Supreme Court New South Wales Medium Neutral Citation: R v Obeid (No 10) [2016] NSWSC 1419 Hearing dates: 5 October 2016 Date of orders: 05 October 2016 Decision date: 05 October 2016 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Listing 6 October 2016 vacated. (2) Matter fixed for submissions on sentence on Thursday, 1 December and Friday, 2 December 2016. (3) The Crown and Mr Obeid to file written submission on sentence on or before 5pm Thursday, 17 November 2016. (4) The Crown to serve all evidence on which it proposes to rely, including any medical evidence, by Friday, 4 November 2016. (5) The matter be stood over for further directions at 9:30am on Friday, 18 November 2016. (6) Grant the parties leave to issue subpoenas for any witness to attend at the sentence hearing and give such evidence as needed on Thursday, 1 December 2016. (7) Direct that Justice Health provide an updated report, including one that addresses matters set out in the report of Dr Rosen dated 25 September 2016, if possible by the end of October 2016. Catchwords: CRIME – sentencing hearing – Crown application for adjournment – no question of principle Category: Procedural and other rulings Parties: Regina (Crown) Edward Moses Obeid (Offender) Representation: Counsel: P Neil SC (Crown) T Breene (Offender) Solicitors: Director of Public Prosecutions (Crown) Breene & Breene (Offender) File Number(s): 2015/53925 Judgment (ON CROWN APPLICATION TO ADJOURN SENTENCE HEARING) 1. HIS HONOUR: Following a trial of some weeks in July of this year, Edward Moses Obeid was found guilty of one count of the offence of wilful misconduct in public office. Following his conviction, the Court fixed a date for sentencing in August. Just prior to that date, Mr Obeid suffered a stroke which necessitated the adjournment of the proceedings with directions being made for the service of material to allow the sentence proceedings to resume tomorrow, Thursday 6 October 2016. 2. It was evident very early on that the Crown was contending that no sentence other than a full-time custodial sentence should be imposed, and that, on behalf of Mr Obeid, it was to be contended that the combination of his age and various medical conditions was such that, even if the Court were to otherwise conclude that a custodial sentence should be imposed, it should not, or if it should, it should be substantially reduced for that reason. 3. When the matter was adjourned in August, the Court made directions which sought to have all of the medical material relied upon by Mr Obeid as well as any other material served by 21 September 2016. 4. In the events that happened, the material was not served until 28 September 2016. Included within that material was a report by a neurologist, Dr David Rosen. That report includes a portion which states that given his age and the constellation of his medical conditions, Mr Obeid's life expectancy is likely to be somewhere between 77.6 and 77.7 years. 5. Doctor Rosen further opines that, if Mr Obeid was to be incarcerated, then based upon studies overseas, every twelve months of incarceration would reduce his life span by two years, every twenty-four months of incarceration would reduce his life span by four years, and every thirty-six months of incarceration would reduce his life span by six years. The Crown anticipates that substantial reliance will be placed upon these conclusions on behalf of Mr Obeid. Further, having received the material on 28 September 2016, the Crown realised that it could not be in a position to respond at the hearing on 6 October 2016. Given the specialised nature of the opinion, that is understandable. However, one regrettable matter is that both sides saw fit not to comply with a direction that required the service of written submissions prior to the sentencing hearing. Thus, the position is, as at today, that they have not been exchanged or provided to the Court. The result of that decision by both the parties was to effectively tie the Court's hands so that realistically, the sentencing proceeding tomorrow simply cannot proceed. 6. The Crown has arranged for Mr Obeid to be medically examined on 11 October 2016. That specialist has indicated that they anticipate being able to provide a report in response by approximately the end of October 2016. Given the events that transpired, considerations of fairness both to Mr Obeid and the Crown require that the Court accede to the Crown's application that the sentence hearing be adjourned. 7. In the ordinary course, the Court would make time available in November for the sentence hearing. As was indicated on the last occasion, there is a strong if not overwhelming public interest that the period between a finding of guilt by a jury and the administration of condign punishment be minimised. The delay that will occur in this matter is inconsistent with the maintenance of that objective. 8. Nevertheless, the Court has been advised that Senior Counsel for the accused is not available in November 2016 apart from three days being 8, 9 and 10 November. The Crown Prosecutor is not available on those days. Ordinarily, the fact the Crown Prosecutor is not available would not prevent the Court from listing the matter. However, given the significance or potential significance of the medical issues, the danger of fixing the matter on any of those three days is that a further adjournment may be necessary. 9. In terms of fixing it later in November 2016, then the position becomes one of diminishing returns, namely, the maintenance of the public interest to which I have referred to earlier against the loss to Mr Obeid of his chosen Counsel who appeared for him at the trial. In the end result, given the unfortunate unfolding of events, the only course the Court can adopt is to adjourn the matter to a date that is convenient to both Senior Counsel for the accused and the Crown Prosecutor, namely, Thursday 1 December 2016. 10. It needs to be understood that the matter will continue on to Friday, 2 December 2016 in the event that it is not completed on Thursday, 1 December. Further judgment on sentence will be delivered before the end of Court term on 16 December 2016. 11. To that end, I will make directions for the service of written submissions and further material. Further, as indicated during the course of argument, the parties will have leave to issue subpoenas to the authors of the various statements and medical reports so that any dispute about any matter of fact relevant to sentencing can be determined on 1, or if need be, 2 December 2016. 12. Accordingly, the Court orders: (1) Listing 6 October 2016 vacated. (2) Matter fixed for submissions on sentence on Thursday, 1 December and Friday, 2 December 2016. (3) The Crown and Mr Obeid to file written submission on sentence on or before 5pm Thursday, 17 November 2016. (4) The Crown to serve all evidence on which it proposes to rely, including any medical evidence, by Friday, 4 November 2016. (5) The matter be stood over for further directions at 9:30am on Friday, 18 November 2016. (6) Grant the parties leave to issue subpoenas for any witness to attend at the sentence hearing and give such evidence as needed on Thursday, 1 December 2016. (7) Direct that Justice Health provide an updated report, including one that addresses matters set out in the report of Dr Rosen dated 25 September 2016, if possible by the end of October 2016. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 February 2020