R v Macdonald; R v Edward Obeid; R v Moses Obeid

Catchwords

(2011) 244 CLR 462 Jackson v RHakim v R (1988) 33 A Crim R 413 Jaturawong v R [2011] NSWCCA 168 Kenny v R [2010] NSWCCA 6 Maitland v R[2011] HCA 39 Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221 Postiglione v The Queen (1997) 189 CLR 295[1997] HCA 26 R v Baldwin [2001] NSWCCA 320 R v Bruneau (1963) CarswellOnt 22[1964] 1CCC 97[1964] 1 OR 263, 42 CR 93 R v DW (2012) 221 A Crim R 63[2012] NSWCCA 66 R v Einfeld [2009] NSWSC 119 R v Elzakhem [2008] NSWCCA 31 R v Gent (2005) 162 A Crim R 29R v Edward ObeidR v Moses Obeid (No 17) [2021] NSWSC 858 R v Mammone [2006] NSWCCA 138 R v Nuttall (2011) 209 A Crim R 538[2011] QCA 120 R v Obeid (No 12) [2016] NSWSC 1815 R v Phelan (1993) 66 A Crim R 446 R v Rivkin (2004) 59 NSWLR 284[2004] NSWCCA 7 R v Sellen (1991) 57 A Crim R 313 R v Simon (2003) 142 A Crim R 166[2003] NSWCCA 147 R v Smith (2000) 114 A Crim R 8[2000] NSWCCA 140 R v Wickham [2004] NSWCCA 193 R v Williams (2005) 152 A Crim R 548

Judgment (31 paragraphs)

[1]

The application of the parity principle

Although the Crown submitted that the criminal culpability of each of the offenders as participants in an offence would be reflected in the term of imprisonment I would impose upon each of them, the Crown also acknowledged that parity principles, to which I have referred earlier, would also have application in this sentencing exercise.
The Crown submitted it was open to me to differentiate between the length of the sentences to be imposed on Edward Obeid and Moses Obeid relative to the sentence to be imposed on Mr Macdonald in order to reflect what was, in the Crown's submission, the indispensable role Mr Macdonald agreed to perform as the Minister for Mineral Resources in the execution of the conspiracy and what I found was his pivotal role in its execution.
Although, as I have noted now on multiple occasions, the specific nature and number of the acts of misconduct Mr Macdonald agreed to commit were not the subject of specific agreement at the time the conspiracy was forged, and although the duration of the conspiracy was limited only by reference to the progressive achievement of the unlawful objective, I accept the Crown's submission that the agreement contemplated that Mr Macdonald would commit acts of misconduct for the improper purpose alleged as and when the opportunity presented, and that he agreed to wilfully misconduct himself as a Minister of the Crown on those terms, was a distinct feature of his offending as a co-conspirator and a feature which should attract a lengthy period of imprisonment in order to meet the multiple principles of sentencing in his case.
Mr Macdonald's criminal culpability was not limited to him committing the five acts of misconduct I found proved. It included what I was satisfied was his sharing of critical information about the creation of the Mount Penny Coal Release Area and its inclusion in a pending expression of interest tender process, information he had acquired in his dealings with the Department in June 2008 as the Mount Penny Coal Release Area was under the close consideration of the Department.
That entire course of conduct necessarily informs my assessment of Mr Macdonald's culpability as a Minister of the Crown in agreeing with each of his co-offenders that he would commit acts of misconduct in the public office he held for their benefit or the benefit of those associated with them as high.
The Crown further submitted that in assessing the relative culpability of Edward Obeid and Moses Obeid in accordance with parity principles, it was open to me to impose a lesser sentence of imprisonment on Moses Obeid relative to his father. In the Crown's submission, for Edward Obeid to have entered into an agreement that Mr Macdonald would commit acts of misconduct as a Minister of the Crown for the improper purpose of advancing the financial interests of his co-conspirators and/or their family and associates at a time when he was also a sitting Member of the New South Wales Parliament, is to be contrasted with the position of Moses Obeid relative to both of his co-conspirators.
Although by intentionally entering into the agreement with his father and with Mr Macdonald (a person with whom I was satisfied he had a personal friendship), I am satisfied that Moses Obeid was enthusiastic, to say the least, about the potential that by Mr Macdonald breaching his Ministerial duties and obligations in connection with the granting of an exploration licence at Mount Penny he and his family would benefit financially, it is important to emphasise that unlike each of his co-conspirators, Moses Obeid did not occupy any public office either at the time of the agreement or in the role he played in execution of it. While I have found that he was motivated by the prospect of his family securing a very significant financial return by Mr Macdonald breaching his Ministerial duties of impartiality and confidentiality on multiple occasions, his receipt and commercial use of that information did not constitute a breach of public trust.
In the Crown's submission, despite Moses Obeid actively, indeed proactively, seeking to exploit the value of Mr Macdonald's successive acts of misconduct for the benefit of his family, and succeeding in varying degrees through the structured commercial arrangements first with Monaro Mining NL during the currency of the conspiracy made possible by Mr Macdonald's commission of the fourth and seventh acts of misconduct, and despite, by contrast, Edward Obeid's participation in the conspiracy being less overt when compared with Moses Obeid (at least in so far as was revealed by the evidence at trial) Edward Obeid's criminal culpability as a co-conspirator was more egregious because of who he was when he entered the conspiracy.
Ms Francis submitted that because what she described as the broadly conceptualised conspiracy was executed at Mr Macdonald's sole discretion, and where there is no evidence capable of satisfying me to the criminal standard that Edward Obeid encouraged Mr Macdonald to commit any specific acts of misconduct in furtherance of it, his culpability relative to his co-conspirators as a co-conspirator should be appointed at the lower end of the range. I am not persuaded of that submission.
Although it was no part of the Crown case at trial that Edward Obeid acted in breach of the Parliamentary Code of Conduct by which he was bound at the time the agreement was forged in May 2008 or at any time throughout the process of its execution through to 31 January 2009, I am satisfied that his status as a Member of the New South Wales Parliament when he conspired with Mr Macdonald as his parliamentary colleague of long-standing that in his position as a Minister of the Crown he would breach the Ministerial Code of Conduct in multiple ways and unlimited respects for the improper purpose of advancing the financial interests of the family of which he was the patriarchal head, is in my view to colour Edward Obeid's criminality for sentencing purposes with a different hue to that of his son.
In making that finding I am also prepared to find as a fact, and to the criminal standard, that in entering into the conspiracy with his son, Edward Obeid expected him to pursue the prospect of exploiting the coal reserves which they knew or believed lay under Cherrydale Park on behalf of the family. I am also prepared to find as a fact and beyond reasonable doubt that during the currency of the conspiracy Edward Obeid actively encouraged Moses Obeid to monetise the prospective financial gain as it materialised and that he was in fact consulted as those prospects materialised in the course of his son's various commercial dealings.
In making those factual findings I am not seeking to minimise Moses Obeid's criminal culpability. I do, however, propose to reflect in the sentences imposed upon Moses Obeid and Edward Obeid what I consider to be material differences in their criminal culpability by reason of who they were at the time of the execution of the agreement and throughout its currency, as distinct from measuring Moses Obeid's criminal culpability solely, or even directly, referable to the acts he performed as a conspirator exercising his skill and acumen as a businessman, albeit for criminal purposes.
Despite the Crown accepting that Moses Obeid's culpability was to be contrasted with the gravity of Mr Macdonald's offending as a Minister of the Crown and his father's offending given his status at all relevant times as a Member of the New South Wales Parliament, and although the Crown also acknowledged and accepted Moses Obeid's entitlement to rely upon his prior good character as a factor in mitigation of sentence, the Crown maintained the submission that nothing other than a sentence of full-time imprisonment in excess of two years was an appropriate sentencing outcome for Moses Obeid.
Before turning to consider the circumstances personal to each of the offenders, I should address the effluxion of time between the commission of the offence and today's sentencing proceedings and whether that impacts on sentencing in any material way.

[2]

The question of delay

Ms Francis did not advance the submission that delay operates as a mitigating factor in the sentence to be imposed on Edward Obeid.
Mr Neil submitted that the delay of nine years between May to September 2008 (when I was satisfied the conspiracy was forged and in the process of execution) and the filing of an indictment in this Court in October 2017, and then a delay of four years before verdicts were delivered in July 2021, has been productive of an uncertain suspense for Moses Obeid which should attract weight as a factor in mitigation of his sentence. [40] Mr Martin adopted those submissions claiming the same impact on Mr Macdonald in mitigation of his sentence.
While recognising that the issue of delay is frequently given less prominence in trials of "white collar" offences which are notoriously difficult to detect and successfully prosecute, Mr Neil submitted that the uncertain suspense Moses Obeid has been subjected to in the progress of the matter through to sentence today, a state of suspense heightened by the intervening and protracted ICAC investigation, is a factor to be afforded some weight in mitigation of sentence.
The Crown relied upon affidavit sworn by Mr Tim Fox, the officer in charge of the ICAC investigation, in which he deposed to the time-intensive tasks involved in obtaining and reviewing documents and examining individuals in connection with a large number of complex interrelated events and transactions undertaken as part of ICAC's investigative function under the ICAC Act into the allegations of corrupt conduct by Edward Obeid and Mr Macdonald and other individuals associated with the granting of coal exploration licences launched as Operations Jasper and Acacia. [41] I accept that the same level of complexity obviously impacted the lapse of time between the ODPP receiving the initial brief of evidence from ICAC by mid-2014, following the publication of the Commission's report in July 2013, and criminal charges being laid in July 2015, as it did the procedural path of the trial in this Court through to verdict. An interruption to the trial for some months in 2020 due to the global COVID-19 pandemic also resulted in an unavoidable delay.
As the authorities make clear, it is not every case where there has been a delay, sometimes of many years, in the prosecution of an offender that will result in the amelioration of sentence when that offender is ultimately prosecuted and convicted. Each case depends upon its own particular facts.

[3]

The state of the COVID-19 outbreak in correctional facilities

The relevance of the recent outbreak of the Delta variant of COVID-19 in various correctional centres in New South Wales for sentencing purposes was addressed by the Crown and counsel for the offenders in the sentence hearing and was supported by the tender of evidence in various forms.
The Crown read an affidavit affirmed by Ms Graylin, solicitor, on 1 September 2021 to which she annexed various media reports which dealt with the issue together with publicly available information on the websites of CSNSW current as at 19 August 2021 [43] and the Bar Association of New South Wales current as at 31 August 2021.
At the conclusion of the sentence hearing, I expressed my concern that although the evidence tendered on sentence bearing upon the fact and extent of the COVID-19 outbreak in New South Wales correctional facilities and the institutional responses and dedicated processes implemented to manage that outbreak was current as at the date of the sentence hearing on 10 September 2021, in the event that situation altered materially whilst my sentencing judgment was reserved I should be provided with updated information by the Crown, preferably with the consent of the offenders. [44]
Since that date, information pertaining to the COVID-19 outbreak was compiled by the parties and provided to my chambers. That information comprised an updated version of the CSNSW website publication annexed to Ms Graylin's affidavit dated 15 September 2021 and last updated on 5 October 2021; a transcript of evidence given by Ms Wendy Hoey, Executive Director Clinical Operations, Justice Health, and Mr Kevin Corcoran, Acting Commissioner CSNSW, on 17 September 2021 before the New South Wales Public Accountability Committee's public inquiry into the pandemic; further media articles dated variously between 7 and 28 September 2021; and email correspondence between Ms Graylin and each of Mr Peter Sharp, Manager AV, Strategy and Business Links Corrections Strategy and Policy, CSNSW, Ms Rachel MacFarlane, Incident Controller, St Vincent's Correctional Health, Mr Jeremy Tucker, CSNSW, Ms Wendy Hoey, Justice Health New South Wales, and Ms Helen Hong, Principal Council Officer, Committees, Parliament of New South Wales.
What follows is an analysis of the full complement of evidence tendered on sentence as it relates to the current state of affairs in correctional centres in New South Wales.

[4]

Institutional responses to COVID-19 in custodial environments in New South Wales

Ms Graylin also annexed to her affidavit correspondence of 21 July and 30-31 August 2021 with Jeremy Tucker, Director of Correctional Strategy and Executive Services at CSNSW.
In his email to Ms Graylin dated 31 August 2021, Mr Tucker confirmed that CSNSW, through the coordination of the CSNSW Coronavirus Command Post established in March 2020, was "taking every precaution to protect staff and inmates, and prevent transmission of the virus".
He outlined the protocol for the reception of new inmates as follows: All CSNSW staff working with fresh reception inmates are required to correctly apply and wear PPE at all times. This includes gloves, full sleeve gown, eye wear and KN 95 mask. All new inmates undergo mandatory quarantine for a period of 14 days. On completion of the 14 day quarantine period and two negative test results, the medical provider assesses and clears the inmate to move to an appropriate location. CSNSW protocols mean that any inmate, including new reception inmates who have cold/flu like symptoms or had close contact with a person diagnosed with or suspected of being exposed to COVID-19, is placed in isolation. These inmates are placed in a cell, in a designated area within a court location or correctional centre, and referred to the Justice Health and Forensic Mental Health Network or private health provider for assessment. Inmates return to general population once they are cleared by the health provider. (Emphasis added.)
Mr Tucker's reference to the isolation of new inmates with "cold/flu like symptoms" or close contacts of those who are either confirmed or suspected COVID-19 as vectors of the virus appears to be an additional measure to the housing of all new inmates for the two week isolation period in a cell with one other inmate.
Mr Tucker's advice was reflected in the CSNSW website information also annexed to Ms Graylin's affidavit and the updated publication dated 15 September 2021 which was filed on 8 October 2021. According to that publication, CSNSW and Justice Health accept an ongoing responsibility to identify and monitor those inmates particularly vulnerable to contracting COVID-19 including inmates with chronic illnesses or other premorbid conditions and inmates of advanced age. The updated publication also noted that "to reduce further risk, CSNSW has introduced a 7-day staging process that will ensure inmates transferred from reception centres in metropolitan Sydney are quarantined from the main population in a regional facility for 7-days with a test on day 5 prior to being cleared to join the main population". In his testimony before the New South Wales Public Accountability Committee's public inquiry on 17 September 2021, Mr Corcoran clarified that prisoners who were transferred from metropolitan reception and remand centres to regional correctional facilities were subject to 21 days total quarantine. Ms Hoey confirmed that inmates were tested for COVID-19 on the first and twelfth days of the initial 14 day quarantine period.

[5]

The health of the offenders and their vulnerability to contracting COVID-19

[6]

Mr Macdonald

Only some aspects of Mr Macdonald's current health profile are relevant to an assessment of both his vulnerability to contracting COVID-19 upon admission to custody (in circumstances where he has not received a second dose of the AstraZeneca vaccine or before the full efficacy of his second dose is achieved) and an assessment of the likely sequelae were he to contract the virus.
Mr Macdonald was administered the first dose of the AstraZeneca COVID-19 vaccine on 19 August 2021. [50] Mr Martin submitted that conflicting medical advice, together with shortages of General Practitioner appointments in the Blue Mountains where Mr Macdonald has resided under conditional bail since his conviction, explained the delay in his receiving the first dose of the AstraZeneca vaccine some months after he became eligible to receive it.
Mr Macdonald received the first dose despite receiving medical advice that the AstraZeneca vaccine carried the risk of an adverse reaction due to an episode of deep vein thrombosis in his right leg following the rupture of his right anterior cruciate ligament in 1996. [51] His decision to be vaccinated with the AstraZeneca vaccine rather than awaiting access to the Pfizer vaccine was informed by other medical advice he received to the effect that the Pfizer vaccine would place him at risk of developing Bell's Palsy, a condition characterised by facial muscle weakness or paralysis. [52]
Mr Martin advised that Mr Macdonald's second AstraZeneca vaccine is scheduled for 29 October 2021 after receiving advice from Dr Mak, Mr Macdonald's treating General Practitioner, that he should not receive the second dose before the expiration of 12 weeks after the administration of the first dose. In Dr Mak's letter of August 2021, [53] he noted that "a second vaccination is essential" given Mr Macdonald's "age and propensity for infection". [54]

[7]

Edward Obeid

Edward Obeid has received two doses of the AstraZeneca COVID-19 vaccine. The second dose was administered on an accelerated basis four weeks after the first dose. [55] The dates on which the vaccines were administered were not the subject of evidence.
Dr Adib Obeid, Edward Obeid's General Practitioner, assessed him at a "high risk of mortality" were he to contract COVID-19. His risk profile is heightened by his age, the various comorbidities outlined above, in particular the various heart conditions from which he suffers, and the reduced efficacy of the AstraZeneca vaccine where, as here, the two doses of the vaccine were administered less than three months apart, a very substantial contraction of the recommended 12 week interval between doses, carrying with it a potential reduction in the efficiency of the vaccine. [56]

[8]

Moses Obeid

Moses Obeid received the first dose of the AstraZeneca vaccine on 3 September 2021. He received that vaccine against medical advice that he should avoid all COVID-19 vaccines due to his history of Bell's Palsy following the administration of an influenza vaccine in 2014. [57]
After the first AstraZeneca dose was administered, Moses Obeid experienced a severe headache, neck pain and visual disturbance and was referred to a neurologist. [58]
Moses Obeid has since received medical advice that he should not receive the second dose of AstraZeneca any sooner than the recommended 12 week interval between doses. [59] He is scheduled to receive the second dose on 24 November 2021, [60] approximately two days short of 12 weeks after the first dose was administered.

[9]

The relevance of COVID-19 and the comorbidities of the offenders

While the parties were in general agreement that the outbreak of COVID-19 in custodial settings in New South Wales is a relevant consideration for sentencing purposes, precisely how that state of affairs should be taken into account on sentence was in contention.
Relying on two recent decisions of the Court of Criminal Appeal, Doudar [61] and Scott, [62] the Crown submitted that the Court may take into account the impact of COVID-19 on sentence, including the current suspension of all social and family visits and the reduction in the availability of educational and vocational rehabilitation programs as informing the circumstances in which a sentence of imprisonment will be served, by projecting the scenario at the time of sentence into the term of the sentence, despite the uncertainty those projections necessarily entail.
Counsel for Mr Macdonald and Moses Obeid relied on the decision in Toller [63] where, at [25], Beech-Jones J said: As present circumstances clearly demonstrate, the impact of the COVID-19 pandemic on prisoners is far from over. It can be accepted that sentencing judges are entitled to consider those impacts and the potential imposition of restrictions in the future. However, consistent with long established principle, Cabezuela confirms that it is not a basis for intervention by this Court with a sentence where, after the time of sentence, the offender's conditions of custody have been rendered more onerous because of the imposition of restrictions by the prison authorities in response to the threat posed by a pandemic.
In apparent reliance on that passage, Mr Martin and Mr Neil each submitted that the reality of that situation and that the continued impact of COVID-19 in custodial settings generally, exacerbated by the recent outbreak of the virulent Delta strain and the comorbidities of each of Mr Macdonald and Moses Obeid that expose them to the risk of contracting the virus and the likely severity of symptoms were that to occur, are such that any term of imprisonment I might be minded to impose ought to be served in the community by way of an Intensive Corrections Order. [64]
Ms Francis submitted that the range and extent of Edward Obeid's comorbidities are such that should he contract COVID-19 in prison he would be exposed to a high risk of death. For that reason, she also submitted any term of imprisonment I might be minded to impose should be served by way of an Intensive Corrections Order. [65]

[10]

The identification of an appropriate statutory analogue

When a Court is sentencing for a common law offence, the settled approach in the evaluative exercise entailed by an assessment of the objective seriousness of the particular offending is to use, as a "reference point", an analogous or relevantly similar statutory offence to which a maximum penalty has been prescribed by Parliament.
The authorities which have considered that approach are helpfully summarised by Beech-Jones J in R v Obeid (No 12), a sentencing judgment which concerned the common law offence of misconduct in public office and his Honour's use of s 249B provided for in Part 4A of the Crimes Act 1900 (NSW) in that sentencing exercise.
At [62]-[63] his Honour said: [T]he absence of a statutory regime governing the conduct of parliamentarians means that resort must be had, at least in part, to the common law to ascertain the relevant principles to be applied in sentencing a parliamentarian who has been convicted of wilful misconduct in public office. In particular, as wilful misconduct in public office is a common law offence there is no specified maximum penalty. This is a significant omission because, in sentencing for offences created by statute, the maximum penalty is a crucial component of the sentencing process because "[t]he maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence" and "[a]n increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased" (Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [31]). Instead, in sentencing for common law offences, the Courts adopt an analogous or corresponding statutory offence as a "reference point" for the imposition of a penalty (R v Hokin, Burton and Peisely (1922) 22 SR (NSW) 280 at 291; Jaturawong v Regina [2011] NSWCCA 168; "Jaturawong"; at [5]; Blackstock v Regina [2013] NSWCCA 172; "Blackstock"; at [8]). However, the adoption of the maximum penalty for a corresponding statutory provision as a reference point does not "fetter the discretion" to impose a sentence "which remains at large" and can be greater than that maximum (Blackstock at [11]).
Ms Francis submitted that his Honour's analysis of the authorities as justifying an approach where an analogue provision is used as a reference point and not the maximum penalty ought not to be followed. In her submission, his Honour adopted the erroneous reasoning of this Court in Blackstock, a case which she submitted wrongly applied the principle which emerged from the earlier case of Hokin. Ms Francis submitted that, despite Campbell J's approach in Blackstock (with whom Macfarlan JA agreed), Hokin remains authority for the proposition that a sentencing judge may not permissibly impose a greater sentence for a common law offence than the maximum penalty prescribed for an identified statutory analogue.

[11]

Comparatives

In many sentencing exercises, an assessment of the objective criminality of particular offending may be usually informed by the sentences imposed in other cases and, in that way, the collective experience of sentencing courts in the application of unifying sentencing principles is available. That exercise is, however, invariably undertaken where an offence against a criminal statute is under consideration and there is a prescribed maximum penalty against which useful comparisons can be made. That is not this case.
I was provided by the Crown with a comparative table of cases, [75] none of which concern a common law conspiracy to commit the common law offence of misconduct in public office and only a relative few concern the analogue offence under s 142.2 of the Criminal Code (Cth). None of those cases have any utility as comparators as none involve a Minister or Member of Parliament as the relevant Commonwealth public official and none involve conduct in any way comparable to the gravity of Mr Macdonald's misconduct as a Minister of the Crown in entering into a conspiracy of the scope and nature of the conspiracy I found proved.
I do however note and respectfully endorse the observations of Muir JA in R v Nuttall, [76] a case which concerned the sentence imposed on a Minister of the Crown convicted of multiple counts of official corruption contrary to s 87 of the Criminal Code (QLD). His Honour 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 respondent abused his position as Minister of the Crown, an office at the pinnacle of the structure of government in this state. Ministers have responsibility for the affairs of the departments over which they preside.
While I do not treat the cases on the schedule as being of no assistance at all in guiding the exercise of the sentencing discretion in this case, they have been of only very limited assistance and do not provide any useful sentencing pattern or range.
That said, the following statements of sentencing principle are able to be discerned from the cases of misconduct in public office involving parliamentarians or Ministers which this Court and other state intermediate courts have dealt with in the past: [77] 1. emphasis is placed on the onerous duty imposed on parliamentarians or Ministers and the strictness with which a breach or breaches of that duty will be dealt; 2. whilst loss or damage occasioned (or a profit made) by the offending is relevant in assessing the objective seriousness of the offending, the real damage caused by the offending is to the institutions of government and public confidence in them; 3. considerations of general deterrence and denunciation predominated over other sentencing considerations; and 4. the prior good character of the offender is afforded less weight in the sentencing process than it would for other offences.

[12]

The personal and subjective circumstances of the offenders that necessarily includes character

[13]

The question of good character

Edward Obeid has been convicted of misconduct in public office (an offence he committed in 2007) and for which he was sentenced in December 2016 to 5 years' imprisonment with a non-parole period of 3 years. Although he had not been convicted of that offence at the time he became a party to the conspiracy the subject of this sentencing exercise, he is, by reason of that prior conviction, disentitled to the leniency that might otherwise be afforded him on account of good character. [79]
Neither Mr Macdonald nor Moses Obeid has any relevant previous convictions. [80] For that reason, both are entitled to be treated as a person of prior good character for sentencing purposes. However, for the reasons which follow, very little weight will be given to Mr Macdonald's good character. [81]
It is well established that in cases of corruption and more generally in offences generically described as "white-collar" offences, prior good character is frequently afforded less weight than it might otherwise attract as a mitigating factor on sentence, [82]
It is not "white collar" offending per se that entitles a sentencing court to give less weight to evidence of good character, but rather, the nature and circumstances of that type of offence that may permit that approach. [83]
One of the most pervasive differentiating factors identified in the authorities is the relationship between the offender's "good" character and the commission of the offence. In this case, so far as concerns Mr Macdonald, in my view, that relationship is neither indirect nor tenuous, [84] since it involves the exploitation of Mr Macdonald's position as Minister and the trust reposed in him in that capacity.
Both in applying principles of parity to which I have already referred, and more generally as deserving of weight in mitigation of sentence, it is worthy of emphasis that Moses Obeid has no prior convictions. He is also described by those whose testimonials were tendered on sentence as a person who, prior to this offending, had an unblemished reputation and was highly regarded in business circles as a person who was motivated and hardworking. He is entitled, in my view, to have his good character weigh in his favour in the ultimate imposition of sentence for those reasons.
As I have sought to make clear in my sentencing remarks, unlike the position of Mr Macdonald, Moses Obeid's good character was independent of his offending conduct in the sense that it did not facilitate it. Insofar as I can discern from the extensive evidence at trial, Moses Obeid's role as a co-conspirator, including the many commercial dealings with his lawyers and with third parties, was performed without his good character having any bearing at all on those dealings or their ultimate success. He may have been regarded by those with whom he dealt as having sound commercial and business acumen, but there is nothing in the evidence to indicate that his contractual partners gave any weight at all to his good character in their dealings with him. Although in considering the question of Mr Brook's credibility in the verdict judgment, I expressed some doubt as to whether he had truthfully accounted for his dealings with Moses Obeid, [85] that does not allow me to find as a fact for sentencing purposes that Moses Obeid utilised his business standing or his reputation more generally to influence Mr Brook to be less than candid in his dealings with Monaro Mining NL.

[14]

The personal and subjective circumstances of the offenders

Evidence was also tendered on behalf of each of the offenders as to the state of their physical and mental health as a factor informing their personal and subjective circumstances. It was submitted on behalf of each of the offenders that their ill health should attract considerable weight in the ultimate determination of a just and proportionate sentence and that it would support a finding of special circumstances so as to reduce the length of the non-parole period relative to the overall term of imprisonment.

[15]

The subjective circumstances of Moses Obeid

Moses Obeid is currently 52 years of age. As at the date of the offending in 2008, he was 39 years of age.
Moses Obeid relied on the following character testimonials on sentence:

A letter from Nicole Obeid, Moses Obeid's wife of 19 years, dated 18 August 2021
A letter from Matthew Sweeney, Moses Obeid's friend of six years, dated 18 August 2021
A letter from Daniel Traylen, Moses Obeid's friend of 11 years, dated 20 August 2021
A letter from Roberto Araneda, the owner of a café frequented by Moses Obeid whom he has known for seven years, dated 18 August 2021
A letter from Debbie Dickson, a friend and former business associate of Moses Obeid whom he has known for 25 years, dated 23 August 2021

Those testimonials describe him in different ways but collectively, I accept, he is considered by them to be a person of character, dignity, compassion and integrity with an abiding love and commitment to his teenage children and to his extended family. Others speak of him as a competent and reliable businessman willing and able to provide support and advice when it is asked of him.
Nicole Obeid and Moses Obeid's long-standing personal friend Mr Traylen in particular confirm the medical evidence tendered on sentence that, to their observation, Moses Obeid's physical and mental health has slowly deteriorated following the launching of the investigation by ICAC in November 2011 and the gradual disintegration of his family life and the progressive social isolation which has occurred over the last 10 years, to a significant degree responsive to the relentless negative media attention to which he has been subjected.

[16]

Moses Obeid's physical and mental health

Moses Obeid suffers from ischaemic heart disease which required the insertion of a stent to the main coronary artery in 2018. [86] He has also suffered from chronic migraine and cluster headaches since 2014. [87]
On 6 September 2021, he presented at the Emergency Department at St Vincent's Hospital with an intense left-sided headache, neck pain and visual disturbance following the administration of the first dose of the AstraZeneca vaccination three days earlier. [88] Following further consultation with Dr Hameiri, his General Practitioner, Moses Obeid was referred for a brain angiogram to investigate the cause of the headache. [89] At the date of the sentence hearing, a consultation with Dr Sutton, neurologist, was scheduled for 14 September 2021.
On 5 October 2021, further evidence was filed and served on behalf of Moses Obeid. That evidence comprised:

Letter from Dr Sutton to Dr Hameiri dated 14 September 2021.
Letter from Dr Sutton dated 28 September 2021.
A further letter from Dr Sutton to Dr Hameiri dated 21 September 2021. [90]

That correspondence confirmed that Moses Obeid has experienced cluster headaches in 2014, 2018, 2019, 2020 and 2021. During the more recent onsets, each episode lasted for around three hours and occurred daily over a period of around nine days. Each episode is associated with extremely severe left retro-orbital pain (pain behind the left eye), left side ptosis (drooping of the eyelid), watering and redness of the eyes and nasal congestion. More recent episodes have also associated with retro-auricular pain, jaw discomfort, pain in the left shoulder, numbness in the left hand and wrist swelling.
Dr Sutton prescribed Verapamil as a preventative medication and ordered an MRI study.
Upon further consultation with Mr Obeid on 21 September 2021, Dr Sutton reported that no abnormalities were detected on the MRI study and that the frequency of the headache had subsided from four episodes per day to one episode per day. He also reported that the headaches were relieved by use of an Imigran injection which Mr Obeid self-administers and that he had prescribed Mr Obeid an increased dose of Verapamil.
Dr Sutton also observed that with the outcome of Mr Obeid's sentence proceedings pending, which may involve a sentence of imprisonment, Mr Obeid is concerned that if his cluster headaches occur in custody, and they occur at night, he will be without access to injectable Imigran. Dr Sutton strongly supported Mr Obeid having access to that medication whilst in custody.

[17]

The subjective circumstances of Mr Macdonald

Mr Macdonald is currently aged 72. He was aged 59 at the time of the offending.
Mr Macdonald relied on the following character testimonials on sentence:

A letter from Andrea Brown, Mr Macdonald's stepdaughter whom he has known since her childhood, dated 30 August 2021
A letter from Sasha Macdonald, Mr Macdonald's daughter, dated 3 September 2021
A letter from Anita Gylseth, Mr Macdonald's wife, dated 25 August 2021
A letter from Anita Macdonald (as Ms Gylseth was then called) dated 26 April 2017
A letter from John Della Bosca, a former Parliamentary colleague of Mr Macdonald, dated 26 August 2021
A letter from Colin Donegan, a mining consultant who met regularly with Mr Macdonald in a professional capacity while he was the Minister for Mineral Resources, dated 2 September 2021
A letter dated 3 September 2021 from Terrence Healey of Counsel, a personal friend of Mr Macdonald of 32 years (initially through a mutual interest in cattle breeding and later when Mr Healey provided legal advice to the Australian Labor Party) [99]

As at May 2008, Mr Macdonald held the office of Minister for Mineral Resources, having occupied that office between 2005 and 2010. [100] He retired from political life in June 2010.
He is currently self-employed with his wife in a small business offering cleaning services.
Mr Macdonald graduated from Latrobe University with a Bachelor of Arts, Honours in History and Philosophy. He served as President of the Australian Union of Students from 1974 until 1976.
Prior to entering Parliament as a Member of the New South Wales Legislative Council in 1988, he worked in various roles within the New South Wales public service, including five years as a research officer to the Attorney-General and five years as Senior Policy Officer to the Minister for Housing and Aboriginals.
Mr Macdonald held various portfolio positions as a Minister before he retired from politics in June 2010. They included Minister for Primary Industries, Minister for Natural Resources, Minister for State and Regional Development, Minister for Major Events and Minister for Energy.

[18]

Mr Macdonald's physical health

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.
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.
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. [101] Dr Ellard and Professor Borody gave evidence on the stay application.
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.
Mr Macdonald's chronic constipation predated the imposition of a sentence of imprisonment following a trial for an unrelated offence in 2017. [102] 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, [103] 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 ingenial hernia… the hernia containing bowel and bladder within it". [104] 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. [105]

[19]

The subjective circumstances of Edward Obeid

As at the date of sentence, Edward Obeid is 77 years of age. He was aged 64 at the time of the offending.
Edward Obeid relied on the following character testimonials on sentence:

A letter from Gemma Vrana, his daughter, dated 27 August 2021
A letter from Maree Obeid, his daughter in law, dated 28 August 2021
A letter from Edward Obeid Jr Jr, his grandson, dated 28 August 2021
A letter from Angelica Saab, his granddaughter, dated 28 August 2021
A letter from Edward Obeid Jr, his son, dated 28 August 2021
A letter from Judith Obeid, his wife, dated 1 September 2021
A letter from Olivia Achie, his granddaughter, dated 1 September 2021
A letter from Rebecca Joummaa, his daughter, dated 1 September 2021
A letter from Patricia Lees, his neighbour of nine years, dated 1 September 2021 [116]

The testimonials from Edward Obeid's immediate family members and extended family members, including his grandchildren, collectively describe their husband, father and grandfather as a kind, generous, dignified and loving family man who they continue to hold in the highest esteem not only for his enduring commitment to his family but for his tireless work for the benefit of the Lebanese community here and abroad over the course of his working life.
I also note Edward Obeid's public service in other respects. He was a part-time Commissioner of the Ethnic Affairs Commission from 1981 to 1985, Vice President of the Ethnic Press Association of Australia in the same timeframe and also a member of the Board of Governors of the Law Foundation of New South Wales and a Trustee of the Art Gallery of New South Wales. I also note the length of his parliamentary career from 1991 to 2011.
I acknowledge the unwavering love and respect Edward Obeid's family have for him and I accept they are genuinely fearful at what they appear to have understood will be the judgment of this Court involving the imposition of a sentence of imprisonment at this time in his life. They confirm what is reflected in the medical evidence, that Edward Obeid's mental and physical health deteriorated following his release from custody in December 2019, with an increasing need for assistance in attending to his daily routine.

[20]

Edward Obeid's physical and mental

Edward Obeid suffers from a variety of heart conditions including paroxysmal atrial fibrillation (or an irregular heartbeat), coronary artery disease and ischaemic heart disease. Coronary artery bypass surgeries were performed in 1995 and 2005. Cerebral hypoperfusion (inadequate blood flow to the brain) was initially diagnosed in 2005. [117] He suffered an acute myocardial infarction in December 2020 which required the insertion of a stent. [118]
Edward Obeid has suffered multiple acute lacunar strokes (a type of ischaemic stroke) in early 2020 [119] and several transient ischaemic strokes in 2016. [120] As at 5 February 2020, Dr Salman Khan, neurologist, confirmed that he was receiving the maximum secondary prophylaxis to address the risk of suffering further ischaemic strokes without any need for anticoagulation. [121] Referable to an MRI scan performed in October 2020, Dr Sebastian Fung, radiologist, assessed that Mr Obeid had mild to moderate cerebral involutional change (shrinking of brain tissue) but no evidence of further acute infarction. [122]
Edward Obeid also suffers from a range of other conditions including hypertension (high blood pressure), hyperlipidaemia (high cholesterol), osteoarthritis and gastro-oesophageal reflux disease. He also suffered a prolonged episode of Guillain Barre Syndrome (a condition in which the immune system attacks the nerves) after receiving an influenza vaccination. [123] The date as to when that occurred was not the subject of evidence.
Edward Obeid also suffers from Diabetes Mellitus Type 2 which is currently well controlled. [124]
In a report dated 6 September 2021, Dr Reutens, consultant psychiatrist, diagnosed Mr Obeid with an adjustment disorder with an anxiety disorder. She also noted Mr Obeid's history of depression which has been treated with an anti-depressant medication. [125] There was no evidence as to how long Mr Obeid has suffered from that condition. Dr Reutens noted that Mr Obeid experienced disturbed sleep and had some memory loss. Dr Reutens confirmed that Mr Obeid does not have dementia but he does have a mild neurocognitive disorder which required follow-up in six months. She noted the findings of Dr Batchelor, neuropsychologist, dated August 2021 of a "mild to moderate reduction in speed of information processing and the ability to determine the temporal content of information after delay. Dr Reutens administered cognitive screening tools under the Montreal Cognitive Assessment. Mr Obeid scored 21 out of 30 with the main deficiencies in language and memory recollection.

[21]

The Crown's generalised response to the evidence adduced by the offenders

The Crown tendered a New South Wales Health publication titled "Justice Health and Forensic Mental Health Network Overview of Services" dated October 2021 [132] and a letter from Peter Severin, Commissioner of Corrective Services, dated 26 July 2019 prepared at a time in the pre-trial phase when Mr Obeid's health as a serving prisoner was an issue.
This evidence was tendered to address the systems that are available to manage and address the complex of health concerns of each of the three offenders as sentenced prisoners. [133]
The Health Network Overview of Services publication explains that the Justice Health and Forensic Mental Health Network (the Health Network) is part of New South Wales Health and is responsible for providing health care to prisoners within the New South Wales correctional system. It provides that an interdisciplinary team of doctors, nurses, psychiatrists and allied health staff is available to inmates in correctional facilities.
In addition to the screening procedures currently in place due to the COVID-19 pandemic addressed elsewhere in these sentencing remarks, the same publication provides that new inmates are subject to a Reception Screening Assessment on reception and, as appropriate, the administration of a Chronic Disease Screen to plan and provide for the ongoing care of identified medical conditions. Thereafter, what is described as an Integrated Care Service is responsible for monitoring an inmate's chronic and complex health conditions. A Chronic Case Clinical Pathways Service is also designed to work with the Integrated Care Service to provide care to those inmates identified as suffering from a chronic disease by coordinating multidisciplinary care and the ongoing assessment of an inmate to ensure against the risk of an inmate's medical conditions being exacerbated in the custodial setting.
Internal and external medical appointments are coordinated by the Medical Appointments Unit, including liaising with hospitals to schedule surgery, including elective surgery, and specialist treatment where that is warranted.
The mental health of all adult inmates is the responsibility of the Custodial Mental Health Service. Specialised mental health units are available in various correctional facilities.

[22]

Consideration

Having considered all of the evidence tendered on sentence as bearing upon the current physical and mental health of the offenders and the material tendered by the Crown which is not challenged, I am obliged to proceed to sentence on the basis that each of the offenders will receive adequate treatment whilst in custody and that their individual medical needs as sentenced prisoners will be identified upon admission and progressively monitored and addressed as symptoms present or their condition deteriorates, including the need for external specialist treatment if required.

[23]

The question of remorse

The Sentencing Act recognises that where an offender adduces evidence that they have accepted responsibility for their actions and have acknowledged any injury, loss or damage they have caused or have made reparation for it, that may operate in mitigation of sentence. [137]
No evidence of remorse was adduced by any of the offenders. No acknowledgement was forthcoming from any of them as to the damage done to the institutions of government and the public confidence in them by their actions. Although they are not to be additionally punished by taking that attitude, their lack of remorse disentitles them to its mitigating effect.
Additionally, although the evidence at trial allowed me to find as a fact that a considerable profit resulted from the commercial use Moses Obeid put the information that was derived from Mr Macdonald's successive acts of wilful misconduct, and although there is no evidence that there has been any disgorging of those profits from any of the companies over which members of the Obeid family exercise legal or fiduciary control, neither Moses Obeid nor Edward Obeid are to be additionally punished for that fact.
As to whether any of the offenders are unlikely to re-offend such as to allow for positive findings that they have good prospects of rehabilitation as a factor in mitigation, [138] I am satisfied that despite an absence of remorse or contrition, or any evidence that might allow me to find as a fact that any of the offenders have any insight into their offending, in circumstances where neither Mr Macdonald nor Edward Obeid currently occupy any position of public trust and, given the nature of their offending, they never will again, I am able to find, on the probabilities, that in light of their age and the sentence of imprisonment they will serve before being entitled to release on parole, they are unlikely to have the opportunity to criminally misconduct themselves in the future.
I am, however, able to make a positive finding on the probabilities that, inter alia, by reason of Moses Obeid's age and Dr Nielssen's report, he has sound prospects of rehabilitation and he is unlikely to reoffend.

[24]

The cooperation of the offenders during the trial

When read together, ss 21A(3)(l) and 22A(1) and (2) of the Sentencing Act allow for pre-trial disclosure by an accused to be taken into account as a mitigating factor in sentencing, including where disclosures are made prior to or during the trial, with the proviso that any reduction in sentence is not disproportionate to the nature and circumstances of the offence.
In its written submissions, the Crown recognised the generally cooperative manner in which the trial was conducted by and on behalf of the offenders. I also acknowledge that the pre-trial directions I issued in 2018 in order that objections to aspects of the Crown case be dealt with in an orderly fashion were complied with to the credit of all participating counsel. I also note that in large part the continuity and provenance of documents was not disputed and that there were prepared from time to time during the course of the trial lengthy agreed facts, [139] and ultimately no opposition to the Crown's tender of a number of summaries prepared pursuant to s 50 of the Evidence Act. [140] Finally it must fairly be said that the cross-examination of the Crown witnesses was largely focused and concise with minimal duplication.
I will afford weight in the sentences to be imposed on each of the offenders for their cooperation.

[25]

Special circumstances

A wide range of subjective considerations might attract a finding of special circumstances justifying an alteration in the statutory ratio of 75 per cent in s 44 of the Sentencing Act between the term of imprisonment that an offender must spend in custody before being eligible to be considered for release to parole and the balance of the term of imprisonment imposed.
Although the factors relevant to a finding of special circumstances are not limited to altering the statutory ratio to allow for a longer period on parole where an offender's sound prospects of rehabilitation warrant that finding, in many cases that is a factor which will be worthy of weight.
In this case, Moses Obeid is the only offender about whom I have made a positive finding of sound prospects of rehabilitation and the only offender who faces imprisonment for the first time. I am also conscious of his current medical condition which carries the risk of the onset of migraine headaches requiring the immediate administration of intravenous medications. Whilst I cannot do other than proceed to sentence on the basis that Justice Health will be aware of Moses Obeid's susceptibility to the debilitating impact of migraine headaches, and that arrangements will be made to ensure he has access to medication as and when required, I accept Moses Obeid's experience of custody for the first time, at the age of 52, will be particularly onerous.
A finding of special circumstances is warranted in his case for those reasons. I also take into account the conditions of custody to which he will be subject whilst ever the impact of the current health pandemic is dealt with in the correctional system in the ways I have outlined above.
It is well recognised that an offender's ill health [141] and advanced age may also operate to allow a court to vary the statutory ratio allowing for a longer period on parole. [142] Although unlike Moses Obeid this will not be the first time Edward Obeid or Mr Macdonald have been sentenced to imprisonment, the Crown accepted that fact should not disentitle either of them to a finding of special circumstances when their age, coupled with the particular health issues experienced by them at this time, are taken into consideration.
I am satisfied that the likely hardship Edward Obeid will experience in custody on account of his advanced age and increasing frailty, coupled with the complex of his medical conditions which will require close monitoring by Justice Health generally and in the current pandemic even more closely, will justify a finding of special circumstances in his case.

[26]

Ian Michael Macdonald 1. For the conspiracy for which Ian Michael Macdonald was convicted on 19 July 2021, I impose a sentence of imprisonment for 9 years and 6 months which, after a finding of special circumstances, comprises a non-parole period of 5 years and 3 months with a balance of term of 4 years and 3 months. 2. That sentence is to date from today, 21 October 2021. 3. Mr Macdonald will be eligible to be considered for release to parole on 20 January 2027. 4. The sentence of imprisonment will expire on 20 April 2031.

[27]

Edward Moses Obeid 1. For the conspiracy for which Edward Moses Obeid was convicted on 19 July 2021, I impose a sentence of imprisonment for 7 years which, after a finding of special circumstances, comprises a non-parole period of 3 years and 10 months with a balance of term of 3 years and 2 months. 2. That sentence is to date from today, 21 October 2021. [144] 3. Edward Obeid will be eligible to be considered for release to parole on 20 August 2025. 4. The sentence of imprisonment will expire on 20 October 2028.

[28]

Moses Edward Obeid 1. For the conspiracy for which Moses Edward Obeid was convicted on 19 July 2021, I impose a sentence of imprisonment for 5 years which, after a finding of special circumstances, comprises a non-parole period of 3 years with a balance of term of 2 years. 2. That sentence is to date from today, 21 October 2021. 3. Moses Obeid will be eligible to be considered for release to parole on 20 October 2024. 4. The sentence of imprisonment will expire on 20 October 2026.

[29]

R v Moses OBEID 2015/212851 No. Detail Case CROWN Crown Sentence Summary for Ian Macdonald: - CAN issued 17 July 2015 - Notice of Committal dated 30 May 2017 A - Indictment presented 11 Feb 2020 IM - NSW criminal history as at 23 July 2021 - AFP criminal history as at 24 March 2020 - Custodial History as at 26 July 2021 Crown Sentence Summary for Edward Obeid: - CAN issued 17 July 2015 B - Notice of Committal dated 30 May 2017 EO - Indictment presented 11 Feb 2020 - NSW criminal history as at 23 July 2021 - Custodial History as at 26 July 2021 Crown Sentence Summary for Moses Obeid: - CAN issued 17 July 2015 C - Notice of Committal dated 30 May 2017 MO - Indictment presented 11 Feb 2020 - NSW criminal history as at 30 March 2020 D Justice Health document - "Overview of Services" - October 2020 IM, EO, MO E Letter from Peter Severin, Commissioner, Corrective Services to Fullerton J dated 26 July 2019 EO F (1) Report of Dr Katherine Ellard - 10 July 2019 IM (2) Report of Dr Katherine Ellard - 15 July 2019 G Various materials relating to the nature and extent of the outbreak of COVID-19 in correctional centres in New South Wales filed after the sentence hearing. IM, EO, MO OFFENDERS Macdonald Letter from Dr Jonathan Mak to Fullerton J [August 2021] plus attachments: (A) Letter from Prof T Borody to Dr Mak - 24 August 2021 (B) Referral to Prof Phillip Stricker by Dr Mak - 25 August 2021(C) Referral to Centre for Digestive Diseases by Dr Mak - 25 August 2021 1 (D) COVID-19 vaccination report - 19 August 2021 IM (E) Justice Health - Patient Self-Referral - 14 October 2017 (F) Letter from Prof T Borody to Justice Health - 19 February 2018 (G) Letter from Dr Leanne Cheung to Justice Health - 1 May 2018 2 Letter from Prof Borody to Fullerton J dated 2 July 2019 attaching report of Dr Norman Janu, surgeon, dated 18 June 2019 IM Character references: (A) Andrea Brown - 30 August 2021 (B) Anita Gylseth - 25 August 2021 17 (C) Anita Macdonald - 26 April 2017 IM (D) John Della Bosca - 26 August 2021 (E) Colin Donegan - 2 September 2021 (parts only) (F) Sasha Macdonald - 3 September 2021 (G) Terrence Healey - 3 September 2021 Letter from Anita Gylseth to AFCA - 20 February 2019 - plus attached letters: - From NAB to Anita Gylseth trading as Cleaning Services - 7 February 2019 - From NAB to Anita Gylseth - 7 February 2019 18 - From Anita Gylseth to NAB - 15 February 2019 IM - From St George to Anita Gylseth - 11 June 2015 - From Westpac to Anita Gylseth - 12 June 2015 - From Westpac to Gina Brown - 11 June 2015 - From St George to Anita Gylseth - 25 June 2015 Three articles from The Sydney Morning Herald: 19 - "Keeping up with Jones: the history of broadcaster's praise" - 27 May 2017 IM - "The secret diary of Ian Macdonald" - 23 September 2017 - "'Lucky' at liberty to spill the beans" - 10 February 2020 20 Letter from Prof Borody - 9 September 2021 IM 21 Report on COVID-19 and the impact on New South Wales prisoners - Kirby Institute - UNSW Sydney IM 22 The Bugmy Bar Book - NSW Public Defenders - 17 August 2021 IM, MO 23 Handwritten note - Dr Mak - 29 May 2021 plus typed transcript IM 24 Handwritten letter from Dr Mak to Fullerton J plus Health Summary (and typed transcript) - 21 July 2021 IM E Obeid Index - Expert Reports - Edward Obeid: (A) Dr Sharon Reutens, Consultant Psychiatrist - 6 September 2021 (B) Dr Adib Obeid, GP - 2 September 2021 (C) Dr David Roy, Cardiologist - 12 August 2021 3 (D) Dr John Chang, Consultant Ophthalmic Surgeon - 17 March 2020 EO (E) Dr Pascal Bou-Haidar, Radiologist - 30 January 2020 (F) Dr Sebastian Fung, Radiologist - 19 October 2020 (G) Dr Salman Khan, Neurologist - 5 February 2020 (H) Discharge summary - North Shore Private Hospital - 28 December 2020 (I) Dr Michael Delaney, Ophthalmic Surgeon - 17 December 2019 Index - Character references - Edward Obeid: (A) Gemma Vrana - 27 August 2021 (B) Maree Obeid - 28 August 2021 (C) Eddie Obeid Jnr Jnr - 28 August 2021 4 (D) Angelica Saab - 28 August 2021 EO (E) Edward Obeid Jnr - 28 August 2021 (F) Judith Obeid - 1 September 2021 (G) Patricia Lees - 1 September 2021 (H) Olivia Achie - 1 September 2021 (I) Rebecca Joummaa - 1 September 2021 M Obeid Character references: (A) Nicole Obeid - 18 August 2021 5 (B) Matthew Sweeney - 18 August 2021 MO (C) Daniel Traylen - 20 August 2021 (D) Roberto Araneda - 18 August 2021 (E) Debbie Dickson - 23 August 2021 6 Letter from Adam Goss, St Joseph's College, to Fullerton J - 20 August 2021 MO 7 Report of Dr Olav Nielssen, Psychiatrist - 6 September 2021 MO 8 Report of Dr Daniel Hameiri - 31 August 2021 MO 9 Medical certificate - Dr Theo Penklis - 3 September 2021 MO 10 Report from St Vincent's Hospital Emergency Department - 6 September 2021 MO 11 Report of Dr Hameiri - 7 September 2021 MO 12 Handwritten note from Dr Hameiri to Dr Sutton - 7 September 2021 MO 13 Letter from Dr Theo Penklis to Dr George Lianos - 29 January 2020 MO 14 Letter from Dr Marc Coughlan to Dr Penklis - 27 June 2015 MO 15 Letter from Dr Penklis to Dr Keith Roberts - 16 July 2015 MO 16 Letter from Dr Hameiri - 17 August 2021 MO 25 Chapter 33: Corrupt conduct findings, s 74A(2) statements and other matters MO, IM, EO 26 Three letters from Dr Ian Sutton, Consultant Neurologist, dated 14, 21 and 28 September 2021 MO

[30]

ANNEXURE 2: SCHEDULE OF COMPARABLE CASES Offence Circumstances of offence Objective seriousness Key mitigating factors Penalty R v Hoyn [2020] NSWDC 834 (plea: not guilty) Offence: four counts of the common law offence of misconduct in public office and others The offender was a police officer who improperly accessed personal information on the police information systems and provided details about that personal information to others between July and December 2018 "It can be seen from my recitation of the nine factors that a number of them are not present in this case, putting this matter lower in the range of objective seriousness than others to which I will now refer." [23] Subjective factors: CCO for counts three and four, full time custodial order to be served by way of ICO for counts five and six maximum penalty of analogue provisions: Pt 4A of the Crimes Act 1900 (NSW), 7 years Significant mental health problems, PTSD R v Obeid (No 12) [2016] NSWSC 1815 (plea: not guilty) Subjective factors: Prior good character Mr Obeid's reaction to the harm that his own conduct has caused to his family Extensive, negative, media coverage (afforded some weight but not much) Offence: one count of the common law offence of wilful misconduct in public office The offender was a Member of the Legislative Council of NSW. In August 2007 he made representations to a senior officer of the Maritime Authority, to secure lease renewals for two Circular Quay businesses that he and his family had a financial interest in "a very serious example of the offence because of the onerous nature of the duty owed by him as a parliamentarian compared to other such officials and the extent of his departure from it." [89] No prospect of him offending again 5 years imprisonment (non-parole period of 3 years) maximum penalty of analogue provisions: offences found in Pt 4A of the Crimes Act 1900, specifically s 249B(1) (corrupt commissions or rewards), 7 years Good prospects of rehabilitation Appeal against conviction and sentence dismissed (see Obeid v R [2017] NSWCCA 221) Age, health and reduced life expectancy taken into account in the mix of factors but not to any significant degree Other factors: No loss or damage was occasioned Admissions made and agreements reached in the course of the trial R v Pieper [2014] NSWDC 242 (plea: guilty) Subjective factors: no criminal history Offence: six counts of common law offence of misconduct in public office good character including at work maximum penalty of analogue provisions: ss 156 (larceny by clerks/servants), 159 (larceny by clerks in public service) and 160 Crimes Act 1900 (embezzlement in public service), 10 years The offender was the general manager of a County Council. He orchestrated various frauds that resulted in his misappropriating over $350,000 between January 2001 and December 2010 "The amount of money involved in these matters is substantial and the period of time over which the offences were committed is lengthy … there are clearly a multiplicity of dishonest acts and several of them involved an obvious level of sophistication in relation to both their commission and the steps taken to avoid them being uncovered … the offences were committed for the purpose of financial gain … Overall, I would regard the level of criminality involved in each of these matters as quite significant and each are objectively very serious." [49] to [52] Low level risk of re-offending 4 years and 9 months imprisonment (10 percent discount) (non-parole period of 3 years) Prospects of rehabilitation good and may improve further Other factors: Some prospect of the money being repaid Hughes v R [2014] NSWCCA 15 (plea: guilty) Subjective factors: Offence: two counts of wilful misconduct in public office; "In my view the objective seriousness of the misconduct of a holder of public office offences falls at the upper range of objective seriousness for offences of that kind. In coming to that view I have taken into account and accepted the opinions of Ms Brigida and Dr Ristogi that the [applicant's] mental health history has played some part in the commission of these offences. However, I am unable to agree with Ms Brigida that the [applicant's] mental health history played 'a very big part' in her criminal offending." [42] 21 years of age 7 months for first count; 18 months for second count (non-parole period of nine months) two offences of giving false evidence to the Police Integrity Commission contrary to s 107 Police Integrity Commission Act 1996 (NSW): maximum penalty 5 years The offender was a police officer who accessed a police database and created false intelligence reports in 2009 and 2010 to "cover her tracks" having failed to report admissions made by persons involved in stealing a car to help her then boyfriend. She gave false evidence to the Police Integrity Commission in the course of the investigation of the offences in 2011 On appeal: "… his Honour was correct to treat the misconduct in public office offences as having a high level of objective seriousness." [50] Significant mental health issues Appeal dismissed Less likely to re-offend based on her clinical condition These are all that are apparent from the appeal decision and the underlying decision was never reported Blackstock v R [2013] NSWCCA 172 (plea: guilty) Subjective factors: Offence: common law offence of misconduct in public office The offender was a project officer employed by RailCorp, who between 2003 to 2007 included a business (in which he secretly held an interest) on a list of possible contractors for consideration by his superiors and then "played a part in the allocation of work" to the business "... the objective gravity of this matter is substantial. Millions of dollars of public money have gone through what is in effect a "bodgie" company set up by this man, deliberately for the purpose of obtaining work to which he otherwise would not have been entitled." [53] 40 years old 4 years (25 percent discount) (non-parole period of 3 years) On appeal: "His Honour was making the entirely commonplace observation, in this area of discourse, that the amount of money involved is a highly relevant consideration in the assessment of the objective seriousness of the offending. Moreover, as he pointed out, it was indicative of the degree of abuse of office involved in the offending. Given what appears to be the high level of profitability of government contracts in this field, it is essential that the public have complete confidence in the integrity of the processes for the allocation of government contracts on a fair and competitive basis." [63] No prior criminal record of any significance Appeal dismissed prior good character Jansen v R [2013] NSWCCA 301 (plea: guilty) Subjective factors: Offence: one count of misconduct in public office The offender was a police officer who accessed police intelligence and other sensitive information and disseminated it in or about early 2011 "The sentencing judge did not give the mental health problems significant weight. He regarded the offences as "extremely serious". In fact he regarded the objective seriousness as being in the upper range." [60] 27 years old 4 years and 6 months (25 percent discount) (non-parole period of 2 years) Depressive and PTSD symptoms made him unsuitable to policing Appeal dismissed Prospects of rehabilitation and not re-offending "are very good" Jaturawong v R [2011] NSWCCA 168 (plea: guilty) Subjective factors: Unlikely to re-offend Offence: seven counts of accessory before the fact to the offence of misconduct in public office The principle offender (McPherson) was the manager of a Motor Registry who received regular payments to improperly allow applicants to obtain learner permits or drivers licences. Good prospects of rehabilitation 2 years and 10 months (non-parole period of 1 year 8 months) maximum penalty of analogue provisions: Pt 4A of the Crimes Act 1900, 7 years The offender (Jaturawong) was an accessory before the fact because (from 2004 to 2006) he received a specific amount of money from each assisted person "The sentencing judge described the offences committed by both Mr McPherson and the applicant as: '... very serious indeed. They involved corruption of a public officer, which strikes at the heart of the administration of good Government ...'" [20] Remorse Appeal allowed: resentenced to 2 years 4 months (non-parole period 1 year 4 months) Other factors: Delay in these charges The applicant had assisted ICAC with its enquiries into the matter R v Farrell (unreported) District Court of NSW, 13th February 2013 Subjective factors: Offence: misconduct in public office The offender was a long serving police officer who agreed to provide police intelligence orally to a businessman who was a close personal friend Plea: Guilty (late) Prior good character (discounted) 2 years (small discount for late plea of guilty) (non-parole period of 1 year) 40 years old Previously unblemished record R v Nuttall; ex parte Attorney-General (Qld) [2011] QCA 120; 209 A Crim R 538 (plea: not guilty) Subjective factors: 57 years of ages Offence: five counts of official corruption contrary to s 87 Criminal Code Act 1899 (QLD), maximum penalty 14 years if committed by Minister of the Crown; "In the circumstances of this case, the gravity of the offending conduct, its duration and frequency and the intervening Talbot and Shand offending make the respondent's previous good character a matter of little weight. Abuse of a position of authority or trust is normally considered a circumstance of aggravation and it plainly is in this case." [58] No remorse/insight 5 years for each of five counts of official corruption five counts of perjury contrary to s 124 Criminal Code Act 1899 (QLD), maximum penalty 14 years The offender was a member of the Queensland Legislative Assembly. He received secret commissions to plan and promote projects of his associates. About $130,000 was paid to the offender by a series of payments between October 2005 and April 2006 "The offending conduct calls for severe punishment to mark its public denunciation in no ambiguous way and to serve as a deterrent to others who may be tempted to abuse high office. In my respectful opinion, the subject sentences do not satisfy these requirements." [73] Previous good character Crown appeal allowed, 7 years for each of the offences of official corruption, to be served concurrently Lack of prior convictions Loss of employment and lack of job prospects Loss of reputation and public opprobrium (question as to whether can be taken into account) R v Purcell [2010] NSWDC 98 (plea: guilty) Subjective factors: Remorse Offence: misleading Police Integrity Commission; common law offence of misconduct in a public office The offender was a police superintendent who persistently and deliberately disobeyed a direction from a superior officer concerning what the offender could say to members of the press about certain sexual assaults committed in the local area under his command in 2006 Career as police officer over maximum penalty of analogue provisions: regarding misconduct in a public office, offence under s 201 of the Police Act 1990 (NSW) (neglect of duty) which carries a maximum penalty of a fine The offender later mislead the Police Integrity Commission in 2007 "In assessing the gravity of this offence it is perhaps instructive to consider that the statutory offence most closely covering the offender's conduct is an offence under s 201 of the Police Act which carries a maximum penalty of a fine. The Crown accepts therefore that the offender should not receive a sentence of imprisonment for this offence. Nor should I impose a community service order ..." [5] Prior good character Fined $2,000 for misconduct in a public office, community service for misleading the Police Integrity Commission Mental state Other factors: Delay R v Phillip Hans Field (HC Auckland CRI-2007-092-18132, 6 October 2009) (plea: not guilty) Subjective factors: Offence: 11 counts of corruption and bribery as a Member of Parliament "Your wrong was to accept a reward for doing your job. That was wrong but it is not as serious, in my view, as accepting a bribe as an inducement for wrongful ends." [58] Good character and public service (cannot give undiminished weight to this) 15 counts of attempting to pervert the course of justice The offender was a member of the New Zealand Parliament. Between 2003 and 2006 he proffered immigration advice and assistance to various Thai immigrants - in return he accepted benefits from them in the form of work done on properties he owned (in the nature of tiling, plastering, painting and other building and redecorating work) and sold for profit "While, … it was not of the most serious kind, it involved repeated and blatant violations of your duty as a parliamentarian. In my view, a starting point for sentence on the charges of bribery and corruption of five years imprisonment is appropriate." [64] Remorse 4 years on each of 11 counts of bribery and corruption (this summary relates only to the corruption and bribery charges) Aggravating: prepared to exploit the gratitude of the Thai nationals he helped Other factors: Maximum penalty: 7 years Did not initiate the offending Offending had its genesis in an initial act of kindness HKSAR v Wong Kwong Shun Paul [2009] 4 HKLRD 840 (plea: not guilty) Offence: one count of misconduct in public office The offender was a landscape architect of the Housing Department. Between January 2000 and September 2001, in four Housing Department projects the offender recommended using EPOX products supplied by a company he had a personal relationship with, without disclosing this fact "The applicant's misconduct was extremely serious whether or not it would cause the Housing Department to use unsuitable products and suffer serious consequences as a result." [47] Community service for 100 hours Appeal against conviction dismissed DPP v Marks [2005] VSCA 277 (plea: guilty) Subjective factors: 30 years impact of a conviction on future job prospects Offence: one count of misconduct in public office, and drug charges (ecstasy) "I am unable to accept that the respondent's crime should be sloughed off as a mere error of judgment, falling short of moral turpitude. In my judgment it was a serious offence." [33] Deep remorse and shame Fine $4,000 Maximum penalty: 10 years The offender was a senior constable of police who in 2003 accessed by computer the Victoria Police Law Enforcement Assistance Program and found an entry relating to a suspect on drug charges and shared it with another suspect "Were it not for the way in which the matter was conducted before the sentencing judge and on this appeal, I have no doubt that the respondent should have been convicted of the offence of misconduct in public office, and that the seriousness of the offence would have warranted a term of imprisonment. It is another matter whether part of the term should have been suspended. [37] Lack of prior convictions Crown appeal against sentence dismissed (primarily because findings of sentencing judge not challenged and other concessions by Crown at first instance and on appeal) Lost his career as a police officer after eight years Other factors: Early plea Cooperation with investigators R v Rouse (Court of Criminal Appeal (Tas), 19 October 1990, unreported) (plea: guilty, entered late) Subjective factors: Offence: one count of offering a bribe to a member of Parliament; one count of improper use of position as an officer of a company The offender offered a member of Parliament $110,000 to cross the floor to support the Liberal Government in 1989 "There was no lack of recognition by his Honour of the seriousness of the respondent's conduct in offering the bribe, while in respect of the improper use of the respondent's position as an officer of a company, his Honour observed, 'it is difficult to imagine a more improper use of corporate monies than to employ them in the course of trying to bribe a Member of Parliament, but I accept your statement that you intended to return the money and use your personal funds.'" (pg 7) 64 years of age 3 years for offering a bribe to a member of Parliament; $4,000 fine for improper use of position as an officer of a company Maximum penalty/maximum penalty of analogue provisions: s 72 Criminal Code 1924 (TAS), "anything from fining a man to imposing a sentence of 21 years' imprisonment" aggravating factor: Involved a third person No previous convictions Crown appeal against sentence dismissed Previously highly respected member of the community Jackson & Hakim v R (1988) 33 A Crim R 413 (plea: not guilty) Offence: conspiracy with others to bribe in official duty Jackson: 7 years and 6 months (non-parole period of 3 years 9 months) maximum penalty of analogue provisions: offences in Part III Crimes Act 1914 (Cth), 10 years = The offenders were the Minister for Corrective Services (Jackson) and Hakim who conspired to receive bribes to effect the early release of prisoners on parole between 1982 and 1983 (Regarding Jackson) "The commission of a consistent abuse of high public office involving the receipt of bribes for public favours necessarily calls for a severe sentence to demonstrate public denunciation of such conduct. The sentence imposed fell significantly short of that which was required." (413) Subjective factors (regarding Jackson): Crown appeal against sentence allowed, 10 years (non-parole period of 5 years) offences in Part IVA of the Crimes Act NSW, 7 years many years of valuable public service (tarnished) Hakim: 6 years and 6 months (non-parole period of 3 years) Crown appeal against sentence dismissed R v Bruneau (1963) CarswellOnt 22; [1964] 1CCC 97; [1964] 1 OR 263, 42 CR 93 (plea: not guilty) Subjective factors: Offence: acceptance of bribe by member of Parliament for the use of his influence "in an official capacity" The offender was a member of the Canadian Parliament who in 1956 received a corrupt payment to use his influence to have the Federal Government purchase the property owned by the payer of the bribe "The responsibility of a member of Parliament to his constituency and to the nation requires a rigorous standard of honesty and behaviour, departure from which should not be tolerated." (103 to 104) No criminal record Suspended sentence and 2 years probation maximum penalty: 14 years Comparatively young man with a family Crown appeal against sentence allowed, 5 years Likelihood of being admitted to the Bar was in serious question if the conviction was upheld

[31]

Endnotes

R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 17) [2021] NSWSC 858.
A Schedule of the Exhibited Material is annexed as Annexure 1 to this judgment.
Sentence imposed on Edward Obeid on 15 December 2016: imprisonment for 5 years with a non-parole period of 3 years. Sentence imposed on Mr Macdonald on 2 June 2017: aggregate sentence of 10 years with a non-parole period of 7 years, conviction quashed on appeal on 25 February 2019.
R v Isaacs (1997) 41 NSWLR 374.
Verdict judgment at [1822], [1979] and [2018].
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 applying Olbrich.
The Queen v Olbrich.
R v Obeid (No 12) [2016] NSWSC 1815 at [84]-[85].
As damage done to the public forms part of the assessment of the level of criminality involved in the commission of the offence, it cannot be considered as a further aggravating factor under s 21A(2)(g) of the Sentencing Act.
Verdict judgment at [1822], [1979], [2018].
Verdict judgment at [2034].
Muldrock v The Queen [2011] HCA 39; 244 CLR 120.
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.
Dickson v R [2016] NSWCCA 105 at [104]-[105].
Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29 at 7-8; R v DW (2012) 221 A Crim R 63; [2012] NSWCCA 66 at [115].
Masters v R (1992) 26 NSWLR 450 at 458.
Dickson v R [2016] NSWCCA 105 at [104]-[105].
An analysis which was set out at length in my verdict judgment.
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
Savvas v The Queen; The Queen v De Simoni.
The Queen v Hoar (1981) 148 CLR 32; [1981] HCA 67 at 38.
R v Kane [1975] VR 658 in Savvas v R (No 2) (1991) 58 A Crim R 174 at 176. See also Raptis v R (1988) 36 A Crim R 362; Marie v R (1983) 13 A Crim R 440; Shepherd (No 2) v R (1988) 37 A Crim R 466 at 478.
Savvas v The Queen at 7-9.
Savvas v R (No 2) at 177.

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