Eddie Obeid: The rise, reign and fall of NSW’s most notorious political powerbroker

Eddie Obeid was renowned as a fearsome Labor kingmaker
His business and political empires became entwined
An ICAC finding of corruption lead to his prosecution

Obeid has been sentenced to five years’ jail, with a minimum of three years, for misconduct in a public office in relation to his family’s secret business dealings at Circular Quay.


Update 1.28pm 15/12/16

‘Bail is refused’

“I direct Mr Obeid be taken down [into the cells],” Justice Beech-Jones says.

After loosening his tie and handing his watch to his lawyers, Obeid was led from the dock in court five in the historic Darlinghurst Supreme Court by corrective services officers.

Justice Beech-Jones says Obeid’s lawyers have not established “exceptional circumstances” exist to warrant a grant of bail pending his appeal against conviction and sentence.

“I do not accept Mr Obeid’s appeal rises any higher than being reasonably arguable,” he says of the merits of the foreshadowed appeal.


Eddie Obeid to be stripped of parliamentary pension as Baird government reacts to his sentencing

  • Sean Nicholls

Former Labor minister Eddie Obeid is set to be stripped of his annual $120,000 parliamentary pension following his sentencing for wilful misconduct in public office.

On Thursday, Obeid was sentenced to a maximum 5 years in jail with a non parole period of three years.

Shortly afterwards, Premier Mike Baird announced MPs convicted of a serious offence during their time in office will lose their parliamentary pension, even if they quit before charges are laid.

The announcement means Obeid is set to be stripped of his lifetime annual pension worth more than $120,000 a year.

Presently MPs convicted of a serious offence – punishable by at least five years imprisonment – can keep their pensions if they are not charged while in office.

“The crimes of Eddie Obeid and his cronies are the most serious instance of official corruption we have seen in our lifetimes,” Mr Baird said.

“Regardless of political affiliation, any MP who commits a serious offence while in office should face the consequences, and should not be shielded simply because they resign before being charged.

“We will work cooperatively with the Opposition and cross-bench MPs over the summer recess to bring forward amendments that repair this glaring anomaly, and we will make sure they capture Obeid and any others who find themselves in his situation.”

The change will require an amendment to legislation to be put to parliament early next year.

The Baird government has also indicated it will claw back the estimated $280,000 legal assistance he was given for this particular ICAC inquiry.

MORE TO COME

Click here to read full sentencing judgement


Eddie Obeid sentenced for Circular Quay corruption

Michaela Whitbourn

‘Sanctity of jury verdict’

Justice Beech-Jones says the “public interest upholding the sanctity of the jury’s verdict” is a factor weighing against granting bail.

The corrupt former Labor kingpin’s lawyers have also suggested he should be granted bail because he is facing a committal hearing on other corruption charges next year.

The Supreme Court judge says it can be accepted it will be harder for Obeid to prepare for that case while in jail.

The judge decides

Justice Robert Beech-Jones is now delivering his decision on whether Obeid should be granted bail. It’s a busy morning for the Supreme Court judge.

Justice Robert Beech-Jones delivers his decision in the Eddie Obeid sentencing.
Justice Robert Beech-Jones delivers his decision in the Eddie Obeid sentencing.  

The final, final point

It feels like Obeid’s barrister is holding out the promise of a “final” point but there is always another one to be made.

Guy Reynolds, SC, says Obeid will appeal not only his conviction but his sentence.

And yes, he still wants “a release order or bail” pending that appeal. If he doesn’t get it from Justice Beech-Jones he is likely to ask the Court of Criminal Appeal to decide on that point too.

‘Unreasonable verdict’

Obeid’s barrister Guy Reynolds, SC, says he is moving onto his “final” point.

Not only does Reynolds say the jury was misdirected by Justice Beech-Jones, he says the jury’s verdict was “unreasonable and cannot be supported by the evidence”.

It’s good to cover all one’s bases.

Reynolds says he is “grateful” to the court for allowing him to set out the grounds of appeal, as “aggravating” as it may be.

He reiterates he is seeking bail for his 73-year-old client pending an appeal.

Eddie Obeid outside court this morning.
Eddie Obeid outside court this morning. Photo: Daniel Munoz

Still here

Oh yes, we’re still here in court. Obeid’s barrister Guy Reynolds, SC, is fleshing out his submission there has been a miscarriage of justice.

Obeid has no intention of going to jail and his legal team wants Justice Beech-Jones to grant bail today.

Get comfortable. This could be a while.

Back to top

Obeid to be stripped of pension

The Herald‘s state political editor Sean Nicholls has the exclusive: the Baird government will strip Obeid of his annual $120,000 parliamentary pension following his jail sentence for misconduct in public office.

Read the full story here.

Someone's having a good day, and it ain't Eddie.
Someone’s having a good day, and it ain’t Eddie. Photo: James Alcock

No love lost

Former Labor premier Kristina Keneally is out of the blocks early to offer her views on Obeid’s jail sentence. She’s not mincing her words.

It ain’t over

Usually when a person is sent to prison, they are taken away from the courtroom almost immediately by corrective services.

Not so in the Obeid case. His lawyer, Guy Reynolds, SC, is in full flight about the alleged miscarriage of justice suffered by his client. He wants bail.

An impassive Obeid remains in the dock as Reynolds and Justice Beech-Jones engage in a robust discussion about the latter’s summing up to the jury.

What next

An appeal is already in the offing but for the time being Obeid is going to jail for a maximum of five years, with no possibility of release for three years.

What next? Glad you asked. Obeid and his entrepreneurial middle son, Moses, have been charged over a separate deal exposed at ICAC, relating to the very fortuitous creation of a coal mining tenement over their rural property in the Bylong Valley near Mudgee.

The deal netted the Obeid family $30 million, ICAC heard.The men will face a three-week committal hearing starting on May 29 to test the strength of the prosecution’s case and determine if they should stand trial.

Moses Obeid outside the Supreme Court earlier this year.
Moses Obeid outside the Supreme Court earlier this year. Photo: Daniel Munoz

Appeal, anyone?

Obeid’s barrister, Guy Reynolds, SC, has leapt to his feet and, as foreshadowed, is already flagging an appeal.

He says there has been a “miscarriage of justice” and they will need to trot off to the Court of Criminal Appeal.

“The prospects of Mr Obeid succeeding … on appeal are extremely high,” Reynolds says.

Back to top

Jail only appropriate penalty

Obeid will go to jail, Justice Beech-Jones says.

“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,” he says.

“Mr Obeid, will you please stand up.”

Five years

Justice Beech-Jones has sentenced Obeid to a maximum of 5 years in jail, with a three-year non parole period.

‘Not an opinion poll’

This is it. “Conclusion,” Justice Beech-Jones says clearly.

He says sentencing is not conducted via “opinion polls”.

“If Mr Obeid had not willfully 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.”

Life expectancy

And we are inching closer. Justice Beech-Jones says a jail sentence should not be reduced because it would consume “most of an offender’s remaining life expectancy”.

Medical conditions

The court hears Obeid suffers from a litany of medical conditions. He had a stroke earlier this year, has had type two diabetes “for years”, has high blood pressure and colonic polyps.

He also tripped on a coffee table earlier this year and was taken to hospital.

However, the conditions are “stable and controlled”, according to medical evidence.

But expert evidence tendered by Obeid’s legal team says it is “unlikely that … Obeid would receive appropriate medical treatment in custody if he was incarcerated”.

Justice Beech-Jones says he accepts Obeid would receive “a superior level of care in the community” but he is satisfied “he would receive an adequate level of care” in jail.

Eddie Obeid outside court this morning.
Eddie Obeid outside court this morning. Photo: Daniel Munoz

Back to top

All in the family

Justice Beech-Jones says the evidence suggests the Obeid family is “exceptionally close” and would be hit hard by the jailing of the patriarch.

But he notes it was Obeid’s decision to prioritise the interest of his family above his duty to the public that led to his offending.

A parliamentarian cannot use their position to “afford generosity” to their family or associates, he says.

‘Mitigating factor’

Obeid enlisted 55 character witnesses in his fight to avoid jail. Justice Beech-Jones says they are evidence of “prior good character”, which is a “mitigating factor” in sentencing.

However, he says in cases of corruption the “need for deterrence is particularly strong” and the references will be “afforded less weight”.

‘Deliberate breach of trust’

Justice Beech-Jones is getting closer to delivering those final words: to jail or not to jail.

He says the essence of the offence of misconduct in public office is a “deliberate breach of trust”.

The seniority of the public official is relevant, along with the nature of the breach.

The Supreme Court judge is surveying relevant cases, and says they demonstrate the “onerous duty” imposed upon parliamentarians and ministers.

Eddie Obeid outside court this morning.
Eddie Obeid outside court this morning. Photo: Daniel Munoz

The penalty

Now we’re getting down to it. Justice Beech-Jones is setting out the principles for sentencing Eddie Obeid.

In NSW the offence of misconduct in public office is not codified in an act of Parliament – it is simply part of the common law (law made by judges).

That means the maximum penalty has not been set out in legislation and is technically “at large”, meaning life.

But in other states, where the offence has been codified, the maximum penalty is about seven years. This is relevant but the court is not “limited” by that, Justice Beech-Jones says.

He says there is “no difference in substance” between a politician receiving a bribe to advance someone else’s interest and using their position to line their own pockets.

‘Makes no difference’

It makes no difference to Obeid’s criminality whether he was acting to advance his own financial interests or those of his family, Justice Beech-Jones said


Eddie Obeid: The rise, reign and recession of NSW’s most notorious political powerbroker

Analysis

12.20pm 15/12/2016

The sentencing of former Labor powerbroker Eddie Obeid is a day of reckoning for a man who once wielded his influence to build and destroy the careers of premiers and MPs in New South Wales.

Key points:

  • Eddie Obeid was renowned as a fearsome Labor kingmaker
  • His business and political empires became entwined
  • An ICAC finding of corruption lead to his prosecution

Obeid has been sentenced to five years’ jail, with a minimum of three years, for misconduct in a public office in relation to his family’s secret business dealings at Circular Quay.

Edward Moses Obeid was born in a village in northern Lebanon in 1943, and after moving to Australia as a child, worked as a cab driver and at local Arabic-language newspaper El Telegraph.

Within a few years he was running that newspaper, and was recruited by Labor powerbroker Graham Richardson to join the party in 1972.

ABC investigative journalist Marion Wilkinson’s book The Fixer describes how Obeid was soon providing invaluable advice to Richardson on how to politically organise ethnic communities.

It was Mr Richardson who gave Obeid the necessary backing to see him elected to the NSW Upper House in 1991, and he rose through the ranks to become the minister for fisheries and mineral resources from 1999 to 2003.

But it was his creation and control of the so-called Terrigals sub-faction of the Labor Right that would go on to dominate NSW Labor for the better part of two decades.

One king to rule them all

The sub-faction was formed, with Obeid its undisputed king, at a now infamous meeting at his beach house in Terrigal in 1992.

It went on to use its numbers relentlessly to fundraise, control pre-selections, guide policy and elevate chosen MPs to the frontbench.

At the height of its powers, the Terrigals sub-faction was instrumental in installing and removing a series of premiers — namely Morris Iemma, Nathan Rees and Kristina Keneally.

Mr Iemma has said his premiership became “untenable” because he could not convince the Terrigals to approve his preferred ministerial reshuffle.

Mr Rees was rolled after standing up to the sub-faction by sacking Ian Macdonald and Joe Tripodi from the ministry.

Just before he was knifed, Mr Rees famously said: “should I not be Premier by the end of the day, let there be no doubt in the community’s mind, no doubt, that any challenger will be a puppet of Eddie Obeid and Joe Tripodi.”

How the empire unravelled

But Obeid’s influence was broader than the parliamentary caucus.

His diary entries from 2007 to 2009, tendered to Independent Commission Against Corruption (ICAC) hearings, show a revolving door of developers, union bosses and business figures queuing up to seek appointments with him.

With a string of business and property interests in both Australia and Lebanon, Obeid was already wealthy when he entered Parliament and he continued to build both his financial and political empires while an MP.

And it was the mixing of his political and business ties which eventually led to him being convicted on June 28 this year of misconduct in a public office.

Obeid was found to have lobbied the then-deputy chief executive of the State Maritime Authority, Steve Dunn, over Circular Quay leases — without revealing that his family secretly owned a series of harbourside cafes in the Quay.

The Crown said Obeid knew Mr Dunn from when he had been fisheries minister, and argued that he misused his position as an Upper House MP to “dupe” Mr Dunn into believing he was acting on behalf of constituents.

The court found he was in fact trying to stop a competitive tender process for the leases to financially benefit his own family.

Prosecution not to be scoffed at

The prosecution stemmed from a corrupt conduct finding by the ICAC.

In his findings in the ICAC inquiry into the Circular Quay leases, assistant commissioner Anthony Whealy described the former MP’s actions as demonstrating “the moral vacuum at the core of his political being”.

When the ICAC first handed down its finding, Obeid scoffed that he believed there was “less than a one per cent chance” that he would be prosecuted as a result.

Even when charged, he still said he had “no concerns whatsoever” and was “very confident” he would not be convicted because he was innocent.

The court found otherwise.

Labor has done its best to exorcise itself of Obeid, ending his influence and calling for the courts to throw the full force of the law at him.

But no matter how hard it may try, Obeid’s fingerprints will forever remain all over a chapter of its political history in NSW.

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R v Obeid Judgement Dec 15 2016


austlii.edu.au

R v Obeid (No 12) [2016] NSWSC 1815 (15 December 2016)

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Last Updated: 15 December 2016

Supreme Court

New South Wales

JUDGMENT

  1. 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.
  2. 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.
  3. 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.
  4. In DPP v Marks [2005] VSCA 277 at [35], Nettle JA (as his Honour then was) identified the object of the offence of wilful misconduct in public office as ensuring a public official does not “abuse intentionally the trust reposed in him” or her. In this case, the essence of the criminality alleged against Mr Obeid was that he intentionally abused the public trust reposed in him as a Member of the Legislative Council of New South Wales by using his position to make representations to a senior officer of the Maritime Authority of NSW, Mr Stephen Dunn, to advance the financial interests of himself or at least his family
  5. Now that Mr Obeid has been convicted, the Crown contends that no sentence other than full time imprisonment should be imposed. On behalf of Mr Obeid it is contended that the Court can and should impose a sentence that falls short of that sanction, especially when regard is had to his personal circumstances including his age, ill health and prior good conduct.
  6. To address these submissions and determine the appropriate sentence it is first necessary to set out the background to the commission of the offence by Mr Obeid, describe the conduct he engaged in, determine what the jury necessarily found by its verdict, identify the relevant principles that apply to the sentencing exercise and outline the subjective case put forward on Mr Obeid’s behalf.

Background

  1. To the extent that the following description of the background to the offence refers to established facts, they were either agreed at the trial or at least not in issue.
  2. Mr Obeid was elected to the Legislative Council in 1991.[3] He retired from Parliament in 2011.[4] From April 1999 to April 2003 he was the Minister for Fisheries.[5]
  3. In the period leading up to the Sydney Olympics, the public body responsible for wharves 1 to 5 at Circular Quay, being the Waterways Authority, entered into new leases for the businesses situated on those wharves. The term of each lease was approximately five years and they were all due to expire on or about 31 August 2005. They did not include options for renewal.[6]
  4. During 2005, the Waterways Authority was renamed the “NSW Maritime Authority” (the “Maritime Authority”).[7] At all relevant times, Ministerial responsibility for the Waterways Authority, and then the Maritime Authority, rested with the Minister for Ports and Waterways. Until August 2005, Michael Costa was the responsible Minister. From August 2005 to February 2006, Eric Roozendaal was the Minister. From February 2006 until November 2009, Joseph Tripodi was the Minister for Ports and Waterways.[8]
  5. In or about late 2002, Circular Quay Restaurants Pty Ltd (“CQR”) purchased two businesses operating under leases at the Circular Quay wharves, namely the Café Sorrentino on Wharf 4 and the Quay Eatery on Wharf 5, for $1 million each.[9] It also purchased another business in the vicinity of the wharves known as the Arc Cafe[10] for $400,000.00,[11] however it need not be mentioned further.
  6. CQR took assignments of the leases for Café Sorrentino and Quay Eatery on the same terms and conditions as the existing tenants, including the expiry date in August 2005.[12] Mr Obeid’s brotherinlaw, Mr John Abood, was the sole Director and shareholder of CQR. It was an agreed fact that “via a series of trusts 90% of the interest in the business[es] flowed to the Obeid Family Trust No. 2”.[13] This was a discretionary trust, the potential beneficiaries of which were members of the Obeid family, including Mr Obeid and his wife, Judith.[14] Further, there was evidence at the trial that $1.398 million of the funds for the purchase of the businesses came from a mortgage of the home that Mr Obeid and his wife resided in and which his wife owned. A ledger entry from the family business records that, six days prior to the purchase of the businesses, $3.4 million was received from that mortgage of which $1.398 million was distributed to CQR and just over $1.557 million was distributed to, or at least on behalf of, Mr Obeid.[15]
  7. Although Mr Abood was the Director and shareholder of CQR, the acquisition of the businesses and its financing was arranged by Mr Obeid’s sons, principally Damien Obeid.[16] Mr Abood managed the businesses on a daytoday basis.[17] For that he was paid a salary and provided with a motor vehicle.[18] Damien Obeid was responsible for the collection of the cash takings of the businesses and payment of its invoices.[19] Damien Obeid arranged for the cash takings to be delivered to Sam Achie, the financial controller, and Paul Maroon, a bookkeeper. They both worked at the offices of Obeid Corporation at Birkenhead Point.[20]
  8. In his evidence, Damien Obeid denied that from the time his father entered Parliament he played any role in the family businesses or that he discussed the family businesses with his father.[21] He specifically denied discussing with his father “anything at all about how the businesses [at Circular Quay] were going, what the lease problems were, or anything like that”.[22] However, Damien Obeid understood that his father was aware that he and his brothers had invested in the businesses at Circular Quay.[23]
  9. Damien Obeid said that, shortly after the businesses were acquired, he requested that Paul Maroon set aside approximately $1000 to $1200 per week from the cash takings of CQR for delivery to Judith Obeid.[24] Damien Obeid stated that this was merely a continuation of an arrangement for the provision of cash to her from one family business or another which was always accounted for as a payment by Obeid Corporation.[25]
  10. There was also evidence capable of suggesting that Mr Obeid received his own cash payments from CQR’s takings from sometime in 2007. Tendered at the trial were a series of spreadsheets prepared by Mr Maroon.[26] The spreadsheets each had a file name referable to a particular date or week in the period August 2007 to October 2011. The spreadsheets included entries referable to the distribution of CQR’s cash takings. The entries in the spreadsheets juxtaposed amounts of cash with references to Judith Obeid, Mr Obeid or both of them. On their face, those spreadsheets suggested that regular cash payments were made to Mr Obeid over and above the amounts paid to Judith Obeid. In addition, there were other electronic documents prepared by Mr Maroon which contained references to payments to “mum and dad”[27] or “EO and JO”.[28]
  11. Mr Maroon’s oral evidence had its difficulties in that his memory has been significantly affected by medication he takes for epilepsy.[29] As a consequence, the jury was instructed that it should exercise caution in determining whether to accept his evidence and attach weight to it.[30] Mr Maroon said that the entries in the spreadsheets reflected instructions he received that were recorded on approximately the same day they were given to him, “usually” by Damien Obeid.[31] He said the spreadsheet entries recorded instructions to prepare envelopes with an amount of cash in them which he provided to Damien Obeid or one of his brothers.[32] Sometimes the envelope was marked up to reflect the instruction.[33] However, Mr Maroon agreed that he did not remember the circumstances of any particular entry,[34] that he never saw what happened to the envelopes of cash he gave to Damien Obeid,[35] and that he never saw Mr Obeid Senior receive any cash from CQR’s businesses.[36] Mr Maroon accepted that it was “possible” that the references to “mum and dad” in his spreadsheets could have been a reference “to the household expenses of the Obeid family”.[37]
  12. Mr Damien Obeid repeatedly denied asking Mr Maroon to set aside money for his father out of CQR’s takings or ever instructing Mr Maroon to write “Dad” on any envelope or that ever he provided any money to his father.[38] He stated that, while he and his family were living with his parents from 2006 to the “end of 2008 or perhaps even early 2009”,[39] there was an increase in the amount of cash payments of “up to $2000” per week.[40] This appears to roughly correspond with the total of the amounts referred to in the spreadsheets listed against Mr Obeid and his wife in that period.
  13. For each of the lessees of the businesses at the wharves, the insecurity of their tenure was a cause of considerable concern. This was particularly the case for CQR in that, if the leases were not renewed, then it was likely that the funds outlayed to purchase the businesses would not be recovered.
  14. In August 2004, five representatives of the lessees at the wharves wrote to the Sydney Harbour Foreshore Authority (“SHFA”) which was managing the properties for the Maritime Authority, expressing their concern about the security of their tenure and seeking a response to their request to renew their leases.[41] Mr Abood was one of the signatories to the letter. On 2 September 2004, SHFA responded stating that all lease agreements would be offered for competitive tender upon their expiry and that the tendering process would commence “early in the new year.”[42]
  15. Mr Abood said that around this time he had meetings with other tenants about the issue. Damien Obeid recommended they speak to his cousin, Dennis Jabour, who had experience in property management. Mr Jabour in turn suggested they retain Mr Paul Scanlan, a professional negotiator with legal qualifications and experience in retail tenancies. Ultimately, Mr Scanlan was retained to act on behalf of three separate tenants, including CQR.[43] Mr Scanlan was instructed to lobby the Maritime Authority on their behalf[44] in order to achieve either a renewal of their leases or at least agreement to direct negotiations over lease renewals.[45]
  16. From late 2004 to early 2008, Mr Scanlan did as he was instructed. He wrote a number of letters on behalf of the lessees to SHFA and the Maritime Authority. He made numerous telephone calls and attended many meetings with Maritime Authority staff. In July 2006 he secured a meeting with Minister Tripodi. Throughout this time Mr Scanlan emphasised the unfairness to the lessees in requiring them to compete in an open tender and that doing so was detrimental for the Maritime Authority in that it meant that the tenants were reluctant to invest in the upkeep of their premises.
  17. Despite his efforts, until the middle of 2007 Mr Scanlan was unsuccessful in obtaining any change in the Maritime Authority’s position. However, even though by early 2005 preparations for an open tender process were well advanced, the Maritime Authority did not proceed to competitive tender for the leases. Instead the leases were extended for six months from August 2005 and thereafter they became monthtomonth tenancies.[46] A ten per cent increase in rent was applied during the holding over period.[47]
  18. The former Chief Executive Officer of the Maritime Authority, Christopher Oxenbould, explained that this delay was the result of internal government disagreements concerning the Maritime Authority’s commercial leasing policy (the “CLP”) and its approach to the Circular Quay precinct. There were differing views within the Maritime Authority and between the differing Ministers from time to time as to whether the CLP should provide that, upon the expiry of a lease of Maritime Authority property, a new lease should be the subject of a market based tender on the one hand or existing tenants should be allowed the opportunity to first negotiate a renewed lease on the other. In relation to Circular Quay, Mr Oxenbould stated that within the Maritime Property division of the Maritime Authority there was a “very strong belief” that the process of renewal for the Circular Quay leases was a special case compared with those addressed in the proposed CLP and should only be renewed by a process of competitive tender.[48]
  19. Mr Oxenbould stated that around mid-2007, the fate of the proposed CLP and the Circular Quay leases became linked.[49] It was around this time that Mr Obeid made the “representations” the subject of the charge against him which I will now describe.

The Representations

  1. 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]
  2. 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]
  3. 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]
  4. 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]
  5. 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]
  6. 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]
  7. 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]
  8. 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

  1. 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).
  2. 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.
  3. 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]
  4. 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.
  5. 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]
  6. 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]
  7. 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]
  8. 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.
  9. 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.
  10. 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.
  11. 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[91]t follows from its verdict that the jury was satisfied of that matter.
  12. 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.
  13. 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.
  14. 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]
  15. 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]
  16. 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]
  17. 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.
  18. 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.
  19. 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.
  20. 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]).
  21. 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.
  22. 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]
  23. 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.
  24. 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.
  25. 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]
  26. 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

  1. 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.
  2. 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)).
  3. 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]).
  4. 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] NSWStRp 19; (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]).
  5. 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]).
  6. 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.
  7. 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.
  8. 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.
  9. 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).
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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 nonparole 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 nonparole 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]).
  15. In Jansen a police officer who pleaded guilty to accessing police intelligence and other sensitive information and disseminating it was sentenced to a nonparole 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]).
  16. 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 nonparole period of nine months (at [5]).
  17. 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]).
  18. 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]).
  19. The written submissions filed on behalf 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.
  20. 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] SASC 5674; 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.
  21. 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 nonparole 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 resentenced to imprisonment for a term of seven years, which ran concurrently with terms of imprisonment imposed for perjury offences.
  22. 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.
  23. 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.
  24. First, with the exception of Rouse, all these cases emphasise the onerous duty imposed on either parliamentarians or Ministers and the strictness 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).
  25. 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).
  26. 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] 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).
  27. 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).
  28. All of these propositions are apposite to Mr Obeid’s case.
  29. 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.
  30. 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

  1. 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.
  2. 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]
  3. 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]
  4. 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]
  5. 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] NSWSC 315; (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

  1. 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.
  2. 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.
  3. 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

  1. 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 selfevidently a topic of legitimate public debate.
  2. 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]).
  3. 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.
  4. 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] HCA 21; (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]).
  5. 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).
  6. 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.
  7. 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

  1. 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 longacting 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 GuillainBarre 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]
  2. 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]
  3. 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]
  4. 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]
  5. 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]
  6. 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.
  7. 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 24hour 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]
  8. 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]
  9. 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”.
  10. 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.
  11. 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.
  12. 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.
  13. 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]).
  14. 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]).
  15. 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] HCA 39; (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”)).
  16. 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]).
  17. 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

  1. 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.
  2. 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.
  3. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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” (subs (ii)). Mr Obeid has done neither.
  7. 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)).
  8. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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)).
  5. 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.
  6. 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 nonparole period referred to in s 44(2) of the Sentencing Act.
  7. 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.
  8. 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.
  9. 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.

**********


[1] [1951] HCA 5; 83 CLR 1 (the “Communist Party Case”)
[2] At p 187
[3] Ex A, p 7 at [1]
[4] Ex 2 on sentence, tab 1 at [20]
[5] Ex A, p 7 at [1]
[6] Ex A, p 7 at [3] to [5]
[7] Ex A, p 127
[8] Ex A, pp 1 to 3
[9] Ex A, pp 37 to 38
[10] T 07/06/16 at 57.5
[11] T 07/07/16 at 101.45
[12] Ex A, pp 85 and 92
[13] Ex A, p 7 at [6]
[14] Ex A, p 7 at [6]
[15] Ex A, pp 24 and 35
[16] T 07/06/2016 at 102.41, 104.29, 109.4 and 110
[17] T 07/06/16 at 108.32
[18] T 07/06/2016 at 108
[19] T 08/06/2016 at 133.42
[20] T 07/06/16 at 100; T 08/06/16 at 133.11
[21] T 07/06/16 at 111
[22] T 08/06/16 at 139.21
[23] T 07/06/16 at 114.44
[24] T 08/06/16 at 134 to 135, esp 135.15
[25] T 08/06/16 at 134.40
[26] Ex C
[27] Ex A, pp 46a and 46c; Ex D
[28] Ex A, pp 48a and 48d
[29] T 14/06/16 at 360
[30] Summing up (“SU”), p 14
[31] T 15/06/16 at 432.49
[32] T 14/06/16 at 368.31 and 372
[33] T 14/06/16 at 373.15
[34] T 15/06/16 at 428.7
[35] T 14/06/16 at 372.47
[36] T 15/06/16 at 426.1
[37] T 15/06/16 at 427.40
[38] T 08/06/16 at 136.6 to 137
[39] T 08/06/16 at 139.37
[40] T 08/06/16 at 152:21
[41] Ex A, p 99
[42] Ex A, p 100
[43] T 15/06/16 at 439
[44] Ex A, p 104
[45] Ex A, pp 206 to 207
[46] T 15/06/16 at 449.20
[47] T 15/06/16 at 449.41
[48] T 09/6/2016 at 202.47 and 249.30
[49] T 09/06/16 at 254.38
[50] T 16/06/16 at 524.21
[51] T 16/06/16 at 529.37
[52] Ex A, p 223 and 249
[53] Ex A, p 240, clause 4.5
[54] Ex A, p 250
[55] Ex A, p 251
[56] T 17/06/16 at 574.13 and 574.39
[57] T 17/06/16 at 575.31
[58] T 17/06/16 at 575.20
[59] T 17/06/16 at 582
[60] T 17/06/16 at 583.25
[61] T 17/06/16 at 583.34
[62] T 20/06/16 at 627.15
[63] T 20/06/16 at 631 to 632
[64] T 17/06/16 at 583
[65] T 17/06/16 at 583.50
[66] Ex A, pp 15 to 17
[67] Ex A, p 10 at [40]; T 17/06/16 at 618.1
[68] T 17/06/16 at 594.13
[69] T 17/06/16 at 601.36
[70] T 17/06/16 at 617.29
[71] Ex A, p 9
[72] T 17/06/16 at 552.16
[73] T 17/06/16 at 599.28
[74] T 16/06/16 at 533.30
[75] T 17/06/16 at 616.33
[76] T 16/06/16 at 533.31; T 16/06/16 at 536.21; T 17/06/16 at 616.35
[77] Ex A, p 262
[78] Ex A, p 265, clause 4.5
[79] Ex A, p 261
[80] Ex A, pp 268 and 274
[81] Ex A, p 290
[82] Ex A, p 295
[83] T 08/06/16 at 129.40 and 168.27
[84] T 21/06/2016 at 711.44
[85] MFI 16
[86] SU, p 19
[87] SU, p 21
[88] SU, pp 25 to 26; MFI 16
[89] T 06/06/16 at 2
[90] SU, pp 26 to 27
[91] SU, p 41
[92] T 21/06/16 at 719.10
[93] T 20/06/16 at 651.5
[94] Ex A, p 8 at [15]
[95] see SU, p 60
[96] Defence Outline of Submissions on Sentence at [19] and [73]
[97] SU, p 62
[98] SU, p 61
[99] SU, p 61
[100] MFI 16; SU, p 63
[101] SU, p 64
[102] SU, p 65
[103] SU, pp 26 and 67
[104] SU, p 72
[105] SU, p 72
[106] T 20/06/16 at 629.4
[107] T 20/06/16 at 631 to 632
[108] T 20/06/16 at 633.37 to 41
[109] T 20/06/16 at 632 to 633
[110] Defence Outline of Submissions on Sentence at [61]
[111] Defence Outline of Submissions on Sentence at [24]
[112] Defence Outline of Submissions on Sentence at [65]
[113] Defence Outline of Submissions on Sentence at [13] to [15]
[114] T 17/06/16 at 584.42
[115] T 17/06/16 at 585.13
[116] Ex 2 on sentence, tab 1
[117] Ex 2 on sentence, tab 1 at [7]
[118] Independent Commission Against Corruption Act 1988 (NSW) and the Police Integrity Commission Act 1996.
[119] Defence Outline of Submissions on Sentence at [13]
[120] Ex 2 on sentence, tab 1 at [13]
[121] Ex 2 on sentence, tab 1 at [16]
[122] Ex 2 on sentence, tab 1 at [18]
[123] Ex 2 on sentence, tab 1 at [19]
[124] Ex 2 on sentence, tab 28
[125] Ex 2 on sentence, tabs 17 and 22
[126] Ex 2 on sentence, tabs 27 and 37
[127] Ex 2 on sentence, tab 16
[128] Ex 2 on sentence, tab 42
[129] Ex 2 on sentence, tab 47
[130] Ex 2 on sentence, tabs 11, 18, 23, 39
[131] Ex 2 on sentence, tabs 11, 13 and 48
[132] Ex 2 on sentence, tab 19
[133] Ex 2 on sentence, tab 9
[134] Ex 2 on sentence, tabs 31, 49, 50 and 52
[135] Ex 2 on sentence, tabs 20 and 36
[136] Ex 2 on sentence, tabs 30, 35, 37, 38, 40, 43, 44, 45, 46 and 51
[137] Ex 2 on sentence, tabs 8, 10 and 26
[138] Ex 2 on sentence, tab 14
[139] Ex 2 on sentence, tabs 24, 33 and 29
[140] Ex 2 on sentence, tabs 34 and 21
[141] Ex 2 on sentence, tab 8
[142] Ex 2 on sentence, tab 1 at [33]
[143] Ex 2 on sentence, tab 1 at [32]
[144] Defence Outline of Submissions on Sentence at [92ff]
[145] Ex 1 on sentence
[146] Ex 1 on sentence, pp 223 to 225, 511 and 609
[147] Ex 1 on sentence, p 166
[148] Ex 1 on sentence, p 134
[149] Ex 1 on sentence, p 176
[150] At [31]
[151] Ex A on sentence, tab 1, p 5; Ex 2 on sentence, tab 4
[152] Ex 2 on sentence, tab 6
[153] Ex 2 on sentence, tab 6
[154] Ex A on sentence, tab 1, at 10; Ex 2, tab 5
[155] Ex A on sentence, tab 1, p 10
[156] Ex A on sentence, tab 7
[157] Ex 2 on sentence, tab 3
[158] Ex 2 on sentence, tab 2, p 6.10
[159] Ex 2 on sentence, tab 2, p 17.2
[160] Ex 2 on sentence, tab 2, p 18.1
[161] Ex A on sentence, tab 1, pp 7 and 9
[162] Ex A on sentence, tab 1, p 9.5
[163] Ex A on sentence, tab 1, p 10.8
[164] Ex 2 on sentence, tab 2, p 19.9
[165] Ex A on sentence at tabs 2 to 6
[166] Ex A on sentence at tab 6
[167] Ex A on sentence at tab 4
[168] Ex 2 at tab 2, p 19.6
[169] Ex A at tab 2, p 12
[170] T 01/12/2016 at 11.35
[171] At [56]
[172] Ex 2 on sentence, tab 2, p 18.10
[173] Ex A on sentence, tab 2, p 12.5
[174] Ex 2 on sentence, tab 2, p 19.1
[175] Ex A on sentence, tab 2, p 13
[176] Crown Submissions on Sentence at [39]
[177] Defence Outline of Submissions on Sentence at [111]


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URL: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2016/1815.html

Who wants to be a unpaid crime blog reporter/contributer?


Not real journo’s who still have a job, maybe cadets (but not good for resume…mmm)

Maybe old school scribes who wish they could stay in the game!

How about folks like me with no relevant qualifications but gives a toss about the crimes in their communities?

The pay-off is a verdict like today GBC cowardly wife killer.

People like me? You relate to how I write?

Hey cant spell well, 2 finger typer…So am I YES…Our stuff gets checked before we post.

Sounds like you?

GOOD keep reading

This site has had massive coverage lately (I cover non famous crimes too)

I’m thinking along the lines of a Co-ordinator in each state

That co-ordinator runs that states crimes and has authors who get the stories up.

What do you think?

Sound good, bad, troublesome, confusing?

All I want is to give the best coverage of what is going on in our communities.

The community expectations has/have?  outgrown my skills honestly…

Each state, minimum deserves better coverage. The good people email me why haven’t you covered this rape, or that kidnapping, or the death of a cousin in my indigenous community.

You could help us!

GBC Trial Day 19.5 (the weekend)


Something to get the chat going for the weekend

 

Baden-Clay murder trial: Large crowds in court evidence of a healthy legal system, top barrister says

11/07/14

Gerard Baden-Clay
The murder trial of Gerard Baden-Clay has seen a ticketing system introduced to prevent overcrowding

The high level of public interest in the Gerard Baden-Clay trial is nothing out of the ordinary, and in fact makes for a healthy legal system, a top barrister says.

The former real estate agent’s murder trial attracted crowds to the Brisbane Supreme Court, with extra courtrooms opened for people who queued day after day to gain entry, and a ticketing system introduced to prevent overcrowding.

The Department of Justice and Attorney-General says these special arrangements for large-scale trials are made to ensure openness and transparency in the justice system.

This transparency is key to keeping Australia’s legal apparatus – everyone from police to barristers and judges – held to account, says Ken Fleming, QC.

Mr Fleming was the defence barrister for former Bundaberg surgeon Jayant Patel and has worked as a United Nations prosecutor on international war crimes trials.

“Everyone should be held accountable for what they’re doing, and the open scrutiny of it is a very important thing,” he said.

“You just can’t have things going on behind closed doors, because that engenders fear of the unknown.”

Mr Fleming says the “whole delivery of justice” depends on high levels of public interest, because people can see and understand the process.

Seeing mystery unravel part of appeal, barrister says

The courts are not, however, in danger of turning into another form of entertainment – rather, they always have been.

“You only have to think about the French Revolution and the guillotining in the forecourt of the Notre Dame,” Mr Fleming said.

Although some people may attend just to see a mystery unravel, he believes many also have a genuine interest in watching the ins and outs of the legal process.

There might be some prurient interest as well, but I think that’s not the major reason people are there.

Ken Fleming, QC

“You only have to look at some of the British television programs to see how we love a good murder mystery,” he said.

“There might be some prurient interest as well, but I think that’s not the major reason people are there.

“They just have a genuine interest in what’s going on.”

Glen Cranny, a defence lawyer and partner at Gilshenan and Luton Lawyers, also believes a high level of public interest is healthy for the criminal justice system generally.

“People might come for any number of reasons, and some might come for mawkish reasons,” he said.

“Nevertheless, I think the benefits of having an open and transparent system … far outweigh any perverse interest some people may get out of such proceedings.”

Public pressure witnesses face may discourage some: lawyer

Publicity and public interest in a case can also encourage other complainants or witnesses to come forward and give evidence, where they may have otherwise been unaware or not confident enough.

Rolf Harris‘s case in England, for example, involved people who were coming forward as complainants once they, I think, had the courage that there were protections and systems in place for their story to be told,” Mr Cranny said.

But this benefit has a flip-side: that very publicity could make people apprehensive about revealing their story.

“I think there is a tipping point where some people might think they could do without their face or name being splashed on TV as a witness, or as a complainant,” Mr Cranny said.

“They would be happy to be involved in the process in a low-key way, but don’t want to be engaged … in anything that might in some way feel like a circus to them.”

Reputational issues should also be factored in, especially when a person’s conduct, while lawful, may not hold them in a good light.

“We’ve seen in a recent high-profile case … a lot of focus on extra-marital affairs and so on,” Mr Cranny said.

“There are people who are involved in those relationships, who haven’t broken the law, but have become very prominent just through their personal lives.”

Mr Fleming says that while public interest could make some people “a bit reluctant”, he had not seen any evidence of public attendance impacting on witnesses.

“It is on display and in a sense it’s theatre,” he said.

“But once people are resigned to the fact that they will be giving evidence, I don’t think too much stands in their way.”

Opening additional courtrooms and keeping the public away from “where the action is happening” also means witnesses are only faced with a very small and confined audience in the main court, Mr Fleming said.

All previous threads and history including trial can be found clicking on link below https://aussiecriminals.com.au/category/gerard-baden-clay/

List of Trial Witnesses as they appear here

ANY EVIDENCE LIKE PHOTOS, VIDEO OR DOCUMENTS THE COURT RELEASES TO THE PUBLIC WILL BE PUBLISHED in the GBC Documents Page

Brisbane Supreme Court Justice John Byrne has asked a jury to retire to consider a verdict in the trial of Gerard Baden-Clay.

Troy Buswell sideswipes ‘wedding crash’ charges — fined $3100, banned for 12 months


Does NOT turn up to court, refuses to offer a public explanation and continues to reap thousands of dollars a week in wages. Way to go dick-head NOT A WORD ABOUT BEING PISSED AND DRINK DRIVING AS WE ALL KNOW YOU WERE

Lets dare to consider a mere mortal in the same position, grabbed by the cops on the night after crashing into multiple cars, breathalysed and court the next day to rightly face public and professional embarrassment.

BUT not this bloke, the politician with disgusting form.

This piss-head who I have highlighted before for his FOUL behaviour, pissed antics, inside and outside of parliamentary buildings seems to glide on by because he suddenly has mental health Issues that other 99.99% of the community never seems to get away with. Whether they had been pissing it up up a colleagues wedding or no.

Troy Buswell, former WA premier, agrees to pay for ministerial car damage

25/07/14 update

Former WA treasurer Troy Buswell has agreed to pay for the damage he caused to his ministerial car and several other cars when he drove home from a wedding in February.

The State Government’s insurer RiskCover issued a statement on Friday night, saying Mr Buswell had withdrawn his claim for insurance cover and would pay for the damage himself.

This includes reimbursing RiskCover for the $15,000 it already paid for repairs to his ministerial car.

RiskCover said it received a reply from Mr Buswell’s lawyers on Friday after requesting further information relating to the crash.

“The response stated that Mr Buswell withdraws his claim for insurance cover from RiskCover under the Department of the Premier and Cabinet insurance policy,” it said in the statement.

“Mr Buswell will, from his own funds, pay for any damage caused to the third party vehicles when the Government vehicle he was driving on 22/23 February 2014 collided with them.

“Mr Buswell will pay RiskCover the amount it paid to repair the damage caused to the Government vehicle.”

In February, the then-treasurer smashed into several parked cars in Subiaco while driving home from a wedding.

The owner of one of those cars last week told a media outlet she was offered $3,000 by RiskCover on the proviso she had no contact with the media.

The letter of offer also reportedly stated that she agree to not commence any legal action against Mr Buswell.

In the wake of the crash Mr Buswell relinquished both his Treasury and Transport portfolios, and was fined and suspended from driving for a year

UPDATE 30/04/14

Troy Buswell crashes: police release audio of emergency call on night of dangerous driving

Police have released a recording of a call to police made on the night former WA treasurer Troy Buswell left a trail of destruction after crashing his ministerial car in Perth.

In the recording, the unidentified male caller describes seeing Buswell “swerving all over Roberts Road” in Subiaco, then “struggling to stand up” when he gets out of his car.

“The bloke was dolled up to the nines and he clearly couldn’t stand on his own two feet,” the caller tells police.

“He was driving all over the place on Roberts Road.

“He was taking up two lanes, nearly hitting everything on the side as well.

“When we pulled up behind him out the front of his premises, his whole front bumper was hanging off, the whole front end looked like it had been pretty smashed up.”

On Tuesday, Buswell pleaded guilty in a Perth court to 11 traffic offences committed in the early hours of February 23.

He was fined $3,100 and disqualified from driving for 12 months.

However, because none of the offences carry a jail term, he cannot be disqualified from Parliament.

The triple-0 caller did not know it was Buswell when he made the call, but told police he and his passenger “actually joked between ourselves, we thought it looked like Troy Buswell”.

He said Buswell got out of his car when he reached his home, but had to try three or four times before finally being able to unlock his front gate.

After getting back into the car, Buswell then hit the front gate while trying to drive up the driveway.

“He had his foot on the accelerator, he’s basically rammed into the gate and he’s just sitting there with his foot on the accelerator and the back wheel is spinning, and then he’s realised that he wasn’t going anywhere and he’s reversed up, turned to the right and driven through the gate,” the caller said.

Buswell did not attend court on Tuesday but issued a statement of apology.

“I offer no excuses for my actions, I apologise to those upon whom I have impacted and accept fully the consequences,” the statement said.

After the night in question Buswell had what has been described as a breakdown and resigned from cabinet.

However, details of his driving offences did not emerge until weeks later.

Buswell, the member for Vasse, has been on leave but is due back in Parliament next week.

Lets dare to consider a mere mortal in the same position, grabbed by the cops on the night after crashing into multiple cars, breathalysed and court the next day to rightly face public and professional embarrassment.

BUT not this bloke, the politician with disgusting form.

This piss-head who I have highlighted before for his FOUL behaviour, pissed antics, inside and outside of parliamentary buildings seems to glide on by because he suddenly has mental health Issues that other 99.99% of the community never seems to get away with. Whether they had been pissing it up up a colleagues wedding or no.

Former WA Treasurer Troy Buswell took leave from Parliament battling mental health issues

Former WA Treasurer Troy Buswell has pleaded guilty to 11 traffic charges relating to a late night drive from a Kings Park wedding to his Subiaco home. Source: News Corp Australia

DISGRACED former WA Treasurer Troy Buswell has apologised for his actions after he was fined and banned from driving over a series of driving charges.

Buswell was fined a total of $3100 and banned from driving for 12 months. He did not appear in Perth Magistrates Court today, instead endorsing pleas of guilty to all 11 charges.

The Vasse MP crashed into four cars and a telephone pole in Subiaco as he drove home from the wedding in the early hours of February 23.

After the court case, Buswell released a brief media statement that read: “In relation to events of the morning of Sunday 23 February 2014, I offer no excuses for my actions, apologise to those upon whom I have impacted and accept fully the consequences as determined by the Magistrates Court today.”

The damaged front of Troy Buswell's ministerial car, which was towed away by police from

The damaged front of Troy Buswell’s ministerial car, which was towed away by police from his Subiaco home. Picture: Nine News

Earlier in court, Buswell was fined $800 on four charges of careless driving and $800 on four charges of failing to report an accident.

He was fined $1500 on three charges of failing to stop after an accident.

The court was told on the night, Buswell was driving his white ministerial Holden through Subiaco when he mounted a kerb, damaging the front bumper of his vehicle, then knocked into a telephone pole.

Prosecutor Patrick Cavagin then told the court Buswell crashed into a series of cars, leaving a damage bill in excess of $12,000.

He first swiped a Barina parked on the road, causing $3200 damange to the vehicle.

Buswell then rear-ended a Suzuki Vitara parked on Olive Street, causing it to shunt into the back of a Mitsubishi.

The Suzuki sustained $7337.97 damage and the Mitsubishi $1336.

Further along Olive Street, Buswell then hit a parked Holden Commodore, causing $500 damage.

Chief Magistrate Steven Heath gave Buswell a 25 per cent discount for the early plea of guilty and said he also had no prior record.

However, he also noted no explanation was given for the driving.

Chief Magistrate Heath, in reference to the failing to stop charges, said: “It is an obvious concern because it prevents the owner of the property to be advised of the damage.

“It also prevents the proper investigation of the matters.’’

Buswell reportedly told his local newspaper, the Busselton Dunsborough Times, that he had no plans to return to the Barnett ministry.

“I’m looking forward to having more time to re-engage with the local community,” he said.

“Life as a minister was very busy and the demand on my time across the state was substantial.”

Buswell was charged six weeks after a report of erratic driving was made to police by a member of the public on the night of the wedding.

Police Commissioner Karl O’Callaghan said last month Buswell was unlikely to face drink-driving charges because he was never tested for an alcohol reading.

Buswell took personal leave from February 24. He resigned as treasurer and transport minister on March 9 after details of the incident became public.

He sought treatment in Perth and Sydney for a mental health breakdown, and has yet to return to Parliament.

 

Federal Election – 7th September, 2013


It would be nice to have Free Speech, Rupert Murdoch:

Wait a minute

As quoted on Youtube:

The TV networks appear to be allowing Rupert Murdoch to again manipulate how people think and vote as he allegedly has an agenda.

New technology, the media and criminal trials – Let's talk about it

Here is an interesting article folks that I found that comes at a time when the media and the internet are colliding with the long held protocols of the old school legal system of the last century, who needs to catch up with who I wonder?

Where are we headed with blogs like this? the instant twitter commentary from courtrooms, the insatiable thirst for the information, good bad or ugly. You all know I am a believer of Major Trials being telecast to those who want to and indeed need to watch them. Just like some have an interest in Question Time in Parliament and some do not. make it available, what is there to hide?


Here is an interesting article folks that I found that comes at a time when the media and the internet are colliding with the long-held protocols of the old school legal system of the last century, who needs to catch up with who I wonder?

Where are we headed with blogs like this? the instant twitter commentary from courtrooms, the insatiable thirst for the information, good bad or ugly. You all know I am a believer of  Major Trials being telecast to those who want to and indeed need to watch them. Just like some have an interest in Question Time in Parliament and some do not. make it available, what is there to hide?

By Peter Gregory

July 06 2012

Are we now behind the times?

On an overseas crime website was the personal and criminal history of a man known to the Victorian public.

At the time, he was before the courts on a serious charge. The trial judge had warned jurors not to look up the internet, because they were to return a verdict only on the evidence they saw or heard in the courtroom.

Put simply, the judge’s warning was part of delivering a fair trial. If accused of crime, you are judged by a jury of your peers.

They base their decision on the material presented to them in the courtroom. Almost always, that means no reference to the previous convictions of the person on trial, or neighbourhood gossip about a case, or the wise pronouncements of media commentators.

The legal system’s assumption is that jurors, not being trained as lawyers, will find it harder to put aside prejudicial information. If you were a juror on a rape trial, and learned that the accused person had been convicted (separately) of rape six months earlier, what would you think about this case?

“Guilty,” said one student when this question was posed during a seminar some years ago. That is why jury members are told not to follow media reports, do their own research, or talk to their families about the case. They are also instructed to be wary of social media, like Twitter or Facebook.

“If your family is like mine, everyone will have an expert opinion,” one judge would say at the start of a Supreme Court trial.

“You can blame me. If they ask about the evidence, you can say the judge told you that you are not allowed to discuss it.”

Journalists would get very nervous about their court stories, fearing they might be fined or worse if they revealed information that the courts believed was likely to be prejudicial.

In one case, five media organisations were fined a collective $670,000 after reporting that a man arrested over three New South Wales murders in 1989 had confessed. The reports were likely to interfere with the administration of justice, it was found.

These were simpler times when a big worry for publishers was the potential to mix up the conservative court story written for local audiences with a more comprehensive account prepared for interstate editions.

If the Victorian jury was protected from prejudice, all was well. If a stuff-up occurred, media lawyers were sent to court to apologise.

More than 20 years later, safety and conservatism sound like foreign concepts.

The crime website which featured the Victorian suspect was not the worst by any means. True, its advertisements for criminal-related merchandise, including DVDs, calendars and magazines, was distracting, but his segment was a fairly sober summary of his court appearances, material from interviews and legal debate about his future.

Numerous other websites talk about criminals and killers. Some are moderate and feature court decisions. Others appear to follow the “hang ‘em high” school, practised with or without a trial.

Still wary of the legal process, mainstream media websites monitor or ban comments being made about court-related stories.

Inflammatory remarks can raise difficulties for many institutions which have embraced social media and the internet to engage with the public.

Bond University professor Mark Pearson recently analysed problems with the Queensland Police Facebook site, which was flooded with hard-nosed commentary following a high-profile arrest.
“I fear it will not be long before a savvy defence lawyer seizes the opportunity to use such prejudicial commentary as grounds for appeal, perhaps resulting in a trial being aborted at great public expense or even a verdict quashed,” he told The Australian newspaper.

So, what can the courts do?

Last month, the New South Wales Criminal Court of Appeal allowed a media challenge to court orders that would have forced news websites to remove thousands of archived stories about a conspiracy to murder trial. The Sydney Morning Herald said the court upheld the argument that the orders were futile because “vast swathes of information on the internet are essentially beyond the court’s control”.

“It is something of an irony that the (media organisations)…are, on one view, the only people against whom an order could properly have been made,” the court said in its published judgment.

While NSW law might let prosecuting authorities seek suppression orders over prejudicial material published online by local media, that permission could not validly apply to the world at large.

Suppression orders might cover material on internet sites beyond the control or awareness of local publishers.

Imagine the SMH finding all the international crime websites, and persuading them to take down some of their murder summaries because an Australian prosecutor was worried about them.

A Law Council of Australia committee, of which this writer is a member, outlined some other problems in a submission made to the Federal Government.

The media and communications committee said information could not be effectively censored or removed once it was available online. Material was often republished or cached on other sites. Monitoring archives for past publications would be costly and a significant exercise, and in many cases would have little practical effect, the committee argued.

Removing mainstream material might also bump the relevant information contained on less reputable websites up the search engine list for determined researchers.

“Suppression and non-publication orders that that operate to censor or remove historical reports by mainstream media organisations can lead to (the other) websites being elevated in lists of search results carried out, for instance, on the names of accused persons, and thus perversely increase the risk of prejudice to forthcoming trials,” the committee said.

If censoring the media does not work, the focus returns to juries. Jurors can be fined for looking up the internet during trials, if they decide to ignore judges’ warnings.

On its website, the Judicial College of Victoria has quoted court decisions describing jury members as “robust and responsible”, not “fragile and prone to prejudice”. But it warns that the availability of internet databases posed new problems for protecting jurors from prejudicial information.

Could that mean sequestering the jury – staying at hotels, not at home – for the whole trial, to keep it away from outside influences? Would that happen at all trials, or just the ones that attracted massive media attention?

One of the court decisions suggested keeping juries together during the proceedings would protect the open court principle and avoid prejudice. The accommodation costs in a long hearing, and the associated pressure to avoid mistrials, would be very likely to create their own problems.

What are your thoughts readers?

New technology, the media and criminal trials – Let’s talk about it

Here is an interesting article folks that I found that comes at a time when the media and the internet are colliding with the long held protocols of the old school legal system of the last century, who needs to catch up with who I wonder?

Where are we headed with blogs like this? the instant twitter commentary from courtrooms, the insatiable thirst for the information, good bad or ugly. You all know I am a believer of Major Trials being telecast to those who want to and indeed need to watch them. Just like some have an interest in Question Time in Parliament and some do not. make it available, what is there to hide?


Here is an interesting article folks that I found that comes at a time when the media and the internet are colliding with the long-held protocols of the old school legal system of the last century, who needs to catch up with who I wonder?

Where are we headed with blogs like this? the instant twitter commentary from courtrooms, the insatiable thirst for the information, good bad or ugly. You all know I am a believer of  Major Trials being telecast to those who want to and indeed need to watch them. Just like some have an interest in Question Time in Parliament and some do not. make it available, what is there to hide?

By Peter Gregory

July 06 2012

Are we now behind the times?

On an overseas crime website was the personal and criminal history of a man known to the Victorian public.

At the time, he was before the courts on a serious charge. The trial judge had warned jurors not to look up the internet, because they were to return a verdict only on the evidence they saw or heard in the courtroom.

Put simply, the judge’s warning was part of delivering a fair trial. If accused of crime, you are judged by a jury of your peers.

They base their decision on the material presented to them in the courtroom. Almost always, that means no reference to the previous convictions of the person on trial, or neighbourhood gossip about a case, or the wise pronouncements of media commentators.

The legal system’s assumption is that jurors, not being trained as lawyers, will find it harder to put aside prejudicial information. If you were a juror on a rape trial, and learned that the accused person had been convicted (separately) of rape six months earlier, what would you think about this case?

“Guilty,” said one student when this question was posed during a seminar some years ago. That is why jury members are told not to follow media reports, do their own research, or talk to their families about the case. They are also instructed to be wary of social media, like Twitter or Facebook.

“If your family is like mine, everyone will have an expert opinion,” one judge would say at the start of a Supreme Court trial.

“You can blame me. If they ask about the evidence, you can say the judge told you that you are not allowed to discuss it.”

Journalists would get very nervous about their court stories, fearing they might be fined or worse if they revealed information that the courts believed was likely to be prejudicial.

In one case, five media organisations were fined a collective $670,000 after reporting that a man arrested over three New South Wales murders in 1989 had confessed. The reports were likely to interfere with the administration of justice, it was found.

These were simpler times when a big worry for publishers was the potential to mix up the conservative court story written for local audiences with a more comprehensive account prepared for interstate editions.

If the Victorian jury was protected from prejudice, all was well. If a stuff-up occurred, media lawyers were sent to court to apologise.

More than 20 years later, safety and conservatism sound like foreign concepts.

The crime website which featured the Victorian suspect was not the worst by any means. True, its advertisements for criminal-related merchandise, including DVDs, calendars and magazines, was distracting, but his segment was a fairly sober summary of his court appearances, material from interviews and legal debate about his future.

Numerous other websites talk about criminals and killers. Some are moderate and feature court decisions. Others appear to follow the “hang ‘em high” school, practised with or without a trial.

Still wary of the legal process, mainstream media websites monitor or ban comments being made about court-related stories.

Inflammatory remarks can raise difficulties for many institutions which have embraced social media and the internet to engage with the public.

Bond University professor Mark Pearson recently analysed problems with the Queensland Police Facebook site, which was flooded with hard-nosed commentary following a high-profile arrest.
“I fear it will not be long before a savvy defence lawyer seizes the opportunity to use such prejudicial commentary as grounds for appeal, perhaps resulting in a trial being aborted at great public expense or even a verdict quashed,” he told The Australian newspaper.

So, what can the courts do?

Last month, the New South Wales Criminal Court of Appeal allowed a media challenge to court orders that would have forced news websites to remove thousands of archived stories about a conspiracy to murder trial. The Sydney Morning Herald said the court upheld the argument that the orders were futile because “vast swathes of information on the internet are essentially beyond the court’s control”.

“It is something of an irony that the (media organisations)…are, on one view, the only people against whom an order could properly have been made,” the court said in its published judgment.

While NSW law might let prosecuting authorities seek suppression orders over prejudicial material published online by local media, that permission could not validly apply to the world at large.

Suppression orders might cover material on internet sites beyond the control or awareness of local publishers.

Imagine the SMH finding all the international crime websites, and persuading them to take down some of their murder summaries because an Australian prosecutor was worried about them.

A Law Council of Australia committee, of which this writer is a member, outlined some other problems in a submission made to the Federal Government.

The media and communications committee said information could not be effectively censored or removed once it was available online. Material was often republished or cached on other sites. Monitoring archives for past publications would be costly and a significant exercise, and in many cases would have little practical effect, the committee argued.

Removing mainstream material might also bump the relevant information contained on less reputable websites up the search engine list for determined researchers.

“Suppression and non-publication orders that that operate to censor or remove historical reports by mainstream media organisations can lead to (the other) websites being elevated in lists of search results carried out, for instance, on the names of accused persons, and thus perversely increase the risk of prejudice to forthcoming trials,” the committee said.

If censoring the media does not work, the focus returns to juries. Jurors can be fined for looking up the internet during trials, if they decide to ignore judges’ warnings.

On its website, the Judicial College of Victoria has quoted court decisions describing jury members as “robust and responsible”, not “fragile and prone to prejudice”. But it warns that the availability of internet databases posed new problems for protecting jurors from prejudicial information.

Could that mean sequestering the jury – staying at hotels, not at home – for the whole trial, to keep it away from outside influences? Would that happen at all trials, or just the ones that attracted massive media attention?

One of the court decisions suggested keeping juries together during the proceedings would protect the open court principle and avoid prejudice. The accommodation costs in a long hearing, and the associated pressure to avoid mistrials, would be very likely to create their own problems.

What are your thoughts readers?