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Court of Criminal Appeal 15 October 2018

Elomar v R; Elomar v R

[2018] NSWCCA 224

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL CONSPIRACY WITH CO PLEAS OF GUILTY ENTERED BY THREE CO OFFENDERS THIRD OFFENDER WAS GO

Citation: Elomar v R; Elomar v R [2018] NSWCCA 224
Court: NSW Court of Criminal Appeal
Date: 15 October 2018
Judge(s): Macfarlan JA; Hoeben CJ at CL; Fagan J

Background

Two brothers, Ibrahim and Mamdouh Elomar, were directors and equal shareholders of an Australian engineering, infrastructure and construction company called Lifese Pty Ltd. The company had been pursuing work in Iraq, and a third party, Mr Jousif, acted as a go-between to facilitate introductions to Iraqi government bodies. A conspiracy emerged involving Jousif, an Iraq-based facilitator (Al Zubaidi), and an assistant (Ms Abraham) to secure a government contract by paying a US$1 million bribe to an Iraqi public official.

The Elomars did not become party to the conspiracy until mid-August 2014, after Jousif and Al Zubaidi had already arranged the bribery scheme. Funds were ultimately transferred to Iraq through Jousif's son's Australian bank account. All three principal accused, including Jousif, pleaded guilty to conspiring to bribe a foreign public official under ss 11.5(1) and 70.2(1) of the Criminal Code 1995 (Cth).

At first instance, Adamson J sentenced each of the three applicants to four years' imprisonment with a two-year non-parole period, plus a $250,000 fine. Both brothers sought leave to appeal, raising several alleged sentencing errors, including the treatment of their guilty pleas, good character evidence, a finding of damage, and alleged parity issues with Jousif's sentence.

  • Whether the sentencing judge erred in finding that damage resulted from the offence within s 16A(2)(e) of the Crimes Act 1914 (Cth)
  • Whether the sentencing judge failed to take into account the utilitarian value of the guilty pleas, or improperly qualified the resulting discount
  • Whether the sentencing judge erred by treating good character as a less significant mitigating factor simply because the offence fell within a particular category (white-collar or foreign bribery)
  • Whether Mamdouh's sentence was infected by error in the findings about his role and level of involvement
  • Whether the sentences gave rise to a justifiable sense of grievance under the parity principle, given the identical sentence imposed on Mamdouh compared to Ibrahim, and the lighter sentence received by Jousif

Decision

Role and involvement (Mamdouh): The Court of Criminal Appeal found that the sentencing judge's characterisation of Mamdouh's role was not materially erroneous in the overall scheme, but the combination of errors in other respects warranted resentencing.

Damage finding: The Court accepted there was error in the finding that damage resulted from the offence within s 16A(2)(e). The evidence did not clearly establish the requisite damage flowing from the conspiracy in the manner required by the legislation.

Guilty plea discount: The sentencing judge erred by limiting the credit given for the guilty pleas to a reflection of the applicants' subjective intention to facilitate the administration of justice, without adequately accounting for the full utilitarian value of those pleas. This approach was inconsistent with established principle, particularly where, even in cases where the Crown case is strong, the practical benefits of a guilty plea remain relevant sentencing considerations.

Good character: Both the Chief Judge and Fagan J held that the sentencing judge erred in applying a general principle that good character is of reduced weight simply because the offence was of a particular type. While prior good character may carry less weight where it positioned the offender to commit the offence (for example, by placing them in a position of trust that was then exploited), that reasoning did not apply here. The applicants' decades of ethical business conduct did not facilitate the bribery scheme; rather, the offence was an aberration from an otherwise honest commercial record. Fagan J noted the weight of testimonial evidence from industry executives who attested to the applicants' integrity over many years. Full credit for prior good character was warranted.

Parity: The Court found that, taken together, the identified errors justified resentencing both applicants to a lesser term than that originally imposed.

Orders Made

  • Leave to appeal granted for both Mamdouh Elomar and Ibrahim Elomar
  • Both appeals allowed; sentences imposed by Adamson J on 27 September 2017 quashed
  • Each applicant resentenced to imprisonment for 3 years and 4 months, commencing 27 September 2017 and expiring 26 January 2021
  • Non-parole period for each fixed at 1 year and 8 months, expiring 26 May 2019, with eligibility for parole on that date
  • Fine of $250,000 maintained for each applicant

Key Takeaways

  • A sentencing court cannot reduce the weight given to prior good character simply by classifying an offence as "white-collar" or as a particular type of offence. The specific nexus between an offender's past conduct and the commission of the offence must be examined before diminished credit is applied.

  • The Court of Criminal Appeal confirmed that the utilitarian value of a guilty plea must be fully accounted for in sentencing, even where the Crown case was strong. Limiting the discount to a reflection of the offender's subjective intention is an error of principle.

  • Where an offender's past integrity did not position them to commit the relevant offence (as distinct from cases where a trusted role was exploited), decades of ethical conduct remain substantial mitigating factors and should be given undiminished weight.

  • Findings of damage under s 16A(2)(e) of the Crimes Act 1914 (Cth) must be supported by evidence establishing that damage flowed from the offence in the manner required by the provision. A general inference is insufficient.

  • Parity between co-offenders requires careful analysis of relative culpability. Where multiple sentencing errors are identified in respect of several co-accused who received the same sentence, those errors may collectively justify a reduction in sentence for all affected parties.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 11.5(1), 70.2(1)
- Crimes Act 1914 (Cth), ss 16A(2)(e), (f), (g)

Cases:
- Cameron v The Queen [2002] HCA 6; 209 CLR 339
- Ryan v The Queen [2001] HCA 21; 206 CLR 267
- R v Rivkin [2004] NSWCCA 7; (2004) 184 FLR 365
- R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29
- Tyler v The Queen; The Queen v Chalmers [2007] NSWCCA 247; 173 A Crim R 458
- Xiao v R [2018] NSWCCA 4
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
- Naizmand v R [2018] NSWCCA 25
- Kenny v R [2010] NSWCCA 6
- Kennedy v R [2000] NSWCCA 527
- R v Berg [2004] NSWCCA 300
- ACCC v Rana [2008] FCA 374
- R v El Rashid (NSWCCA, 7 April 1995, unreported)
- Athos v R [2013] NSWCCA 205