Elomar v R; Elomar v R [2018] NSWCCA 224

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Elomar v R; Elomar v R [2018] NSWCCA 224 Hearing dates: 15 August 2018 Date of orders: 15 October 2018 Decision date: 15 October 2018 Before: Macfarlan JA at [1]; Hoeben CJ at CL at [2]; Fagan J at [123] Decision: (1) In the case of Mamdouh Elomar, leave to appeal against sentence is granted. (2) The appeal is allowed. (3) The sentence imposed by Adamson J on Mamdouh Elomar on 27 September 2017 is quashed. (4) In lieu thereof Mamdouh Elomar is sentenced as follows: (a) Imprisonment for a term of 3 years and 4 months commencing 27 September 2017 and expiring 26 January 2021. (b) The non-parole period is fixed at 1 year and 8 months, expiring 26 May 2019. (c) Mamdouh Elomar is eligible for parole on 26 May 2019. (d) A fine of $250,000 is imposed. (5) In the case of Ibrahim Elomar, leave to appeal against sentence is granted. (6) The appeal is allowed. (7) The sentence imposed by Adamson J on Ibrahim Elomar on 27 September 2017 is quashed. (8) In lieu thereof Ibrahim Elomar is sentenced as follows: (a) Imprisonment for a term of 3 years and 4 months commencing 27 September 2017 and expiring 26 January 2021. (b) The non-parole period is fixed at 1 year and 8 months, expiring 26 May 2019. (c) Ibrahim Elomar is eligible for parole on 26 May 2019. (d) A fine of $250,000 is imposed. Catchwords: CRIMINAL LAW – sentence appeal – conspiracy with co-offenders to bribe a foreign public official pursuant to ss 70.2 and 11.5 of the Criminal Code 1995 (Cth) – pleas of guilty entered by three co-offenders – two offenders were brothers and directors of engineering, infrastructure and construction company in Australia – third offender was go-between and facilitator – US$1 million transferred to Iraq for purposes of bribe – whether error in findings of trial judge as to role and involvement of offenders – whether error in finding that there was damage resulting from the offence within s 16A(2(e) Crimes Act 1914 (Cth) – whether error in failing to take into account the utilitarian value of the pleas of guilty – whether error in treatment of "good character" evidence – whether sentences involved a breach of the parity principle – appeal allowed – applicants re-sentenced. Legislation Cited: Crimes Act 1914 (Cth) – s 16A(2)(e) (f) (g) Criminal Code (Cth) – ss 11.5(1), 70.2(1) Cases Cited: ACCC v Rana [2008] FCA 374 Athos v R [2013] NSWCCA 205 Cameron v The Queen [2002] HCA 6; 209 CLR 339 Jinde Huang aka Wei Liu v R [2018] NSWCCA 70 Kennedy v R [2000] NSWCCA 527 Kenny v R [2010] NSWCCA 6 Naizmand v R [2018] NSWCCA 25 R v El Rashid (Court of Criminal Appeal (NSW), 7 April 1995, unreported) R v Berg [2004] NSWCCA 300 R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 R v Rivkin [2004] NSWCCA 7; (2004) 184 FLR 365 Regina v Kennedy [2000] NSWCCA 527 Ryan v The Queen [2001] HCA 21; 206 CLR 267 Tyler v The Queen; The Queen v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 Xiao v R [2018] NSWCCA 4 Category: Principal judgment Parties: Ibrahim Elomar – Applicant Mamdouh Elomar – Applicant Regina – Respondent Cth Crown Representation: Counsel: C Smith SC/D Barrow – Applicant Ibrahim Elomar G Bashir SC – Applicant Mamdouh Elomar L Crowley – Respondent Cth Crown