable to find any evidence of remorse for the offending conduct. Such a finding would be primarily relevant to a finding as to rehabilitation. It is not a prerequisite to finding that an offender has good prospects of rehabilitation. Here, positive evidence of the offender's character, including his commitment to the community through his work, might suggest that the offender's conduct in these offences and the Mt Penny conspiracy offence were a lapse, and the investigation and court process will have restored his moral compass. The state of the evidence, however, and particularly the absence of any evidence of remorse, is such that I am not able to form a view as to this. Ultimately, while it is not possible to form a view as to rehabilitation in its true sense (see Zuffo v R [2017] NSWCCA 187 at [46]-[49]), the practical reality is that the offender is unlikely to reoffend as he will not have the opportunity. The result is that I would not give any particular weight to rehabilitation in the sentencing exercise. Nor, however, do I regard specific deterrence as requiring weight.

Delay and extra-curial punishment

The offending conduct was complete by 15 December 2008. In excess of 14 years have passed since that time. According to the offender's wife, the course of their life changed in August 2011 when an investigator from the Independent Commission Against Corruption (ICAC) visited their home. The offender's conduct was the subject of media attention from mid-2012 and a hearing occurred before the ICAC in 2013. He was charged with the present offences in August 2014. The first trial of the charges commenced in March 2017 and extended for a number of weeks. He was sentenced in June 2017. His appeal to the Court of Criminal Appeal was heard in November 2018 and upheld in February 2019. The trial before me then took place between September and November 2022, with my verdict being delivered on 20 December 2022. While media attention continued, certainly by the time of the trial before me, the interest was only very sporadic.
While it is true that the offender could have accepted his guilt after the verdict in the first trial, he was not obliged to do so. Rather, he was entitled to resist (by legitimate means) his conviction until his guilt had been determined following a fair trial according to law.
During the period prior to the investigation by the ICAC, the offender was unaffected by his actions. Further, the delay, including the period between 2008 and 2011, is not such that, having regard to all the circumstances, I would regard these offences as "stale" crimes, as that expression is used in the authorities: see R v Todd [1982] 2 NSWLR 517. Nor, having regard to what has been said above, do I consider the period as significant in demonstrating the offender's progress towards rehabilitation. However, the period from August 2011 is substantial. This is not a case where, while that time passed, the offender was able to continue in the community without disruption to his life or reputation. He has lived with uncertainty as to his future. His wife provided evidence that during that time, the offender has suffered "significant mental health problems including depression and marked anxiety". While there was no medical evidence to support this claim, I would, having regard to the events themselves, including the publicity surrounding them and the strain of litigation, accept that the offender has suffered from a level of depression and anxiety. Further, from 2017, the offender has suffered the loss of his parliamentary pension. His wife has provided evidence as to the strain which has resulted. In order to make ends meet they began "working together as cleaners and doing garden maintenance". While that work is done by many members of the community, taking up such work at the age at which the offender did is such as to have occasioned some hardship.
I accept that the offender has suffered some extra-curial punishment by reason of the loss of his pension. The effects of this are not limited to, but are to an extent intertwined with, the delay from August 2011 and the generally adverse impact of the proceedings on the offender from that time. I will take these matters into account in mitigation.

Co-operation in the conduct of the trial

I accept that, as conceded by the Crown, the offender co-operated in the conduct of the trial in a manner which facilitated the administration of justice. The trial was by judge alone. The transcript of the evidence given at the first trial was tendered by consent. Only a limited number of witnesses were required to be called for further cross-examination. In the context of a complex case, a saving of court time resulted. A lesser penalty should be imposed pursuant to s 22A of the Crimes (Sentencing Procedure) Act. Allowance may be made by simply having regard to this factor in mitigation, or by providing a discrete discount. Serious misconduct of the type engaged in by the offender almost inevitably involves a long and complex trial. It should not be thought by the public that such offenders are able to obtain a significant advantage as a result of the type of crime they commit. Given this, rather than providing a discreet "discount", I propose to give this matter some, albeit slight, weight in mitigation.

The absence of a maximum penalty

There is no set maximum penalty for the offence of wilful misconduct in public office, and the penalty is consequently at large. Sentencing practice is to adopt, where available, an analogous or corresponding statutory offence as a reference point: R v Hokin, Burton Peisley (1922) 22 SR NSW 280 at 291-292; Blackstock v R [2013] NSWCCA 172 at [8]. CWS [13]. In Jansen v R [2013] NSWCCA 301, Campbell J, with whom Basten JA and Price J agreed, said at [51]: "The position established by R v Hokin, Burton and Peisley at 292 therefore is that as a matter of discretion, one may have regard to "the maximum term of imprisonment imposed by law" for an analogous statutory offence. But the court's power is not limited by any available statutory analogue. This is evidently why Beazley JA in Jaturawong at [6]-[7] used the phrase "a reference point"."
In R v Obeid (No 12) Beech-Jones J (as his Honour then was), in dealing with an offence of wilful misconduct in public office by a parliamentarian (but not a minister), found the offences in Part 4A of the Crimes Act 1900 (NSW), namely corruptly receiving commissions and other corrupt practices to be the relevant analogue: at [66]. Amongst those offences, his Honour noted (at [66]) that s 249B(1) of the Crimes Act "effectively criminalises most forms of bribery by making it an offence for an agent to receive or solicit a benefit as an inducement or reward for doing something or not doing something in relation to the affairs or business of the agent's principal". His Honour found that offender's conduct to be broadly analogous to this offence, involving, as it did, a breach of his duty to the public by using his position to further his or his family's financial interests: at [66].
Beech-Jones J, however, observed in R v Obeid (No 12) (at [70]) that there were differences between the common law offence and the statutory analogue, such that the Court should not be limited by the maximum penalty of 7 years imprisonment available with respect to the statutory analogue. While I would accept that s 249B(1) is apt to apply to a range of persons, including servants of the Crown such as the offender, as a matter of principle it does not provide a restriction on the maximum penalty in this case: see Obeid v R [2017] NSWCCA 221 per RA Hulme J at [390]-[391].
In the Mt Penny sentence judgment, Fullerton J gave detailed consideration to the relevance of s 142.2 of the Criminal Code, Criminal Code Act 1995 (Cth), the heading of which describes it as an offence of "Abuse of public office", as a statutory analogue for the offence of wilful misconduct in public office, and the related offence of conspiracy to commit that offence. An offence against s 142.2 of the Criminal Code carries a maximum penalty of imprisonment for 5 years. While, apart from an offence against s 142.2 being limited to Commonwealth public officials and noting that the elements of the statutory offence are not identical to those of the common law offence, there is a clear similarity in scope. Again, that is not to say that it provides some form of limit or ceiling on the penalty available in the present case. The position is, as described by Fullerton J in the Mt Penny sentence judgment at [176], that the statutory analogues are available as a "reference point" but do not confine the sentencing discretion.
While the maximum penalty is at large, even where a maximum penalty has been set, it is not uncommon that courts are required to pass a sentence in circumstances where that maximum penalty has been set very high as a catch-all or for historical reasons: see Markarian v The Queen (2005) 228 CLR 357 at [30]; Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. Nonetheless, a reference point from which bearings can be taken in the otherwise open waters of an uncapped maximum penalty, provides a degree of comfort and stability.

The earlier sentencing decision of Adamson J

As discussed above, the offender was convicted of the present offences at an earlier trial before Adamson J. Her Honour imposed an aggregate sentence of 10 years with a non-parole period of 7 years. The sentence was ordered to commence on 26 May 2017. Her Honour indicated that, had separate sentences been imposed, the sentence for count 1 would have been imprisonment for 8 years, and the sentence for count 3 imprisonment for 7 years.
As a general proposition that sentence operates as a type of "ceiling" on the basis that an offender should not be worse off as a result of exercising his right of appeal: Armstrong v R [2015] NSWCA 273 at [41]-[43]. There are some differences in the case before me, and that before Adamson J. The most notable of these differences are a difference in the elements proved, and that the offender was not assisted or encouraged by Mr Maitland in the commission of the offence, at least in the criminal sense. Having regard the facts established on sentence before Adamson J and subsequently before me, the former makes no material difference. The latter was urged by the Crown as making the case more serious. Even if that be the case, which I doubt, and as to which I have already expressed a view, I do not regard the differences as being of such significance that I would impose a sentence higher than that imposed by Adamson J.

Purposes of sentencing

I have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. Having regard to those purposes, I am satisfied that nothing less than a sentence of full-time imprisonment is appropriate. I additionally have regard to those purposes in setting the sentences. The offender must receive adequate punishment for these serious crimes. Having regard to my finding that the offender is unlikely to reoffend, I do not regard specific deterrence as a matter requiring any significant weight. Nor for the reasons given above, would I mitigate the sentence for the purposes of promoting rehabilitation.
The nature of the offence of wilful misconduct in public office is such that general deterrence, denunciation and the recognition of the harm done to the community must play a significant role in the sentencing exercise. In this regard, Beech-Jones J in R v Obeid (No 12) said (at [137]-[138]): "137 The overwhelming majority of parliamentarians are not motivated by an intention to enrich themselves or their families. Instead, they act in what they believe to be the best interests of the electorate, cognisant that the most likely reward for their service is persistent criticism and ultimately electoral rejection. The continuity and relative strength of our parliamentary democracy is a product of their efforts and the maintenance of public confidence in their honesty. All the work of parliamentarians can be destroyed by the wilful misconduct of only some of their members. Corruption by elected representatives consumes democracies. It destroys public confidence in democratic institutions. It opens up consideration of alternative modes of government, especially those that offer an illusion of security and order. 138 It follows that the need for general deterrence, denunciation and recognition of the harm done to the community are the dominant considerations in determining the appropriate sentence for a parliamentarian convicted of wilful misconduct in public office in these circumstances. …"

An appropriate sentence for each offence and totality between the offences

There is no well-established range of sentences for the offence of wilful misconduct in public office, at least at the level of the present offending. A schedule of sentences is attached to the Mt Penny sentence judgment to which I have had regard. In addition, I have available to me the sentences imposed by Fullerton J in that matter.
Having regard to the various considerations to which I have referred, I regard a sentence of imprisonment of 8 years as the appropriate sentence with respect to count 1. I regard the appropriate non parole-period to be 5 years and 6 months. I regard count 3 as slightly less serious. The decision itself, despite being necessary, was generally regarded as a formality once the consent in count 1 had been granted. Nonetheless, as discussed above, the conduct in count 1 would have been set at nought had the exploration licence not been granted. I regard a sentence of 6 years and 6 months to be appropriate for this offence. I regard the appropriate non-parole period with respect to count 3 to be 4 years and 6 months.
With respect to the non-parole periods referred to above, I have found special circumstances based on the offender's age, the difficulties he has experienced in custody including the strain caused by his family circumstances. Were it not for the difficulties the offender has experienced with his heath and the onerousness of his imprisonment to date, I would not regard the non-parole periods as adequate.
While the two offences are distinct, they were very much part of the one enterprise. The requirement for two acts, the granting of consent to apply and the granting of the exploration licence, and hence the commission two offences, was a product of the legislative scheme. In Pearce v The Queen (1998) 194 CLR 610; [1994] HCA 57 McHugh, Hayne and Callinan JJ said (at [40]) that the "punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn". While their Honours were referring to offence provisions, their observation has some resonance here where to achieve one objective, the offender was required to take two steps as a result of the applicable legislative provisions. Each offence was serious and each merits a significant period of imprisonment. But together, they were the culmination of a single intention - to grant an exploration licence. Indeed, had the offender not committed count 3, it would have likely reflected a decision to abandon his objective and would have been a significant mitigating factor in the determination of sentence for count 1. While there is distinct criminality in the offender's actions in December 2008, some four months after the commission of count 1, I am ultimately of the view that the sentence I propose for count 1 is sufficient to comprehend the total criminality, and on that basis the sentences should be concurrent.

Totality with the sentence imposed by Fullerton J

As has been set out above, the offender is, as a result of the Mt Penny offence, serving a sentence of 9 years and 6 months imprisonment comprising a non-parole period of 5 years and 3 months with a balance of term of 4 years and 3 months. That offence, while separate from the current offences, was committed at around the same time, and similarly involved the offender's abuse of his office. It is appropriate that there be some degree of concurrency between the sentence I impose and that imposed by Fullerton J. In the course of submissions, the Crown noted that the has offender served a period of 1 year and 9 months as a result of the sentence imposed by Adamson J, which should be taken into account as a part of this sentence. The Crown submitted that an appropriate way in which to achieve this would be to backdate the present sentence to a date 1 year and 9 months prior to the commencement of the sentence imposed by Fullerton J, that is to 21 January 2020. The Crown noted that, quite coincidentally, were I to impose the same sentence as Adamson J, the non-parole period of 7 years would expire on 20 January 2027, which is the date on which his current non-parole period expires. The balance of term would be entirely subsumed by the balance of term on Fullerton J's sentence.
The ceiling principle would, in my view, stand in the way of imposing a more severe sentence than that imposed by Adamson J. I have, in any event arrived at a total sentence that is less than the aggregate sentence imposed by her Honour. Thus, were I to accept the Crown's submission that an appropriate commencement date is 21 January 2020, the result will be the offender will serve a total of 1 year and 9 months referable solely to this sentence. Ultimately, I have come to the view that this is an appropriate course.
In reaching the view the sentences should commence on 21 January 2020, I have been persuaded by some particular considerations. First, it should be acknowledged that it would be quite wrong to take the 1 year and 9 month period and suggest that it reflects the total sentence imposed. As indicated above, the sentences are of 8 years and 6 years and 6 months respectively. Further to this, and particular to this case is that the 1 year and 9 months for which the offender is to be given credit is far from 1 year and 9 months of ordinary gaol time. His experience in gaol during that time has been discussed above. As there noted, well over half of the period was spent in solitary confinement. During this time, he was suffering from a medical condition for which he did not receive adequate treatment.
Further, due to the history of the matter, the sentence I impose will be served over two distinct periods, broken by the period between the offender's successful appeal and his return to custody in 2021. It is likely to be the case that a term of imprisonment served in two separate instalments will be more burdensome than a sentence served continuously from its commencement. If nothing else it stretches over a longer period and is consequently likely to result in a greater disruption to an offender's life. Additionally, the period after the offender's release could not be described as a return to normal life. As has been discussed above with respect to the offender's first period of imprisonment, while in custody he developed a "large left sided inguinal hernia" with respect to which he did not receive adequate treatment. The offender having been released to appeals bail on 25 February 2019, underwent, on 30 May 2020, surgery with respect to this condition, followed by what was described as "a prolonged period of recovery". As noted above, the offender returned to custody as a result of the sentence imposed by Fullerton J on 21 October 2021.
It is not possible to make any definitive findings as to how the offender's experience on appeals bail was affected by his earlier imprisonment, and in particular, the physical impacts resulting from the failure of the authorities to provide him with adequate care with respect to his hernia. I would, however, accept that the offender's time on bail following his successful appeal did not mark a return to normal life but was impacted by the failure to provide him with adequate treatment in prison. Additionally, as already observed, quite apart from the offender's physical health, a sentence spread over a longer period can ordinarily be accepted to operate in way that is more onerous than a single, uninterrupted, period of imprisonment.
The interruption to the offender's custody and the hearing of this trial in the latter part of 2022 also had the result that, during the lead up to, and at the time of trial, the offender's custodial situation was impacted by the pandemic. It was made clear in the lead up to the trial that the offender was unable to meet with his counsel until a time very close to the commencement of the trial. While I understand that there was written communication between the offender and his lawyers, this was, as is the common experience, a slow process. I accept that, in the context of a complex case of great seriousness, this would likely have been an additionally stressful experience for the offender.
The onerousness of the 1 year and 9 months imprisonment already served by the offender and the additional factor of the interruption of the sentence are significant matters when considering the Crown's submission that an available (though not the only available) course would be to date the sentence from 21 January 2020. When considering whether the total term that results from the proposed commencement date is capable of comprehending the criminality of the offences proved before me and that proved before Fullerton J, it is additionally necessary to have regard to the conditions suffered by the offender from 21 October 2021 to date and the circumstances I have found to be likely to persist into the future.
Dating the sentences I impose from 21 January 2020 will, when combined with the sentence imposed by Fullerton J, result in an effective sentence of 11 years and 3 months with a non-parole period of 7 years. That is a substantial sentence. The total effective sentence is also less generous than that imposed by Fullerton J with respect to the proportion the non-parole period bears to total (albeit still providing a ratio less than the statutory norm). Nonetheless, had it not been for the matters discussed above, which operate to make that the punishment significantly more burdensome than would ordinarily be expected, I would not have regarded the proposed commencement date as providing for a sufficient degree of cumulation between the sentences in order to properly reflect the criminality represented by all the offences. However, when regard is had to the total effective term of imprisonment and to the nature of that imprisonment, I have come to the view that it is appropriate that the sentences be ordered to commence on 21 January 2020.

Orders

I make the following orders: 1. Ian Michael Macdonald is convicted of counts 1 and 3 on the indictment. 2. In relation to count 1: 1. I impose a sentence of imprisonment of 8 years, comprising a non-parole period of 5 years and 6 months and a balance of term of 2 years and 6 months. 2. The sentence is to commence on 21 January 2020. 3. The non-parole period with respect to this sentence is due to expire on 20 July 2025. The total term with respect to this sentence is due to expire on 20 January 2028. 1. In relation to count 3: 1. I impose a sentence of imprisonment of 6 years and 6 months comprising a non-parole of 4 years and 6 months and a balance of term of 2 years. 2. The sentence is to commence on 21 January 2020. 3. The non-parole period with respect to this sentence is due to expire on 20 July 2024. The total term with respect to this sentence is due to expire on 20 July 2026. 1. The earliest date on which the offender will become eligible to be considered for release on parole is 20 January 2027 pursuant to the sentence imposed upon him by Fullerton J on 21 October 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2023

Criminal Code, Criminal Code Act 1995(Cth)

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