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Elomar v R

Elomar v R

Case [2018] NSWCCA 224 15 October 2018

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elomar v R

Details

AGLC: Elomar v The Queen; Elomar v The Queen [2018] NSWCCA 224
Case: [2018] NSWCCA 224
Decision Date: 15 October 2018

CaseChat Overview and Summary

The case of Elomar v R involved an appeal against sentences imposed on three co-offenders who had pleaded guilty to conspiracy to bribe a foreign public official. The co-offenders were two brothers, who were directors of an engineering, infrastructure and construction company in Australia, and a third individual who acted as a facilitator and go-between. The conspiracy involved the transfer of US$1 million to Iraq for the purposes of a bribe. The primary legal issues before the court were whether there was an error in the trial judge's findings regarding the role and involvement of the offenders, whether there was an error in finding that there was damage resulting from the offence, whether the utilitarian value of the pleas of guilty was properly taken into account, and whether there was an error in the treatment of "good character" evidence. The court also considered whether the sentences breached the parity principle.

The court found that there were errors in the trial judge's findings regarding the role and involvement of the offenders, and in the finding that there was damage resulting from the offence. The court held that the trial judge had not properly taken into account the utilitarian value of the pleas of guilty, and that there was an error in the treatment of "good character" evidence. The court also found that the sentences breached the parity principle. The appeal was allowed, and the applicants were re-sentenced. The court emphasised the importance of properly considering the role and involvement of offenders, the utilitarian value of pleas of guilty, and the treatment of "good character" evidence in sentencing matters.

The final orders of the court were that the appeal be allowed, and that the applicants be re-sentenced in accordance with the court's directions. The court provided detailed guidance on the appropriate sentence for each offender, taking into account their individual circumstances and the principles of sentencing. The court also emphasised the importance of ensuring that sentences are proportionate and do not breach the parity principle.

Orders