Ex-Labor MP's sentence had to be 'stern'
Former NSW minister Ian Macdonald's sentence for misconduct in public office was "stern" but not unreasonable nor plainly unjust, five Court of Criminal Appeal judges have been told.
"This was a Minister of the Crown, the highest level of government, and the head sentence needed to be stern," said Michael McHugh SC, for the Crown, on Thursday.
Macdonald, 69, was jailed for 10 years, with a minimum of seven, in June last year after being found guilty of two counts of wilful misconduct in public office.
He is challenging both his sentence and convictions.
His friend and former union boss John Maitland - who was jailed for six years with a minimum of four - is challenging his convictions for being an accessory to the misconduct.
Macdonald was found to have favoured the interest of Doyles Creek Mining, chaired by Maitland, over the interests of the state when he granted a NSW Hunter Valley mining licence in 2008 without a competitive tender.
Maitland, now 72, made $6 million selling shares in a company that acquired Doyles Creek Mining after the licence was granted.
While conceding there was no evidence that Macdonald was to benefit personally for his misconduct, Mr McHugh rejected the submission that the sentence was "manifestly excessive" and should be reduced.
"One may never know why a criminal acts in the way they do. What we do know here is that Macdonald did so act," he said in his written submissions.
Macdonald's conviction appeal grounds included an argument by his lawyer Phillip Boulten SC that the trial judge misdirected the jury in relation to the "elements" of the misconduct offence.
He said that when people held public office, there needed to be a bright line demarcating sloppy or negligent conduct on one hand and criminal conduct which could lead to prison time on the other.
But Mr McHugh said the bright line was clear - "don't be dishonest".
The court reserved its decision.
Here's our report from the time of Macdonald's sentencing.
His offending against us all through his contempt of the Parliament is of the highest order. Like his theft from the members of the HSU he knew his responsibility, he knew the nature of the offence, he knew the penalties; but he consciously decided to go ahead and do it anyway.
It is deeply troubling that so many parliamentary colleagues knew of Thomson's conduct - yet even the Prime Minister Julia Gillard continued to provide him with unqualified support and glowing character assessments.
The Committee found Thomson guilty of a contempt of the House, the highest category of offence against the Parliament.
The principles which are of particular relevance for offences of wilful misconduct in public office are:
- The duties of Ministers are onerous and departures are to be dealt with strictly
- The real damage is not be measured by material loss to the State or gain to the offender; the real harm is the damage to the institutions of government and public confidence in them
- General deterrence and denunciation are to be given more weight than other sentencing considerations for offences of this nature
- Prior good character is of less weight for offences of this nature.
- The offenders’ conduct damaged the institutions of government and public confidence in them, which resulted in widespread harm to the community.
It tainted the State’s reputation for proper dealing and probity.
It tended to engender public cynicism such as might deter those considering standing for Parliament for fear that their motives will be misunderstood.
Junior public officials might be more inclined to misconduct themselves in the belief that such conduct is normal or accepted.
Conscientious public servants whose duty it is to give independent advice might be hesitant about speaking out, lest their careers be shortened or their prospects of promotion stymied by Ministers who regard an independent public service as an obstruction, rather than an essential part of a working democracy.
Departmental officers might have asked themselves why they should take such care to administer the State’s mineral resources if Mr Macdonald, the man who had the ultimate say as decision-maker, could be so cavalier about his responsibilities and so vain about the exercise of his power.
There are no isolated victims of crimes such as these since the harm was done to the community as a whole. The people of NSW were betrayed by Mr Macdonald.