Macdonald v R (Sentence) [2023] NSWCCA 253

Macdonald v R (Sentence) [2023] NSWCCA 253

The sentence appeal failed because no error was shown in the sentencing judge's treatment of planning, statutory analogues, objective seriousness, or fact finding, and the sentence imposed was not manifestly excessive. The offending involved a Minister of the Crown conspiring to breach duties of confidentiality and impartiality to benefit the Obeid family, causing serious and intangible harm to public trust, and the proposed Commonwealth statutory analogue did not fetter the sentencing discretion.

Jurisdiction
Australia
Judgment Date
06 October 2023
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted with respect to grounds 4 and 5; appeal dismissed with respect to grounds 4 and 5; leave otherwise refused.
Legal Topics
['conspiracy to Commit Misconduct in Public Office' 'common Law Offence With No Maximum Penalty' 'statutory Analogues in Sentencing' 'manifest Excess' 'fact Finding on Sentence' 'objective Seriousness' 'ministerial Misconduct and Public Trust']
['criminal Law' 'sentencing' 'criminal Appeals'] ['conspiracy to Commit Misconduct in Public Office' 'common Law Offence With No Maximum Penalty' 'statutory Analogues in Sentencing' 'manifest Excess' 'fact Finding on Sentence' 'objective Seriousness' 'ministerial Misconduct and Public Trust']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge wrongly treated the absence at the formation of the conspiracy of planning of later acts as an aggravating factor.' 'Whether the sentencing judge erred in her treatment of the proposed statutory analogue offence under s 142.2 of the Criminal Code (Cth).' 'Whether the conclusion that the objective seriousness of the conspiracy was "of the highest order" was open.' 'Whether the sentence of imprisonment for nine years and six months with a non-parole period of five years and three months was manifestly excessive.' 'Whether the sentencing judge mistook facts on sentence by relying on findings not established beyond reasonable doubt.']

Ratio Decidendi

The sentence appeal failed because no error was shown in the sentencing judge's treatment of planning, statutory analogues, objective seriousness, or fact finding, and the sentence imposed was not manifestly excessive. The offending involved a Minister of the Crown conspiring to breach duties of confidentiality and impartiality to benefit the Obeid family, causing serious and intangible harm to public trust, and the proposed Commonwealth statutory analogue did not fetter the sentencing discretion.

Court Disposition

Leave to appeal granted with respect to grounds 4 and 5; appeal dismissed with respect to grounds 4 and 5; leave otherwise refused.

Orders

  • ["Grant leave to appeal with respect to grounds 4 and 5 in the applicant's amended notice of appeal." 'Dismiss the appeal with respect to grounds 4 and 5.' 'Otherwise refuse leave to appeal.']