R v Obeid

Supreme Court of NSW|2016-12-01|Before: Beech-Jones J

The Representations

Mr Patrick Low was appointed to a senior policy position within the Maritime Authority in November 2006. [50] He assumed responsibility for the finalisation of the CLP. In his evidence, Mr Low said that he did not draw any distinction between retail leases at Circular Quay and other retail leases of Maritime Authority property. [51] On 7 August 2007, Mr Low circulated Version 9 of the draft CLP. [52] It contemplated retail leases of Maritime Authority property being offered on a competitive basis, including on their expiry. [53]
On 15 August 2007, Mr Stephen Dunn took up an appointment as Deputy Chief Executive of the Maritime Authority. [54] On 21 August 2007, he was appointed to the additional position of General Manager of the Maritime Property Division. [55] Mr Dunn was the Director General of Fisheries from late 1999 to 2004, which included the period when Mr Obeid was the Minister for Fisheries. [56] Mr Dunn said that he and Mr Obeid came to know each other well during this period but they did not socialise although Mr Dunn regarded Mr Obeid as a mentor. [57] After he ceased work at the Department of Fisheries, Mr Dunn worked overseas for two years. When he returned he and Mr Obeid met infrequently for coffee. [58] Mr Dunn said that, in the period immediately before he was appointed, Mr Obeid contacted him and that Mr Obeid either was or became aware that Mr Dunn was about to commence in a senior position with the Maritime Authority. [59]
During the morning of 17 August 2007, Mr Obeid telephoned Mr Dunn. Mr Dunn returned his call. Mr Dunn said that to his recollection Mr Obeid said that "he was unhappy about the way the group of tenants at Circular Quay had been treated by the Maritime Authority" and asked Mr Dunn to "meet with a barrister that represented them, Mr Paul Scanlan". Mr Dunn also recalled that Mr Obeid "made some very disparaging remarks" about the Maritime Authority and the way they treated the tenants. [60] He recalled that Mr Obeid said that the leaseholders at Circular Quay "were bullied by Maritime Authority staff and that they were not treated fairly in their dealing with Maritime Authority staff". [61] Mr Dunn recalled that Mr Obeid was "agitated" and used "quite strong language" to convey his feelings about the "behaviour of the Maritime Property staff about the way they treated stakeholders". [62] In cross examination, Mr Dunn agreed that Mr Obeid did not advocate any outcome other than him meeting with Mr Scanlan and did not expand upon the tenants' grievances. [63]
At no time during that or any other conversation did Mr Obeid indicate to Mr Dunn that he or his family had any direct or indirect financial interest in the Circular Quay leases. [64] Instead, Mr Dunn said that he knew Mr Obeid was a Member of the Legislative Council and believed "very much that [Mr Obeid] was calling on behalf of constituents". [65]
The telephone records indicate that there were five further telephone conversations between Mr Dunn and Mr Obeid after the call on 17 August 2007, being calls on 21 August 2007, 27 August 2007, the evening of 28 August 2007, 3 September 2007 [66] and 11 September 2007. [67] Mr Dunn had no specific recollection of those conversations but he accepted that with the conversation on 21 August 2007 there was nothing to discuss other than the Circular Quay leases [68] and that with the telephone call on 28 August 2007 it was likely they had discussed Mr Dunn's meeting with Mr Scanlan earlier that day. [69] He recalled that in the telephone calls on 5 and 11 September 2007, Mr Obeid was seeking "updates". [70]
As noted, on or about 28 August 2007, Mr Dunn met Mr Scanlan. [71] Mr Low said he also attended [72] but neither Mr Dunn nor Mr Scanlan could recall him being present at the meeting. [73] Around this time, Mr Dunn and Mr Low met to discuss Version 9 of the draft CLP. Mr Low recalled Mr Dunn directing that it be changed from requiring open tenders of leases to instead having a "benchmark of lease renewals on commercial terms". [74] Mr Dunn did not accept that he directed such changes but instead said he was "encouraging Mr Low [that] this was a suitable policy response". [75] Both recalled that Mr Low obtained the approval of the Minister and Mr Oxenbould for the changes. [76]
On or about 4 September 2007, Version 10 of the draft CLP was produced. [77] This version now provided that retail leases would be "offered via direct negotiations" with existing tenants in the first instance. [78] On the same date Mr Dunn wrote to Mr Scanlan advising that the Maritime Authority was reviewing its lease policy and that no further increases in rent would be sought during the holdover period. [79]
Two further versions of the draft CLP were produced but the approach to renewals of existing retail leases did not change from Version 10. [80] The final CLP was approved by cabinet on 26 November 2007. [81] Negotiations over a new lease commenced with Mr Scanlan on 29 November 2007. [82] A new lease for CQR's businesses was signed in 2008. However, the businesses ultimately failed sometime around 2012 [83] and the leases were terminated.

The Jury's Verdict

To properly characterise Mr Obeid's offending, it is necessary to explain the elements of the offence of wilful misconduct in public office and the directions given to the jury in order to determine what the jury necessarily found in returning a guilty verdict. In addition, it is the sentencing judge's function to make such further findings of fact as may be necessary for sentencing provided that they are consistent with the jury's verdict. If any such findings are adverse to the offender, they must be proven beyond reasonable doubt but otherwise they are to be made on the balance of probabilities (see R v Olbrich [1999] HCA 54; 199 CLR 270 ("Olbrich") at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ).
In Obeid v R [2015] NSWCCA 309 at [133] to [142], Bathurst CJ, Beazley P and Leeming JA accepted the formulation of the five elements of the offence of wilful misconduct in public office enunciated in R v Quach [2010] VSCA 106; 201 A Crim R 522 ("Quach") at [46]. In Mr Obeid's case it was accepted that one of those elements, namely, that the relevant misconduct was undertaken "without reasonable excuse or justification", did not arise as no evidence or submissions put forward were capable of raising any such excuse or justification that was not necessarily excluded by a finding that he wilfully misconducted himself. [84] Accordingly, the jury was instructed that it had to be satisfied beyond reasonable doubt of the remaining four elements stated in Quach adapted to the case against Mr Obeid, [85] being first that he was a public officer, second that in making representations to Mr Dunn Mr Obeid acted "in the course of or connected to his public office", third that in so acting he wilfully misconducted himself and fourth that his conduct in making representations was misconduct that was serious and merited criminal punishment. I will deal with each element in turn.
In relation to the first element, the jury was instructed that as a matter of law a Member of the Legislative Council is a public officer: Obeid v R [2015] NSWCCA 309 at [119] to [123]. [86]
In relation to the second element, the jury was instructed that the functions and responsibilities of a Member of the Legislative Council include "scrutinising the actions of the executive government" and "communicat[ing] with the executive government about matters affecting the State by, for example, making representations, suggestions or even protesting to a Minister or departments about their policies and practices" [87] (see Horne v Barber [1920] HCA 33; 27 CLR 494 at 500 to 501 per Isaacs J; R v Boston [1923] HCA 59; 33 CLR 386; "Boston" at 402 to 403 per Isaacs and Rich JJ; R v Obeid (No 2) [2015] NSWSC 1380 at [105]). In this case, the nature and circumstances of the conversation between Mr Dunn and Mr Obeid and the absence of any disclosure by Mr Obeid that he or his family had any interest in the leases clearly suggested that, objectively considered, Mr Obeid's conduct was undertaken in the course of or connected to his public office. The jury so concluded.
In relation to the third element, namely, that Mr Obeid wilfully misconducted himself, the jury was instructed that it had to be satisfied of three matters beyond reasonable doubt, namely, that: Mr Obeid engaged in the conduct identified in the indictment, that such conduct was misconduct that is a breach of the duties and obligations attached to his office as a Member of the Legislative Council and that the misconduct was "wilful". [88]
The relevant conduct alleged against Mr Obeid in the indictment was that while he held office as a Member of the Legislative Council he made representations to Mr Dunn, "with the intention of securing an outcome from the … Maritime Authority favourable to [CQR] in respect of its tenancies of properties at Circular Quay, knowing at the time he made the representations that he had a commercial and/or beneficial and/or family and/or personal interest in the said tenancies which he did not disclose to Stephen Paul Dunn." [89]
The jury was instructed that this aspect of the indictment raised four matters of fact, each of which it had to be satisfied of beyond reasonable doubt, namely, that Mr Obeid had an interest in the tenancies, that he knew that such an interest existed, that he did not disclose any such interest to Mr Dunn and that he made representations to Mr Dunn with the "intention of securing an outcome" favourable to CQR. [90]
In relation to Mr Obeid and his family's interest in the tenancies I have already referred to the agreed fact that Mr Obeid and his family had an interest via the trust arrangement ([12]). I have also referred to the evidence concerning the mortgage of his residence that was owned by his wife which was used to finance part of the acquisition of the businesses ([12]), the evidence of weekly cash payments made to Mr Obeid's wife ([15]) and the evidence of the further cash payments that the Crown contended were made to Mr Obeid directly ([16] to [18]). It follows from the jury's verdict that it was satisfied beyond reasonable doubt that Mr Obeid had an "interest" of the kind referred to in the indictment. The indirect interest via a trust was agreed and the evidence of the mortgage and cash payments to Judith Obeid was undisputed. I consider it follows that the jury was satisfied beyond reasonable doubt of those three matters. To the extent that there may be some uncertainty in this respect I record that I am satisfied beyond reasonable doubt of those matters.
However, it does not necessarily follow from its verdict that the jury was satisfied beyond reasonable doubt that Mr Obeid personally received the cash payments described as payments to "EO" or "Dad" or the like in Mr Maroon's spreadsheets. Given that Mr Maroon never stated that he provided them to Mr Obeid Senior personally, and his concession that the reference to "Mum or Dad" in his spreadsheet could have been a reference to payments to the household expenses of the Obeid family, I am not satisfied of that matter beyond reasonable doubt. However, it was not disputed that the payments described as being for "EO" or "Dad" or the like in Mr Maroon's spreadsheets represented actual cash amounts that were delivered to Mr Obeid's household and, if not given to him, then they were at least given to his wife Judith. Damien Obeid agreed that the amount of cash payments increased from around 2006. Accordingly, I consider it follows that the jury was satisfied of at least that fact. To the extent that there may be some uncertainty in this respect I am also satisfied beyond reasonable doubt of that fact.
As for Mr Obeid's knowledge of his and his family's interest, it follows from the verdict that the jury was satisfied of that as well. In particular, it is overwhelmingly likely that Mr Obeid was aware of the substantial financial outlay his family made to purchase the businesses, especially when he received part of the proceeds of the same mortgage that was used to finance the purchase (see [12]). It is also overwhelmingly likely that Mr Obeid was aware of which business was being used to provide cash to his household. Further, while Damien Obeid gave evidence that he did not discuss the family's businesses with his father, I am satisfied the jury rejected that aspect of his evidence and was satisfied of the contrary beyond reasonable doubt. To the extent there may be any uncertainty in this respect, I am also satisfied beyond reasonable doubt of that matter. The exquisite timing of Mr Obeid's telephone contact with Mr Dunn demonstrates that he was very familiar with the position of his family businesses and the threat they faced.
In relation to the absence of disclosure by Mr Obeid to Mr Dunn of his interest in the tenancies, Mr Dunn's uncontested evidence was that Mr Obeid made no such disclosure in any way (see [29]). [91] It follows from its verdict that the jury was satisfied of that matter.
In relation to that part of the indictment that alleged that Mr Obeid made representations to Mr Dunn with the "intention of securing an outcome" favourable to CQR I have already described Mr Dunn's uncontested evidence of his discussions with Mr Obeid. The jury clearly accepted that evidence. At the trial, there was no real contest that Mr Obeid made "representations" to Mr Dunn. However, there was a contest about the content and effect of those representations and then in turn, Mr Obeid's motives, intentions and state of mind in making them.
At the trial it was contended on behalf of Mr Obeid that the request he made of Mr Dunn was relatively innocuous in that he did not urge any outcome on Mr Dunn and did not expand upon the tenants' grievances. In contrast, in his final address, the Crown Prosecutor effectively submitted that Mr Obeid's intervention was a careful and nuanced act designed to prime Mr Dunn to be receptive to Mr Scanlan's arguments. The Crown submitted that Mr Obeid chose Mr Dunn because he was someone with whom he had an existing relationship and he knew was influential. The Crown submitted that Mr Obeid did more than simply ring Mr Dunn and ask him to meet Mr Scanlan. The Crown submitted that Mr Obeid conveyed to Mr Dunn in clear terms his strong disapproval with the way the Maritime Authority was treating the tenants at Circular Quay. The Crown submitted that by not mentioning his interest in the tenancies Mr Obeid duped Mr Dunn into believing that he was asking him to meet with Mr Scanlan on behalf of arm's length constituents who had a genuine grievance with the Maritime Authority. I consider that it follows from the jury's verdict that the jury accepted what the Crown submitted was Mr Obeid's motives and intentions in contacting Mr Dunn. To the extent that there may be some uncertainty in this respect I am satisfied of those matters beyond reasonable doubt.
At this point, it is important to note a specific direction given to the jury about this part of the indictment; ie that part that refers to Mr Obeid having an "intention of securing an outcome" favourable to CQR. At the trial, Mr Tripodi, gave evidence that he had served on a parliamentary committee with Mr Obeid from 1996 to 1998. [92] Mr Tripodi said that he recalled that Mr Obeid had instanced the Circular Quay lessees as examples of government tenants who had been mistreated and referred to other government departments "where they did have a right of renewal and he felt that was good policy". [93] There was also an agreed fact that Mr Obeid and Mr Tripodi had discussions on that topic after Mr Tripodi became Minister for Ports and Waterways. [94]
Thus, on behalf of Mr Obeid it was submitted to the jury that he had a long held view about unfair government treatment of tenants, including those at Circular Quay. It was also submitted that that matter, and the supposedly innocuous nature of his intervention, negated any suggestion that Mr Obeid intervened to promote his or his family's financial interests and instead suggested he intervened because he believed the Maritime Authority was mistreating the Circular Quay tenants. [95] A submission to similar effect was made on behalf of Mr Obeid at the sentencing hearing. [96]
This aspect of Mr Obeid's case raised a possibility that the jury might conclude that, or be left with a doubt about whether, Mr Obeid made representations to Mr Dunn having both an intention to secure a favourable outcome for CQR and a belief that it was part of his duty to his constituents to point out unfair treatment by the Maritime Authority. Over the objection of the Crown, [97] I directed the jury that it had to be satisfied beyond reasonable doubt that the conduct of Mr Obeid "in making the representations to Mr Dunn was undertaken with the intention of benefitting [CQR], that is for the purpose of promoting Mr Obeid's pecuniary interests or those of his family or those close to him and that it was not undertaken because he in any way genuinely believed it was in the public interest or the interests of the electorate or even part of the electorate". [98] I directed the jury that if it were not so satisfied then Mr Obeid had to be acquitted. [99]
It follows from its verdict that the jury rejected the reasonable possibility that Mr Obeid was even partly motivated to speak to Mr Dunn by a genuine belief that doing so was in the public interest, the interests of the electorate or even the interests of part of the electorate. Instead, the jury was satisfied beyond reasonable doubt that Mr Obeid was solely motivated to benefit CQR and through it himself or his family. That aspect of the jury's finding is especially significant to an assessment of Mr Obeid's criminality.
The next matter the jury was required to consider in relation to the third element was whether the Crown had proven beyond reasonable doubt that the conduct that Mr Obeid engaged in was misconduct, that is, a breach of the duties and obligations of his office as a Member of the Legislative Council. [100] In that respect, the jury was instructed that parliamentarians are required to "act with fidelity and single mindedness for the welfare of the community" (Boston at 400 per Isaacs and Rich JJ) [101] and, in particular, that parliamentarians "must act only according to what they believe to be in the public interest and the interests of the electorate and must not use their position for the purpose of promoting their own pecuniary interests or those of their family or entities close to them". [102] Clearly, the jury was satisfied beyond reasonable doubt of that matter. It follows inexorably from the finding that Mr Obeid's intervention was solely motivated to benefit CQR and through it himself or at least his family.
The final aspect of the third element that the jury was satisfied of beyond reasonable doubt was that Mr Obeid's misconduct was "wilful". In this respect, the jury was instructed that, for the misconduct to be wilful, Mr Obeid must either have known that he was obliged not to use his position in that way, or he knew that it was possible that he was obliged not to use his position in that way but chose to do so anyway (R v Obeid (No 11) [2016] NSWSC 974). [103] The jury's verdict does not resolve whether the misconduct was intentional or reckless. I record that I am satisfied beyond reasonable doubt that it was intentional. As at 2007, Mr Obeid had been a Member of Parliament for 16 years and had previously been a Minister for three years. In those circumstances, I consider it inconceivable that he would not have known that he could not use his position as a parliamentarian to further his or his family's financial interests.
The fourth element of the offence was that Mr Obeid's misconduct was serious and merited 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. [104] In relation to this issue the jury was instructed that this crime is not established by an error or a mistake but instead the misconduct "must be worthy of condemnation and punishment." [105] This element of the crime posed what is often described as a "classic jury question", namely, a question the answer to which requires a normative assessment undertaken by reference to community standards. The fact that a jury determined that Mr Obeid's conduct was worthy of condemnation and punishment does not foreclose the adoption of any particular sentencing option. However, as I will explain, it is a significant matter to consider in sentencing Mr Obeid (see [69]).
Before concluding this analysis of the jury's verdict, it is necessary to note four matters that arise out of the written submissions filed on behalf of Mr Obeid.
First, it was not part of the Crown case that Mr Dunn acted improperly and there was no evidence adduced to suggest that he did. Mr Dunn's undisputed evidence was that he would have met with Mr Scanlan irrespective of Mr Obeid's intervention [106] and that the position he took in relation to the CLP was based on his own assessment. [107] In particular, he concluded that the level of stakeholder opposition to a competitive process was very strong [108] and that a change in the culture of the Maritime Property Division and its approach to Circular Quay tenants was necessary. [109]
The written submissions filed on behalf of Mr Obeid contended that his representations to Mr Dunn ultimately had no effect on the decision reached by the Maritime Authority to offer new leases to CQR. [110] The Crown did not contend to the contrary and I accept that. However, that matter cannot be taken too far. There is no evidence from which it can be concluded that Mr Obeid was aware of Mr Dunn's attitude to the Circular Quay leases prior to making his telephone call. On the evidence adduced at the trial it was only sheer chance that, in speaking to Mr Dunn, Mr Obeid was pushing on an open door.
Second, the written submissions filed on behalf of Mr Obeid contend that he did not receive any financial benefit as a result of his offending conduct because he had only a potential interest in CQR's businesses [111] and because the businesses ultimately went broke and the leases were terminated. [112] The finding that I have just made means that ultimately Mr Obeid's representations to Mr Dunn did not confer any financial advantage on him or any member of his family. However, as I have explained, the effect of the jury's verdict is that it found that he was solely motivated to lobby Mr Dunn to benefit either himself or his family. Given the closeness of the various family interests it makes no difference to any assessment of Mr Obeid's criminality whether he sought to profit personally, benefit his wife, protect his sons' investment or pursue all three.
Third, the written submissions filed on behalf of Mr Obeid incorrectly contend that the essence of Mr Obeid's criminality was his failure to disclose his interest in the leases to Mr Dunn. [113] Mr Obeid's offence was not some omission to tell Mr Dunn of his or his family's interest in CQR. The proper performance of his duty as a parliamentarian required that he not communicate with Mr Dunn for the purpose of advancing his or his family's pecuniary interests. Nothing in this judgment should be taken as accepting that it was permissible for a parliamentarian such as Mr Obeid to lobby Mr Dunn to advance his or his family's financial interests provided he disclose his or their interest. Whether parliamentarians can act in that manner without misconducting themselves was not an issue requiring resolution in this proceeding. In addition, I note that in this case Mr Dunn stated that, if Mr Obeid had disclosed his or his family's interests in the Circular Quay leases, it would have affected the process of decision making [114] in that there would have been "a very high level of transparency" in respect of the decision making process and "[m]ore records or full records would have needed to be maintained about that potential conflict of interest." [115]
Fourth, Mr Obeid did not give evidence at his trial or at the sentence hearing. Instead, a report from a psychologist, Dr Christopher Lennings, was tendered which included his explanation for the offence. [116] This means of adducing such evidence is problematic in that the offender's version cannot be tested (R v Qutami [2001] NSWCCA 353 at [58] to [59] per Smart AJ with whom Spigelman CJ agreed). Dr Lennings' report recounts Mr Obeid stating that for a long period he had an interest in what he regarded as the mistreatment of traders at Circular Quay which prompted him to contact Mr Dunn and that his sons' interest in the businesses at the Quay was only "coincidental". [117] It follows from what I have stated that I must reject this explanation as it is completely inconsistent with the jury's verdict.

Approach to Sentencing

In R v Obeid (No 2) [2015] NSWSC 1380 at [1] I observed that, even though the Parliament of New South Wales has enacted detailed statutory regimes for the detection, investigation and prevention of corrupt conduct by public officials, [118] for reasons best known to itself, the Parliament has not enacted legislation specifying whether and, if so, what improper or corrupt conduct by its own members constitutes a crime. Instead, Parliament left that topic to the vagaries and uncertainties of the common law.
Since that statement, some of the uncertainties surrounding the application of the common law offence of wilful misconduct in public office to a parliamentarian have been resolved by the Court of Criminal Appeal's judgment in Obeid v R [2015] NSWCCA 309. Further, in relation to sentencing, the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act") apply to common law offences as well as statutory offences. Five aspects of that legislation are of particular relevance to the sentencing of Mr Obied, namely:

the identification of the purposes of sentencing (s 3A);
the prohibition on a Court sentencing an offender to imprisonment unless, having considered the alternatives, it is satisfied that no other form of punishment is appropriate (s 5(1));
the power, in some circumstances, to impose home detention or an intensive correction order on a person sentenced to a term of imprisonment (ss 6 and 7);
the specification of aggravating, mitigating and other factors in sentencing (s 21A); and
the power of the Court to alter the minimum ratio between a non-parole period and the balance of a sentence if "special circumstances" are found (s 44(2)).

Nevertheless, the 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]).
In Jaturawong at [6], Beazley JA (as her Honour then was and with whom Hall and Harrison JJ agreed) identified the relevant statutory analogue to the charge of misconduct in public office in that case as the offences of corruptly receiving commissions and other corrupt practices provided for in Pt 4A of the Crimes Act 1900 (NSW). The maximum penalty for those offences was seven years imprisonment. In Jaturawong the principal offender was the manager of a Motor Registry who received regular payments to improperly allow applicants to obtain learner permits or drivers licences (at [14] to [18]). In Blackstock, the Court of Criminal Appeal also relied on the maximum of seven years imprisonment for the offences in Part 4A of the Crimes Act as a reference point (at [9]). The offender in Blackstock was a project officer employed by RailCorp who included a business in which he secretly held an interest on a list of possible contractors for consideration by his superiors (at [26]) and then "played a part in the allocation of work" to the business (at [28]).
Neither of Jaturawong nor Blackstock hold that in all cases of misconduct in public office the relevant statutory analogue are those offences set out in Pt 4A of the Crimes Act. Instead, it was only found to be the appropriate analogue in those cases. As the decisions in R v Pieper [2014] NSWDC 242 and R v Purcell [2010] NSWDC 98 discussed below illustrate, the breadth of circumstances that could constitute the offence of misconduct in public office mean that other statutory analogues may be appropriate in a given case.
In this case I am satisfied that the offences found in Pt 4A of the Crimes Act are the relevant analogue. Section 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. This provision is directed at an agent who receives or solicits a corrupt reward to breach their duty to their principal. Mr Obeid's offending is broadly analogous to this because his conduct involved him breaching his duty to the public by using his position to further his or his family's financial interests. There is no difference in substance between a parliamentarian receiving a bribe to advance the private interests of a third party and a parliamentarian using their position to advance their own pecuniary interests.
Nevertheless, accepting that the offences found in Pt 4A, especially s 249B, are the relevant analogue, a comparison of the elements of the crime of wilful misconduct in public office with the offence of corruptly receiving a commission or reward in s 249B(1) reveals two differences of significance.
The first is that the class of persons caught by the offence of wilful misconduct in public office generally occupy a more senior position than those caught by s 249B(1). With the latter, the persons subject to the offence are those who satisfy the definition of "agent" in s 249A, which includes "any person employed by, or acting for or on behalf of, any other person" (sub-s (a)). With wilful misconduct in public office the concept of "public office" is broad but it does not extend to all persons employed by or acting on behalf of the State (Ex parte Kearney [1917] NSW St Rp 68; 17 SR (NSW) 578).
The second is that, as already noted, it is an element of wilful misconduct in public office that the relevant misconduct was serious and merited criminal punishment. There is no equivalent element for any of the offences found in Pt 4A of the Crimes Act.
Each of these differences bear out the justification for the Court not being limited by the maximum penalty for the relevant statutory analogue, in this case seven years imprisonment.
Another matter of significance to the sentencing exercise is the consideration of sentences in other cases both in terms of comparing sentencing outcomes and discerning what are the "unifying principles which those sentences both reveal and reflect" (see Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 253 CLR 58 at [41]). The difficulty is that there is not a significant cohort of sentences for the offence of wiful misconduct in public office and none concern a parliamentarian. Thus, in Jansen v Regina [2013] NSWCCA 301 ("Jansen") at [64] to [65] Campbell J noted the breadth of circumstances that could give rise to the offence of wilful misconduct in public office and that the available cohort of such cases was so small that they "are not capable of providing useful material that may establish a [sentencing pattern]". This is borne out by the sentencing statistics compiled by the Judicial Commission of New South Wales which only disclose ten sentences imposed for the offence since 2009, seven of which involved full time custody and the balance of which involved the imposition of an Intensive Corrections Order.
Nevertheless, the parties placed before the Court the results of their research concerning sentences for wilful misconduct in public office and for other offences committed by or concerning parliamentarians. Out of deference to the parties' efforts I will briefly describe some of the cases referred to.
I have already outlined some of the facts of Jaturawong and Blackstock. In Jaturawong the principal offender had pleaded guilty to wilful misconduct in public office and a number of charges under s 249B of the Crimes Act which yielded a 20 per cent discount (at [9]). He was sentenced to two years six months imprisonment with a non‑parole period of 12 months for the misconduct charge (at [11]). The principal offender did not appeal. Instead, the appeal in Jaturawong concerned the sentence imposed on an accessory before the fact, which was upheld on parity grounds. In Blackstock the applicant received a discount of 25 per cent on account of their plea of guilty (at [47]). He was sentenced to four years imprisonment with a non‑parole period of three years (at [3]). His appeal was dismissed. Campbell J observed that the sentence was "within the range available" to the sentencing judge (at [68]).
In Jansen a police officer who pleaded guilty to accessing police intelligence and other sensitive information and disseminating it was sentenced to a non‑parole period of two years and additional terms of two and half years (at [4]). A number of other charges were included on a Form 1 under s 33 of the Sentencing Act and he was sentenced for various summary offences pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (at [3]).
In Hughes v R [2014] NSWCCA 15, the unsuccessful applicant for leave to appeal against sentence was a police officer who accessed a police database and created false intelligence reports. She pleaded guilty to two counts of wilful misconduct in public office, and two offences of giving false evidence to the Police Integrity Commission. For the first of the misconduct offences she received a fixed term of seven months imprisonment and for the second she received a total sentence of 18 months imprisonment with a non‑parole period of nine months (at [5]).
In R v Pieper [2014] NSWDC 242, the offender pleaded guilty to six counts of misconduct in public office and received a number of individual sentences totalling four years and nine months with an effective non-parole period of three years. The offender was the general manager of a County Council (at [9]) who orchestrated various frauds that resulted in his misappropriating over $350,000 (at [35]). Letherbarrow DCJ identified the relevant statutory analogue as larceny by a servant, the maximum penalty for which was ten years imprisonment (at [4]).
In R v Purcell [2010] NSWDC 98, 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 (at [7]). Berman DCJ identified the relevant statutory analogue as an offence under s 201 of the Police Act 1990 (NSW) which carries a maximum penalty of a fine (at [17]). The offender was fined $2000 (at [38]).
The written submissions filed on behalf of Mr Obeid also referred to various sentencing decisions of interstate courts for wilful misconduct in public office. I have considered those authorities. None of them concern a parliamentarian, nor do they reveal any materially different outcome to the decisions of the courts of this State. The small number of them only confirms the infrequency with which sentences are imposed for this offence.
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.
In its written submissions the Crown identified five cases involving offences either committed by or concerning parliamentarians, including Ministers. In this State the most notorious is Jackson & Hakim v R (1988) 33 A Crim R 413 ("Jackson") in which the then Minister for Corrective Services was convicted of conspiracy for receiving bribes to effect the early release of prisoners on parole. Following a successful Crown appeal Jackson was resentenced to imprisonment for 10 years with a non‑parole period of five years. In R v Rouse (Court of Criminal Appeal (Tas), 19 October 1990, unreported), ("Rouse") a Crown appeal against the sentence of three years imprisonment imposed on a prominent businessman was dismissed. The offender had pleaded guilty to offering a bribe to a member of the Tasmanian Parliament to cross the floor. In R v Nuttall; ex parte Attorney-General (Qld) [2011] QCA 120; 209 A Crim R 538 ("Nuttall") a Crown appeal against the sentence imposed upon a Queensland Cabinet Minister convicted of receiving secret commissions to plan and promote projects of his associates, was upheld. The offender was re‑sentenced to imprisonment for a term of seven years, which ran concurrently with terms of imprisonment imposed for perjury offences.
In R v Phillip Hans Field HC Auckland CRI-2007-092-18132, 6 October 2009 ("Field") a member of the New Zealand Parliament was sentenced to concurrent sentences of four years imprisonment on each of eleven counts of bribery and corruption (at [89]). In his capacity as a parliamentarian, the offender had proffered advice and assistance to various trades people while accepting benefits from them in the form of work done on his properties (at [5]). In R v Bruneau, 1963 CarswellOnt 22; [1964] 1CCC 97; [1964] 1 OR 263, 42 CR 93 ("Bruneau") a member of the Canadian Parliament who receive a corrupt payment to use his influence to have the Federal Government purchase the payer of the bribe's property was resentenced to imprisonment for five years following a successful Crown appeal against the imposition of a suspended sentence.
None of these cases concerning parliamentarians (including Ministers) establish some form of range of sentences relevant to this case. They involve different offences with different maximum penalties and, with one exception, concern different jurisdictions. Nevertheless, despite their differences a number of common propositions emerge.
First, with the exception of Rouse, all these cases emphasise the onerous duty imposed on either parliamentarians or Ministers and the strictness with which departures from that duty will be dealt with (Jackson at 436 per Lee J with whom Finlay J agreed; Nuttall at [49] per Muir JA with whom Fraser and Chesterman JJA agreed; Bruneau at [25] per McLennan JA).
Second, while in some of the cases issues such as whether loss or damage was occasioned by the offending or a profit was made were relevant, in all the cases the Courts emphasised that the real damage caused by the offending conduct was to the institutions of government and public confidence in them (Jackson at 435 per Lee J with whom Finlay J agreed; Nuttall at [52] per Muir JA with whom Fraser and Chesterman JJA agreed; Rouse BC900030 at 8 per Cox J with whom Underwood and Wright JJ agreed; Field at [44] per Hansen J; Bruneau at [25] per McLennan JA).
Third, in each case the necessity for the sentence to reflect considerations of general deterrence and denunciation predominated over other sentencing considerations (Jackson at 436 per Lee J with whom Finlay J agreed; Nuttall at [73] per Muir JA with whom Fraser and Chesterman JJA agreed; Rouse BC900030 at 9 per Cox J with whom Underwood and Wright JJ agreed; Field at [45] per Hansen J; Bruneau at [26] per McLennan JA).
Fourth, in each case the prior good character of the offender was afforded less weight in the sentencing process than it would for other offences (Jackson at 436 per Lee J with whom Finlay JA agree; Nuttall at [58] per Muir JA with whom Fraser and Chesterman JJA agreed; Rouse BC900030 at 9 per Cox J with whom Underwood and Wright JJ agreed; Field at [85] per Hansen J; Bruneau at [25] per McLennan JA).
All of these propositions are apposite to Mr Obeid's case.
At this point it is appropriate to address the competing submissions concerning the relative seriousness of Mr Obeid's offending. I have already described Mr Obeid's conduct and the state of mind that accompanied it. It is to be remembered that his offending conduct comprised a single phone call to Mr Dunn, although it was accompanied by follow up calls. As was submitted on behalf of Mr Obeid, he did not expressly advocate any outcome to Mr Dunn although the effect of his intervention was that the position Mr Scanlan was advocating should be strongly considered. Further, in the end result Mr Obeid's intervention did not cause a change in the CLP. Relying on these and other matters it was submitted on behalf of Mr Obeid that his offending was "at the very bottom of the scale of objective seriousness for an offence of its kind." [119] I disagree. For the reasons I have just explained, what must be at the forefront of any consideration of seriousness is the nature of the duty owed by Mr Obeid as a parliamentarian and the extent of the departure from that duty. The onerous nature of the former has been addressed. The relatively limited nature of Mr Obeid's intervention in the process of renewing CQR's leases bears on the latter but so does the finding of the jury that Mr Obeid intervened solely to benefit CQR, and through it, himself or his family.
It can be accepted that Mr Obeid's conduct was in the middle to lower end of the range of corrupt conduct by a parliamentarian that may amount to the crime of wilful misconduct in public office. However, that is not the proper inquiry. Instead, the relevant assessment is that, in the range of misconduct that might be engaged in by public officials which can constitute the offence of wilful misconduct in public office, Mr Obeid's conduct was 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.

Mr Obeid's Subjective Case

The report of Dr Lennings referred to earlier also recounted aspects of Mr Obeid's personal history. Unlike his account of the offence this was not controversial and was generally consistent with the other material that was tendered. Dr Lennings' report reveals the following. Mr Obeid was born in Lebanon in 1943. He migrated to Australia with his family when he was six years old. His father was a clothes salesman but tragically died when Mr Obeid was nine years old. [120] After experiencing financial hardship, Mr Obeid and other members of his family returned to Lebanon in 1956 where he completed his schooling. [121] He returned to Australia six years later. He married his wife Judith in 1965. He and his wife had ten children over the next decade. One has since passed away. Mr Obeid studied commerce part time while working in a glass factory. He worked in an accounting firm and then with a building company. [122] Mr Obeid achieved financial success from a printing and newspaper business which he sold in 1986, as well from property development. [123] As already noted, in 1991 he was elected to Parliament as a Member of the Legislative Council and he retired in 2011 having been a Minister for four years from 1999.
Prior to his election to Parliament Mr Obeid achieved a prominent position in the Lebanese and wider community. During the 1980s he served on the Board of Trustees of the Art Gallery of New South Wales, was a part time Commissioner of the Ethnic Affairs Commission, served on the Board of Governors of the Law Foundation of New South Wales and was Vice President of the Ethnic Press Association of Australia. [124] In 1990 he led a delegation to Iraq which secured the release of some hostages held by the Iraqi regime just prior to the first Gulf War. [125]
There was tendered at the sentence hearing a number of testimonial statements concerning the significant support that Mr Obeid has provided to his Church and the work it performs, [126] including from his parish priest [127] and Archbishop. [128] A similar letter of support was provided by the President of the Supreme Islamic Shiite Council of Australia. [129]
A number of other testimonials referred to his work for other community organisations as well as various acts of kindness he has performed for persons and organisations in need over the years. This included his support for various charities in Australian and Lebanon, [130] support for sporting clubs, [131] his funding of the rebuilding of a church in Lebanon, [132] assisting a neighbour who was the subject of a home invasion, [133] providing support for Lebanese community organisations [134] and his efforts to assist Lebanese refugees seeking to resettle in Australia. [135] Numerous friends and acquaintances of Mr Obeid testify to his generous nature and the position of leadership in the community that he occupied. [136]
This material, and the absence of any prior convictions, means that Mr Obeid is to be considered of prior good character and that is a mitigating factor in sentencing (Sentencing Act; s 21A(3)(f)). However, consistent with what I have already observed (at [82]), in cases of corruption including wilful misconduct in public office where the need for general deterrence is especially strong, prior good character is to be afforded less weight than it otherwise would (R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [410] and R v Williams (2005) 152 A Crim R 548, at [60] per Wood CJ at CL; Blackstock at [67] per Campbell J with whom Macfarlan JA and Barr AJ agreed).

Family

Mr Obeid has been married for over 50 years. He has nine children and 33 grandchildren. Many members of his family provided testamentary material in support of Mr Obeid, including three of his grandchildren, [137] various nieces and nephews, [138] some of his sons and daughters in law, [139] and some of his children. [140] They all referred to Mr Obeid's devotion to his family and his support for them. While this material undoubtedly arouses sympathy, it is of no real assistance to Mr Obeid. There is no doubt that the members of Mr Obeid's family are exceptionally close. However, it was Mr Obeid's actions in prioritising the interests of his family over his obligation to the public that led to his offending in the first place. A parliamentarian cannot use their position to afford generosity to their family or associates in any form.
A number of the testimonials from family members also referred to the effect on them of the adverse publicity that Mr Obeid has received over the years and their distress at the prospect that he may be incarcerated. For example, one of Mr Obeid's grandsons recounted having to defend his grandfather in the schoolyard and the classroom. [141] Dr Lennings also interviewed Judith Obeid and his report confirms the severe distress that she has suffered from the adverse publicity her husband has attracted and the prospect that he may be incarcerated. [142] At the sentencing hearing a statement from Judith Obeid was tendered. In that statement Mrs Obeid describes her long and successful marriage. She states how hard her husband has worked for their family and how supportive he has been towards her.
Clearly, Mrs Obeid's family is her life. I accept that any decision to incarcerate Mr Obeid will cause significant distress to Judith Obeid. Dr Lennings opines that in turn Mr Obeid will be distressed by his wife's suffering. [143] This too can be accepted. I address below the relevance of the impact of adverse publicity. Leaving that aside, the occasioning of hardship to the family of an offender from their imprisonment is only taken into account, at least in a substantial way, in "exceptional circumstances" (see Hay v R [2013] NSWCCA 22 at [49]). The hardship that would be occasioned to Mr Obeid's family, including Judith Obeid, if he was imprisoned does not meet that description. Otherwise, it can be accepted that Mr Obeid's reaction to the harm that his own conduct has caused to his family can be considered in the synthesis of the various factors affecting the determination of the appropriate sentence.

Media Reporting

The written submissions lodged on behalf of Mr Obeid contend that he has suffered a form of extra curial punishment from extensive media coverage which, it was submitted, had humiliated him and, as noted, affected members of his family. [144] In support of that submission there was tendered at the sentence hearing two volumes of press clippings concerning Mr Obeid's trial, which included online reports. [145] All the reports published prior to the jury's verdict reported on the trial in a manner consistent with the media's obligations. The reports published after the verdict concern such matters as Mr Obeid's career, commentary on the verdict, coverage of civil proceedings initiated by Mr Obeid, the adjournments of the sentence hearing, a proposal floated by senior politicians to seek legislative change to remove Mr Obeid's right to a parliamentary pension [146] and some unsolicited advice to the Court on the appropriate sentence. Some of the reporting on the jury's verdict and its aftermath was somewhat unrestrained (eg "Obeid a disgrace", [147] "…Fast Eddie, the Labor godfather" [148] and "The Cancer that ate Labor") [149] . However, generally all the reports were concerned with the subject matter of corruption and politics, which is self‑evidently a topic of legitimate public debate.
A recent example whereby a sentence was mitigated on account of extensive publicity was R v Wran [2016] NSWSC 1015 ("Wran"), where articles were published that made allegations about the offender's "criminality, sexual conduct and reputation that [had] no basis in fact but from which she [had] no ability to defend herself" (at [76]). It was also found in Wran that material that was published represented a gross invasion of the offender's privacy in that her "private correspondence [had] been extracted for prurient consumption" and transcripts of her telephone conversations with her mother were made available to the public (Wran at [76]). In those circumstances, Harrison J concluded that the sentence imposed should take account of these publications as they increased "the risk of custodial retribution", damaged the offender's reputation and impeded her "recovery from her ongoing mental health and drug related problems" (Wran at [79]).
Wran is an example of a case where extra curial punishment was occasioned by the publication of humiliating material obtained as a result of criminal charges being laid that was either unrelated to the offending in question or where the level of publicity for the material was disproportionate to any relevance it had to the offence in question. The offender in Wran was not a public figure and her offending did not involve the abuse of any public position.
In this case the offender is a public figure, the offending did involve the abuse of a public position and the media reports that have been tendered do not sensationalise facts that are either irrelevant or trivial to the offending conduct. Instead, they are concerned with an issue of public importance, namely, political corruption. In those circumstances it seems incongruous that the consequential public humiliation should mitigate the sentence. Nevertheless, there is a body of authority to suggest that it can. In Ryan v The Queen (2001) 206 CLR 267 ("Ryan") at [177], Callinan J observed that "the crime of a person occupying an office of some prominence will often attract much greater vilification, adverse publicity, public humiliation, and personal, social and family stress than a crime by a person not so circumstanced" and that those consequences "should not be ignored by the sentencing court". Kirby J stated a similar view (at [123]) but McHugh J was of the contrary opinion (at [53]).
This difference of opinion was adverted to by the Court of Criminal Appeal in Kenny v R [2010] NSWCCA 6 ("Kenny") at [18] to [22] per Basten JA and Einfeld v R [2010] NSWCCA 87 ("Einfeld") at [99] per Basten JA. In the end result, the principle binding this Court at first instance appears to be that such publicity will only be considered where "it reaches such proportion as to have a physical or psychological effect on the offender" (Duncan v R [2012] NSWCCA 78 at [28] per Basten JA citing Kenny at [49] per Howie J; see also Nuttall at [65]). At first instance, in Einfeld the relevant publicity was found to have that effect (R v Einfeld [2009] NSWSC 119 at [161] per James J).
Dr Lennings' report describes Mr Obeid as stating that his reputation has been destroyed, [150] but neither it nor the testimonial material describes the adverse publicity that Mr Obeid has received, much less that which relates to this case, as having had any direct physical or psychological effect on him. Instead, it has had an effect on his family. It follows that it is only in the relatively limited sense that Mr Obeid is affected by their suffering from the consequences of his offending that this can be considered.
It was also submitted that the potential loss of Mr Obeid's parliamentary pension can be taken into account. The loss of financial benefits such as superannuation can be considered in determining sentence (Ryan at [54] per McHugh J). Accordingly, I can and will afford this some weight but not much given that the only evidence suggesting this may occur are the press reports to which I have referred.

Medical Conditions

A number of medical reports concerning Mr Obeid were tendered at the sentencing hearing. Those reports reveal that Mr Obeid underwent bypass surgery in 1995 and 2005 and had arterial stenting procedures in 1999 and again in 2015 following an episode of chest pain and breathlessness. [151] Mr Obeid has suffered from type 2 diabetes for years. He must ingest insulin with his meals and receives a long‑acting insulin injection daily. [152] According to his treating endocrinologist, Dr Kean, he "self manage[s] his diabetes currently without difficulty". [153] Otherwise, Mr Obeid suffers from raised cholesterol, high blood pressure and colonic polyps that require periodic colonoscopies. [154] He has previously suffered from Guillain‑Barre Syndrome, which is a rapid-onset of muscle weakness caused by the immune system damaging the peripheral nervous system. It is presently stable. [155] Further, a thoracic physician reports that scans show that Mr Obeid has "asbestos related pulmonary disease" and bronchiectasis. [156]
On 3 August 2016, Mr Obeid tripped at home and fell onto a coffee table which collapsed under him. He was taken to a hospital on the North shore of Sydney but discharged. The next day he attended his general practitioner, Dr Lahood, who commissioned an MRI scan and had him admitted to St Vincent's Hospital. [157] He came under the care of Dr John O'Neill who concluded that he had suffered a mild stroke caused by an embolism and prescribed blood thinning medication. [158]
Mr Obeid was referred to Dr David Rosen a consultant neurologist who examined him and reviewed his condition in light of the totality of the available material concerning all of his various medical conditions. He concluded that Mr Obeid has "ongoing post stroke symptoms and impairments that affect mainly his gait and balance". He considered that there was some "permanent albeit relatively mild damage … to the right side of the brain" as seen on an MRI scan. [159] Dr Rosen estimated that Mr Obeid had a risk of a recurrent stroke from any cause "in the region of 5% per year." [160]
The Crown arranged for Mr Obeid to be reviewed by a consultant geriatrician and physician, Dr Tuly Rosenfeld. Dr Rosenfeld's assessment of Mr Obeid's neurological status was not relevantly different to that of Dr Rosen. [161] Dr Rosenfeld detected "[m]ild cognitive impairment". [162]
Overall, Dr Rosenfeld concluded that the various medical conditions from which Mr Obeid suffers are "stable and controlled" and there "is no clearly foreseeable expectation in the short to midterm that specific interventions will be required". However, he accepts that there is a "need for regular monitoring and review, adjustment of specific therapies from time to time, blood investigations, diabetic dietary measures, physical therapy and exercise". [163] Dr Rosen's description of the type of care required by Mr Obeid is not relevantly different in that he considers that Mr Obeid "ideally" requires a "well coordinated management plan" that "takes into consideration each of Mr Obeid's medical conditions" and medicinal requirements. [164]
Two interrelated issues of fact were raised by the material concerning Mr Obeid's medical condition, namely, the likely standard of care that he can expect to receive if he is incarcerated and his likely life expectancy if he is incarcerated compared with his life expectancy if he serves a sentence in the community.
The Crown tendered a number of reports from "Justice Health" [165] being a statutory health corporation the functions of which include the provision of health services to offenders and persons in custody (Crimes (Administration of Sentences) Act 1999 (NSW); s 236A). These reports address the various conditions affecting Mr Obeid and describe the medical services that will be available to him to address them if he is incarcerated. The reports state that Justice Health's services include 24‑hour nursing in some metropolitan centres, regular medical officer and nursing clinics, a physiotherapy service at the major metropolitan correctional centres, a medical subacute unit within the Long Bay hospital, an aged care rehabilitation unit at Long Bay hospital and access to specialists at the Prince of Wales Hospital. [166] The reports indicate that, if Mr Obeid is incarcerated, Justice Health will request that he be accommodated in the metropolitan area at a facility that has full time nursing care and nearby access to specialists and emergency departments. [167]
Dr Rosen considered it was unlikely that Mr Obeid would receive appropriate medical treatment in custody if he was incarcerated. He considered that there were "difficulties" with "managing chronic diseases with access to appropriate and timely care in the prison system". [168] Dr Rosenfeld disagreed. He was formerly the Director of Geriatric Medicine and Senior Specialist in Geriatric Medicine at Prince of Wales Hospital which, as noted, interacts with Justice Health. Based on his knowledge of Justice Health, which he accepts has limitations, Dr Rosenfeld considers it "likely that Mr Obeid would be able to access appropriate and effective care within the Justice Health system". [169]
In his oral submissions, the Crown Prosecutor did not accept that Mr Obeid would receive a superior level of care if he remained in the community compared with what he would receive if he is incarcerated. [170] While that may be the case for some members of the population I do not accept that it is correct for Mr Obeid. As the events of August 2016 illustrate, Mr Obeid has an existing support network that includes an experienced general practitioner, a strongly supportive family and specialists familiar with his circumstances. The Crown Prosecutor's written submissions contend that Mr Obeid's present treatment regime is "wholly medication based". [171] However, the nature of Mr Obeid's ailments are such that he needs to be monitored. While there is obviously a form of supervision in custody, that is not the same as the level of family and medical support that Mr Obeid has in the community. Nevertheless, while I accept that Mr Obeid would receive a superior level of care in the community, the material tendered by the Crown on this issue at least satisfied me that he would receive an adequate level of care if he is incarcerated. As noted by Dr Rosenfeld, Mr Obeid's present condition is "stable and controlled".
Leaving aside the possibility that he may be incarcerated, Dr Rosen and Dr Rosenfeld were in broad agreement as to Mr Obeid's life expectancy in light of his various medical conditions. Dr Rosen estimated that it was between 76.6 years and 77.7 years [172] and Dr Rosenfeld estimated that it was 80.3 years. [173] However, Dr Rosen estimated that Mr Obeid's life expectancy would reduce much further if he was incarcerated, specifically, by two years for every year he was in custody. [174] Dr Rosenfeld noted that this conclusion was based on a study of a cohort of New York prisoners who were released from prison after most of them committed violent or drug related crimes. [175] I do not accept that that study has any relevance to Mr Obeid's circumstances and I do not accept Dr Rosen's estimate of Mr Obeid's life expectancy should he be incarcerated. Instead, I consider that it is within the range of 77 to 80 years that I have mentioned.
On behalf of Mr Obeid it was submitted that his limited life expectancy was a matter that warranted grounds for leniency. It was otherwise submitted that custody would be onerous for someone of his age and with his ailments and that he would receive a far superior level of care in the community.
The principles relevant to a submission that a penalty should be mitigated on account of health concerns and the relevance of the length of a sentence to a person's life expectancy can be briefly stated as follows.
First, in circumstances where illness is relevant to the determination of a sentence, its weight must be assessed in light of "all the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and any damage to health or shortening of life" (R v Achurch [2011] NSWCCA 186; 216 A Crim R 152, "Achurch" at [117] per Johnson J citing: R v Sopher (1993) 70 A Crim R 570 at 573; R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at 6-8 [23]-[31]).
Second, although the health of an offender is relevant to the type and length of any sanction imposed, generally it will only be a mitigating factor "when there is evidence to show that there is a serious risk that imprisonment will be a greater burden on an offender, by reason of ill health, or where there is a serious risk that imprisonment will have a grave adverse effect on the offender's health" (R v Badanjak [2004] NSWCCA 395 at [9] per Wood CJ at CL with McClellan AJA and Smart AJ agreeing; R v Smith (1987) 44 SASR 587 at 589; Achurch at [118]).
Third, the relative strictness that is applied to a consideration of whether some matter affecting the health of an offender operates as a substantial mitigating factor does not necessarily apply when such matters are considered in combination with other factors such as age in determining whether "special circumstances" are established for the purposes of s 44(2) of the Sentencing Act (see Griffiths v The Queen (1989) 167 CLR 372 at 379 per Brennan and Dawson JJ; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704). However, double counting of matters affecting the length of the head sentence and matters that might constitute special circumstances must be avoided (R v Fidow [2004] NSWCCA 172 at [18] per Spigelman CJ ("Fidow")).
Fourth, an otherwise appropriate sentence of imprisonment should not be reduced on the basis that it is likely to extend to most of the offender's remaining life expectancy (Goebel-McGregor v R [2006] NSWCCA 390 at [128] per James J, with whom Hidden and Hislop JJ agreed; Barton v R [2009] NSWCCA 164 at [22]).
I have described the ailments affecting Mr Obeid and his treatment regime. They are not unusual for a person of his age. I accept that they may make any time he serves in custody more difficult and that it is unlikely that he would receive the same standard of care that he would receive in the community, although it will nevertheless be an adequate standard. However, I do not accept that the combination of his age, health and reduced life expectancy is a matter of any real significance to a determination of whether he should be incarcerated or not. If he is to be incarcerated those matters can be taken into account in the mix of factors relevant to a determination of the appropriate length of the sentence but not to any significant degree. I also accept that his age and health might, with other factors, constitute special circumstances, however as just stated they cannot be taken into account as both mitigating any head sentence and determining the existence of special circumstances (Fidow).

Delay

On behalf of Mr Obeid, it was submitted that there was a significant delay on the part of the prosecuting authorities in commencing the prosecution in that the offence was committed in 2007, when Mr Obeid was 63, yet proceedings were only commenced against him in November 2014. It is an agreed fact that the relevant hearings of the Independent Commission Against Corruption ("ICAC") into this matter commenced in October 2013, that the ICAC report was published in June 2014 and a brief of material was provided to the Office of the Director of Public Prosecutions during September and October 2014.
This history does not indicate any undue delay between the commencement of the ICAC hearing and the commencement of the proceedings. In relation to the period between the commission of the offence in 2007 and the commencement of the ICAC hearing, there is nothing to indicate that any relevant investigative or prosecutorial body was on notice of the commission of an offence during that period. Corrupt conduct is notoriously difficult to detect, much less prosecute.
The delay between the commission of an offence and the imposition of a sentence is potentially relevant in three respects. The first is that the "uncertain suspense in which a person may be left" for an extended period can be taken into account (Blanco v R [1999] NSWCCA 121 ("Blanco") at [16]). In circumstances where it has not been shown that any relevant investigative or prosecutorial body was on notice of Mr Obeid's conduct and delayed taking action, I do not accept that this aspect of delay has any relevance to his sentencing (cf Coles v R [2016] NSWCCA 32 at [17]). The second is that an offender may demonstrate progress towards rehabilitation in the intervening period (Blanco at [16]). Mr Obeid will be sentenced on the basis that there is no prospect of him offending again. The third is that a "sentence for a stale crime does call for a measure of understanding and flexibility of approach" (Blanco id). I do not accept that Mr Obeid's offence is a "stale crime".

Other Sentencing Factors

Section 21A(2) of the Sentencing Act lists a series of aggravating factors the Court is to take into account in determining the appropriate sentence. These factors cannot be considered as aggravating the offence if they are elements of the offence. Section 21A(3) lists a series of mitigating factors.
The only specific aggravating factor pointed to by the Crown is that the "the offence was committed for financial gain" (Sentencing Act, s 21A(2)(o)). [176] I have already explained the effect of the jury's verdict in that respect and this has formed 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 at this point.
On behalf of Mr Obeid it was submitted that eight mitigating factors were established. [177] The first was that "the injury, emotional harm, loss or damage caused by the offence was not substantial" (s 21A(3)(a)). I have accepted that Mr Obeid's representations to Mr Dunn had no effect on the ultimate decision to offer CQR new leases. In that respect, no loss or damage was occasioned. However, as I have explained, the crime of wilful misconduct in public office necessarily involves a violation of a public trust. When that involves a parliamentarian, damage is caused to the institutions of government, specifically Parliament.
The second mitigating factor submitted on behalf of Mr Obeid was that the offence was not part of a planned or organised criminal activity (s 21A(3)(b)). I do not accept that this mitigating factor has been established. While the Crown did not prove that Mr Obeid had been planning to intervene in the lease renewal process for some time, it was not positively established that his actions were spontaneous.
The third, fourth, fifth and sixth mitigating factors suggested on behalf of Mr Obeid were that the offender does not have any record (or any significant record) of previous convictions (s 21A(3)(e)), that the offender was a person of good character (s 21A(3)(f)), that the offender is unlikely to re-offend (s 21A(2)(g)) and that the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise (s 21A(3)(h). All these factors are established.
The seventh mitigating factor is that remorse has been shown by the offender for the offence. Section 21A(3)(i) of the Sentencing Act provides that the remorse of an offender is a mitigating factor, but only if the offender has provided "evidence that he or she has accepted responsibility for his or her actions" (sub-s(i)) and "has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage" (sub‑s (ii)). Mr Obeid has done neither.
The eighth and last mitigating factor relied on by Mr Obeid, was that he provided assistance to law enforcement authorities (s 21A(3)(m)). The written submissions filed on behalf of Mr Obeid referred to the cooperative and efficient manner in which the trial was conducted and contended that this amounted to "assistance provided to law enforcement authorities …. in proceedings relating to, the offence concerned" as referred to in s 23 of the Sentencing Act. This aspect of s 23 is directed to persons who give evidence or assistance to the prosecution or volunteer additional information concerning their own conduct and not to the cooperation by an accused in the conduct of their own trial as occurred here. However, the conduct of the trial by an accused can still be considered. Section 21A(3)(l) provides that the degree of pre-trial disclosure by the defence is a mitigating factor in sentencing. Section 22A(1) expands upon this by enabling a court to impose a lesser penalty than would otherwise be the case having regard to the degree to which the administration of justice has been facilitated by an offender's defence, including by disclosures made prior to or during the trial. Any such lesser penalty must not be disproportionate to the nature and circumstances of the offence (s 22A(2)).
I accept that the manner in which the trial was conducted by and on behalf of Mr Obeid warrants some leniency on this account. The cross examination of the Crown witnesses was concise. There were a number of admissions made and agreements reached over the contents of exhibits which shortened the length of the trial and made the identification of the real issues that the jury had to determine that much easier.

Conclusion

Courts do not determine sentences by consulting opinion polls or surveying the views of the political commentariat. Instead, they undertake an objective assessment of the nature of the offending, determine the personal circumstances of the offender and then apply principles derived from statute and case law.
To that end, I have described the conduct of Mr Obeid that constituted the crime of wilful misconduct in public office. As noted, even though it was effectively constituted by a single telephone call, his conduct was a very serious example of that offence given the nature of the duty owed by him as a parliamentarian and the extent of his departure from that duty. I have also canvassed the other considerations relevant to sentencing and in doing so described Mr Obeid's career and personal circumstances. If Mr Obeid had not wilfully abused his position as a parliamentarian then his life and career would be a testament to the values of hard work, family and public service. Instead, his time in public life has produced a very different legacy.
Section 3A of the Sentencing Act specifies the purposes of sentencing. These include specifically deterring the offender from committing similar offences (s 3A(b)), protecting the community from the offender (s 3A(c)) and promoting the rehabilitation of the offender (s 3A(d)). In Mr Obeid's case there is no prospect of him committing any further offence and the community does not now need any protection from him.
Section 3A also specifies that the purposes of sentencing include ensuring the offender is adequately punished for the offence (s 3A(a)), making the offender accountable for their actions (s 3A(e)), denouncing the conduct of the offender (s 3A(f)), recognising the harm done to the community by the offence (s 3A(g)) and deterring others from committing similar offences (s 3A(b)).
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.
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. Given the nature of the offending and notwithstanding Mr Obeid's personal circumstances, I am satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate (Sentencing Act; s 5(1)). I have also determined that such a sentence must be one that is served by full time imprisonment for a period that exceeds the length of the sentence that would otherwise enable consideration of the possibility of home detention or the imposition of an intensive correction order (Sentencing Act; s 6(1) and 7(1)). However, as adverted to (at [119]), the combination of Mr Obeid's health and age justifies a finding of special circumstances and a variation of the maximum ratio between the balance of term and the non‑parole period referred to in s 44(2) of the Sentencing Act.
Edward Moses Obeid, I note that you have already been convicted of wilful misconduct in public office. You are now sentenced to a term of imprisonment of 5 years.
Pursuant to s 44(1) and s 44(2) of the Sentencing Act and in light of the finding of special circumstances, I set a non-parole period of 3 years commencing on 15 December 2016, and an additional term of 2 years commencing on 15 December 2019 and ending on 14 December 2021.
The sentence will be taken to have commenced on 15 December 2016. The offender will be eligible for release on parole on 15 December 2019 and the sentence will expire on 14 December 2021.

Endnotes

[1951] HCA 5; 83 CLR 1 (the "Communist Party Case")
At p 187
Ex A, p 7 at [1]
Ex 2 on sentence, tab 1 at [20]
Ex A, p 7 at [1]
Ex A, p 7 at [3] to [5]
Ex A, p 127
Ex A, pp 1 to 3
Ex A, pp 37 to 38
T 07/06/16 at 57.5
T 07/07/16 at 101.45
Ex A, pp 85 and 92
Ex A, p 7 at [6]
Ex A, p 7 at [6]
Ex A, pp 24 and 35
T 07/06/2016 at 102.41, 104.29, 109.4 and 110
T 07/06/16 at 108.32
T 07/06/2016 at 108
T 08/06/2016 at 133.42
T 07/06/16 at 100; T 08/06/16 at 133.11
T 07/06/16 at 111
T 08/06/16 at 139.21
T 07/06/16 at 114.44
T 08/06/16 at 134 to 135, esp 135.15
T 08/06/16 at 134.40
Ex C
Ex A, pp 46a and 46c; Ex D
Ex A, pp 48a and 48d
T 14/06/16 at 360
Summing up ("SU"), p 14
T 15/06/16 at 432.49
T 14/06/16 at 368.31 and 372
T 14/06/16 at 373.15
T 15/06/16 at 428.7
T 14/06/16 at 372.47
T 15/06/16 at 426.1
T 15/06/16 at 427.40
T 08/06/16 at 136.6 to 137
T 08/06/16 at 139.37
T 08/06/16 at 152:21
Ex A, p 99
Ex A, p 100
T 15/06/16 at 439
Ex A, p 104
Ex A, pp 206 to 207
T 15/06/16 at 449.20
T 15/06/16 at 449.41
T 09/6/2016 at 202.47 and 249.30
T 09/06/16 at 254.38
T 16/06/16 at 524.21
T 16/06/16 at 529.37
Ex A, p 223 and 249
Ex A, p 240, clause 4.5
Ex A, p 250
Ex A, p 251
T 17/06/16 at 574.13 and 574.39
T 17/06/16 at 575.31
T 17/06/16 at 575.20
T 17/06/16 at 582
T 17/06/16 at 583.25
T 17/06/16 at 583.34
T 20/06/16 at 627.15
T 20/06/16 at 631 to 632
T 17/06/16 at 583
T 17/06/16 at 583.50
Ex A, pp 15 to 17
Ex A, p 10 at [40]; T 17/06/16 at 618.1
T 17/06/16 at 594.13
T 17/06/16 at 601.36
T 17/06/16 at 617.29
Ex A, p 9
T 17/06/16 at 552.16
T 17/06/16 at 599.28
T 16/06/16 at 533.30
T 17/06/16 at 616.33
T 16/06/16 at 533.31; T 16/06/16 at 536.21; T 17/06/16 at 616.35
Ex A, p 262
Ex A, p 265, clause 4.5
Ex A, p 261
Ex A, pp 268 and 274
Ex A, p 290
Ex A, p 295
T 08/06/16 at 129.40 and 168.27
T 21/06/2016 at 711.44
MFI 16
SU, p 19
SU, p 21
SU, pp 25 to 26; MFI 16
T 06/06/16 at 2
SU, pp 26 to 27
SU, p 41
T 21/06/16 at 719.10
T 20/06/16 at 651.5
Ex A, p 8 at [15]
see SU, p 60
Defence Outline of Submissions on Sentence at [19] and [73]
SU, p 62
SU, p 61
SU, p 61
MFI 16; SU, p 63
SU, p 64
SU, p 65
SU, pp 26 and 67
SU, p 72
SU, p 72
T 20/06/16 at 629.4
T 20/06/16 at 631 to 632
T 20/06/16 at 633.37 to 41
T 20/06/16 at 632 to 633
Defence Outline of Submissions on Sentence at [61]
Defence Outline of Submissions on Sentence at [24]
Defence Outline of Submissions on Sentence at [65]
Defence Outline of Submissions on Sentence at [13] to [15]
T 17/06/16 at 584.42
T 17/06/16 at 585.13
Ex 2 on sentence, tab 1
Ex 2 on sentence, tab 1 at [7]
Independent Commission Against Corruption Act 1988 (NSW) and the Police Integrity Commission Act 1996.
Defence Outline of Submissions on Sentence at [13]
Ex 2 on sentence, tab 1 at [13]
Ex 2 on sentence, tab 1 at [16]
Ex 2 on sentence, tab 1 at [18]
Ex 2 on sentence, tab 1 at [19]
Ex 2 on sentence, tab 28
Ex 2 on sentence, tabs 17 and 22
Ex 2 on sentence, tabs 27 and 37
Ex 2 on sentence, tab 16
Ex 2 on sentence, tab 42
Ex 2 on sentence, tab 47
Ex 2 on sentence, tabs 11, 18, 23, 39
Ex 2 on sentence, tabs 11, 13 and 48
Ex 2 on sentence, tab 19
Ex 2 on sentence, tab 9
Ex 2 on sentence, tabs 31, 49, 50 and 52
Ex 2 on sentence, tabs 20 and 36
Ex 2 on sentence, tabs 30, 35, 37, 38, 40, 43, 44, 45, 46 and 51
Ex 2 on sentence, tabs 8, 10 and 26
Ex 2 on sentence, tab 14
Ex 2 on sentence, tabs 24, 33 and 29
Ex 2 on sentence, tabs 34 and 21
Ex 2 on sentence, tab 8
Ex 2 on sentence, tab 1 at [33]
Ex 2 on sentence, tab 1 at [32]
Defence Outline of Submissions on Sentence at [92ff]
Ex 1 on sentence
Ex 1 on sentence, pp 223 to 225, 511 and 609
Ex 1 on sentence, p 166
Ex 1 on sentence, p 134
Ex 1 on sentence, p 176
At [31]
Ex A on sentence, tab 1, p 5; Ex 2 on sentence, tab 4
Ex 2 on sentence, tab 6
Ex 2 on sentence, tab 6
Ex A on sentence, tab 1, at 10; Ex 2, tab 5
Ex A on sentence, tab 1, p 10
Ex A on sentence, tab 7
Ex 2 on sentence, tab 3
Ex 2 on sentence, tab 2, p 6.10
Ex 2 on sentence, tab 2, p 17.2
Ex 2 on sentence, tab 2, p 18.1
Ex A on sentence, tab 1, pp 7 and 9
Ex A on sentence, tab 1, p 9.5
Ex A on sentence, tab 1, p 10.8
Ex 2 on sentence, tab 2, p 19.9
Ex A on sentence at tabs 2 to 6
Ex A on sentence at tab 6
Ex A on sentence at tab 4
Ex 2 at tab 2, p 19.6
Ex A at tab 2, p 12
T 01/12/2016 at 11.35
At [56]
Ex 2 on sentence, tab 2, p 18.10
Ex A on sentence, tab 2, p 12.5
Ex 2 on sentence, tab 2, p 19.1
Ex A on sentence, tab 2, p 13
Crown Submissions on Sentence at [39]
Defence Outline of Submissions on Sentence at [111]

Amendments 16 December 2016 - Minor typographical amendments to [78], [83], [85] and [138]. 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: 11 February 2020

Police Integrity Commission Act 1996(NSW)

(Crimes (Administration of Sentences) Act 1999(NSW)

NSWCCA 301 Jaturawong v Regina [2011] NSWCCA 168 Kenny v R [2010] NSWCCA 6 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Obeid v R [2015] NSWCCA 309 Question of Law Reserved (No 2 of 1996) 1996 67 SASR 63 R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 R v Badanjak [2004] NSWCCA 395 R v BJW [2000] NSWCCA 60; 112 A Crim R 1 R v Boston [1923] HCA 59; 33 CLR 386 R v Bruneau, 1963 CarswellOnt 22; [1964] 1CCC 97; [1964] 1 OR 263, 42 CR 93 R v Einfeld [2009] NSWSC 119 R v Fidow [2004] NSWCCA 172 R v Hokin, Burton and Peisely (1922) 22 SR (NSW) 280 R v Nuttall; ex parte Attorney-General (Qld) [2011] QCA 120; 209 A Crim R 538 R v Obeid (No 11) [2016] NSWSC 974 R v Obeid (No 2) [2015] NSWSC 1380 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Phillip Hans Field HC Auckland CRI-2007-092-18132, 6 October 2009 R v Pieper [2014] NSWDC 242 R v Purcell [2010] NSWDC 98 R v Quach [2010] VSCA 106; 201 A Crim R 522 R v Qutami [2001] NSWCCA 353 R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 R v Rouse (Court of Criminal Appeal (Tas), 19 October 1990, unreported) R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Smith (1987) 44 SASR 587 R v Sopher (1993) 70 A Crim R 570 R v Williams (2005) 152 A Crim R 548 R v Wran [2016] NSWSC 1015 Ryan v The Queen (2001) 206 CLR 267 Category: Sentence Parties: Regina (Crown) Edward Moses Obeid (Offender) Representation: Counsel: P Neil SC (Crown) B Hughes SC; N Mikhaiel (Offender)

Judgment

HIS HONOUR: In Australian Communist Party v The Commonwealth, [1] Dixon J warned that democratic "[f]orms of government may need protection from dangers likely to arise from within the institutions to be protected". [2] This case provides an illustration of such a danger.
On 6 June 2016 the offender, Edward Moses Obeid, was arraigned in this Court on an indictment that charged him with one count of the common law offence of wilful misconduct in public office. He pleaded not guilty. A jury was empanelled and the trial proceeded.
On Tuesday 28 June 2016 the jury returned a verdict of guilty. I recorded a conviction. The proceedings were adjourned until 12 August 2016 for submissions on sentence. The sentence proceedings were later adjourned to 6 October 2016 on Mr Obeid's application due to his ill health. They were further adjourned to 1 December 2016 on the application of the Crown.

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