R v El-Debel; R v Kahlon (No 7)
[2022] ACTSC 313
•15 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v El-Debel; R v Kahlon (No 7) |
Citation: | [2022] ACTSC 313 |
Hearing Date: | 11 November 2022 |
DecisionDate: | 15 November 2022 |
Before: | Elkaim J |
Decision: | (a) I confirm the convictions of the offenders by the jury on 7 July 2022. (b) Each offender is sentenced to a term of imprisonment of three years and six months, to commence today and end on 14 May 2026. (c) The above terms of imprisonment are to be served by way of an Intensive Correction Order on core conditions. (d) In addition, each offender is to perform 300 hours of community service. (e) The suppression of the alleged third conspirator is to continue until further order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence – conspiracy to intend to dishonestly obtain a gain from a Commonwealth entity – where significant delay no fault of the offenders – where almost total speculation as to the effects of the crimes, uncertainty as to the duration of the conspiracy and a large unknown as to the extent of the gain produced by the conspiracy |
Legislation Cited: | Crimes Act 1914 (Cth) s 20AB Criminal Code 1995 (Cth) s 135.4 Crimes (Sentencing) Act 2005 (ACT) s 11 |
Cases Cited: | Assie v R [2020] NSWCCA 249 Heng v The Queen [2022] SASCA 24 |
Parties: | The Queen (Crown) Raminder Singh Kahlon (Offender in SCC 96 of 2021) Abdul Aziz El-Debel (Offender in SCC 97 of 2021) |
Representation: | Counsel J Nottle and S Young (Crown) M Kalyk (Offender in SCC 96 of 2021) C Newman (Offender in SCC 97 of 2021) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Murphys Lawyers (Offender in SCC 96 of 2021) Kamy Saeedi Law (Offender in SCC 97 of 2021) | |
File Numbers: | SCC 96 of 2021 SCC 97 of 2021 |
Elkaim J:
The trial of the two offenders commenced on 31 May 2022 with various applications about the admissibility of certain evidence. The jury was empanelled on 6 June 2022.
On 7 July 2022 the jury returned a verdict of guilty in respect of each offender. They had each faced the same single charge of conspiring with each other and with a third person with the intention of dishonestly obtaining a gain from the Commonwealth, in particular the Department of Finance. The offence is contrary to s 135.4(1) of the Criminal Code 1995 (Cth) and carries a maximum penalty of 10 years’ imprisonment.
I am satisfied that the jury found the conspiracy established beyond reasonable doubt and that the agreement, the subject of the conspiracy, operated in the following way.
Mr El-Debel was a public servant in the above Department. He was in a senior position. His duties included overseeing spending by the Department including the procurement of personnel to work in various IT projects. In performing these duties, he sat on or advised evaluation panels which made recommendations as to the acceptance of candidates.
Mr Kahlon and the third person were, in their own right, contractors to the Department. They were also, respectively, the sole owners of two limited companies, New Horizons Business Solutions Pty Ltd and Algoram Pty Ltd. In respect of the latter company, the Crown case was that its name was a product of the first names of the three conspirators (“Al” for Alex, “go” for the third person and “ram” for Raminder). The attempts to suggest to the jury that the company name had a different source were obviously soundly rejected.
The above two companies put forward candidates for the various positions offered under the IT projects. If accepted, the candidates, who were subcontractors, would usually be remunerated by payment from the Department to the companies which would deduct a margin (essentially a commission) from the payment before passing the balance onto the subcontractor.
The essence of the conspiracy was that the three conspirators would facilitate the procurement process to the advantage of candidates that had been put forward by the two companies. The gain to them was in the margin that the companies received, as described above. The margins were then distributed to the conspirators.
I am further satisfied that the jury concluded, beyond reasonable doubt, that the agreement involved the intention of dishonestly obtaining the margin. This was primarily evidenced by the concealment from the Department of the arrangements between the companies and the payment of an amount of money to Mr El-Debel.
The evident seriousness of the above conduct must be tempered by the following matters:
(a)While the obtaining of the margins was unlawful, their amounts did not come at a cost to the Department because the amounts paid by the Department would have been paid in any event to whichever of the many companies, which put forward candidates, had been successful.
(b)The Crown cannot say how much money was the product of the unlawful activity, nor can it say how much money was paid to Mr El-Debel in pursuance of the conspiracy. The telephone intercepts, which were at the core of the Crown case, refer to various, and sometimes large amounts of money, but how much of this money is attributable to the conspiracy is unknown.
(c)There is no suggestion that any of the candidates put forward by either of the two companies were other than suitable for the respective positions, or that when successful, the candidates did not perform their contractual duties competently and for the benefit of the Department. Notably, following the arrest of the offenders, the candidates that had been engaged had their contracts terminated but they were then later re-engaged.
(d)The length during which the conspiracy operated is ostensibly between the incorporation of Algoram Pty Ltd on 22 March 2019 and the arrest of the conspirators on 10 June 2020. It is apparent from the evidence however that the conspiracy was not constantly operating over this period. The highest point of the evidence is that it applied to two contracts (known as SST–044 and SST–045) thereby limiting the relevant period to 28 March 2020 until 10 June 2020. I think the period of the conspiracy should be viewed as between 22 March 2019 and 10 June 2020, but acknowledging that it did very little work before 28 March 2020. The Crown effectively conceded that there was no reliable evidence of corrupt activity by Algoram Pty Ltd before March 2020.
(e)There were occasions when candidates put forward by competing companies were favoured over those put forward by New Horizons Pty Ltd or Algoram Pty Ltd. This may have occurred to maintain an appearance of legitimacy but nevertheless strengthens the picture of the conspiracy acting on a ‘part-time’ basis.
The result of the matters set out in the previous paragraph is that it may well be said that the Department suffered no monetary loss nor any functional loss arising from its acceptance of candidates put forward under the conspiracy. In turn, the objective seriousness of the offending is very difficult to assess. A fraudulent gain of, say $1 million, is very much more serious than a gain of $10,000. Of itself the fraud, which involved the infiltration of a government department for the personal gain of three persons, is objectively serious. But little more can be said by way of objective assessment. This must play a significant part in the sentencing process.
In respect of the conclusion just reached concerning objective seriousness, I have specifically taken into account the following statements made by the Crown in the course of the trial or pre-trial arguments:
(a)Firstly, this exchange between me and senior counsel:
His Honour: What is the gain?
The Crown: It is money.
His Honour: How much? Can you identify?
The Crown: We can’t identify the amount.
(b)Secondly, senior counsel said:
Ultimately, monies would have flowed from the recruitment process which we focus on in the charge. But the ultimate recruitments happened right towards the end of the charge. And not all that long before the arrests of the three accused initially and so the details of that- the economic effect of that are not - don’t loom large in the Crown case.
A factual matter about which there was some contention relates to Mr El-Debel collecting “stuff” from an address in Sydney on 11 October 2019. The Crown submitted that this was $34,000 in cash. The offenders submitted that this conclusion had not been established. I think that the jury would have been satisfied beyond reasonable doubt that cash was being collected. The difficulty is to associate the cash with the conspiracy. There was no evidence to establish a link between any of the illegally collected margins and this cash amount. It is to be remembered that the international transfers of cash, although unusual, were not alleged to be illegal. As stated by the Crown during a pre-trial hearing:
The jury would be told it is no part of the Crown case that there is anything wrong with sending money overseas.
There certainly is an available inference that Mr El-Debel was being paid for his participation in the conspiracy. The difficulty is to ascertain precisely what he was being paid for, whether or not the $34,000 represented a specific payment or was an amount that was available at the time but not referable to any specific margins.
The Crown, in written submissions, has reminded me that “the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence”. In my view, the absence of a known loss to the Commonwealth or a known gain to the offenders (as a result of their criminal activity) are very relevant “circumstances of the offence”.
The Crown submitted that the candidates who were not successful, because of the unlawful influence, were victims of the conspiracy and that the selection panels were deprived of the opportunity to fairly assess all of the candidates equally. These observations are correct but are significantly mitigated by the fact that the Crown makes no complaint whatsoever about the quality of the candidates that were selected.
The Crown’s submission is that “the only appropriate sentence is a term of imprisonment”. I find it difficult to equate what is appropriate with the uncertainty of vital circumstances, as I have outlined above. Put another way, the offenders must be sentenced for the crime they have committed. This necessarily involves a characterisation of the crime based on its effects, consequent losses and consequent gains. Defining these elements is almost impossible.
A type of loss to the Commonwealth which I have considered is reputational damage of the nature referred to in Kamay v The Queen [2015] VSCA 296; 47 VR 475. This was an insider trading case in which the Victorian Court of Appeal referred to the damage to the market and to the corporation that had been the subject of the leaked information.
The Crown provided me with some ‘comparative’ cases but they are all readily distinguishable because of the factors I have outlined above. For example in Heng v The Queen [2022] SASCA 24 there was an identified loss of $4.6 million, in Assie v R [2020] NSWCCA 249 the offender had a gain of $11,000, in R v Chang [2016] NSWCCA 296 there was a loss to the Australian Taxation Office of almost $3 million and in R v Mereb; R v Younan [2014] NSWCCA 149 a tax shortfall of $1 million was identified.
I could contemplate damage to the reputation of the Department of Finance in allowing the corrupt scheme to so openly function within its daily operations. There is however no evidence to this effect. Nothing in the way of a ‘victim impact statement’ has been put forward nor was there any such evidence during the trial.
Although the third person has yet to be tried, the finding of guilt against Mr El-Debel and Mr Kahlon necessarily implicates the third person. Each of the three conspirators played a separate role in the events. Mr El-Debel, in particular, operated from within the Department as an employee of the Department. Mr Kahlon and the third person were mostly involved through their roles in putting forward candidates for selection.
Notwithstanding what I have said in the previous paragraph, I would nevertheless assess the comparative involvement of Mr El-Debel and Mr Kahlon, despite playing different parts, as roughly equal. The third person clearly came across as the person ‘in charge’ and generally directing his co-conspirators.
In my view, as far as sentencing is concerned, there is no reason to impose any harsher sentence on Mr El-Debel than on Mr Kahlon, or vice versa. This is despite the respective submissions of each offender’s counsel suggesting the other offender was more criminally involved. I agree with the Crown that each offender should be treated equally.
Both offenders were previously men of good character. This might be viewed as being of lesser significance in a case of this type. This is because absent their good character the offenders would not have been in a position to conduct the conspiracy. It has been pointed out however that none of the offenders underwent any credit scrutiny which might otherwise have affected their entitlement to their positions. I think their good character does remain relevant, although perhaps not to the same degree as in other types of crime.
Mr El-Debel
Mr El-Debel was born in 1972 in Lebanon but grew up from a young age in Australia. Although his father was “strict and regimented in his ways”, he nevertheless had a supportive upbringing.
Mr El-Debel has been married for 24 years. There are two children. They are a close family.
Mr El-Debel completed high school in Sydney. He was a good sportsman and after school was offered a contract with the Canberra Raiders. This is what brought him to the ACT. He went to university in Canberra where he completed a degree in commerce and finance. He has always been employed. He started to work in the public service in 2005 and worked his way up to senior executive level positions. He was an Acting Assistant Secretary for more than three years. Since being suspended as a result of the current matters, Mr El-Debel has helped his wife in her restaurant business.
Mr El-Debel does not drink much alcohol and he has nothing to do with illicit drugs. He is physically healthy. However, as I observed during the trial, Mr El-Debel did seem to be particularly anxious. This is confirmed by a letter from Dr Zekrya, a general practitioner, who says that Mr El-Debel “has been suffering from anxiety disorder associated with stress which has been going on in the past approximately 18 months”. He suggests consulting a psychologist.
Mr El-Debel, in discussions with the authors of the pre-sentence report, has maintained his innocence. He said that his actions had actually reduced expenses for the Commonwealth. He felt “you should be praised for making decisions as a Director of Finance for saving costs to taxpayers”. He may be right. Unfortunately, he did it in the wrong way and, even if to an unknown extent, to his own benefit.
The pre-sentence report says there is a low risk of re-offending and he is surrounded by a number of protective factors “being his minimal past criminal history, his historic and ongoing full-time employment, stable accommodation, and supportive family and relationships”.
The report concludes that he is suitable for an Intensive Correction Order (an ICO).
Mrs Cigdem El-Debel has written a letter to the Court. She refers to their close relationship and to the effects that the charge has had upon her husband. She refers to his mental health and him having become withdrawn and having panic attacks.
There is a letter from Ms Maree O’Neale who works in the ACT public service. She has worked with Mr El-Debel and has become a close friend with him and his family. She says that she can “confidently say any behaviour like this is out of character for the person that I have known and the manager that I worked with”. She continues:
I have never known Mr El-Debel to act, intentionally or otherwise, to disadvantage another person. Mr El-Debel has always been a person who acted with a high level of integrity and regard for others. He is a well-respected manager in all his positions in the public service. His brilliant mind and vision lead to innovation and his care and respect for his staff rallied them to deliver projects that were complex and challenging.
Ms O’Neale refers to the “length of time that it has taken to resolve this matter and has had his family in limbo for years and changed their lives irreversibly”. This is an important point. The preparation of this matter, and the bringing of it to Court, were beset with delays, all at the feet of the Crown. I think this delay can be taken into account. I accept that in fraud matters preparation may be more difficult and take more time but, as demonstrated by Exhibit ED 2, the delay in this case was excessive.
There is a letter from Ms Rina Bruinsma who worked with Mr El-Debel in the Department of Finance. She has become a good friend. She is also concerned about his mental wellbeing. She has observed the toll taken on the entire family. She concludes that Mr El-Debel “is a good person who has learned difficult lessons”.
Another reference is from Ms Chrysanthe Psychogios, also a friend and colleague from the Commonwealth Public Service. She describes Mr El-Debel’s strong work ethic and the shock to her of the charge against her “honest and trustworthy colleague and friend”.
I have also been referred to a Facebook comment site called The Quiet Australian. It is replete with unjustified and improper racist comments. I regard this as an extra curial punishment of both offenders.
Mr Kahlon
Mr Kahlon was born in India in 1983. He had a privileged childhood with a “loving supportive family with little hardships or difficulties”. He completed school and went to a university in India where he obtained an information technology degree. He then moved to Australia and began work as an IT consultant. He seems to have continued to run businesses of this type.
He is also a light drinker and does not use any illicit substances.
Mr Kahlon has been married for two and a half years and has a young child. He is physically and mentally well. There is a report from a psychiatrist, Dr Henderson, dated 10 October 2022. Dr Henderson has not reached any diagnosis of any mental condition but he says that Mr Kahlon “has experienced symptoms of mild stress in relation to his charges”. This is not surprising. Dr Henderson thinks there is a “vulnerability to depression”.
Dr Henderson also expresses a concern that a custodial sentence “is likely to be experienced by Mr Kahlon in terms of profound shame and sense of failure”. In addition, he thinks that if Mr Kahlon is put in prison his wife and daughter will probably return to India.
There is a letter from Mr Kahlon’s wife, Ms Simerdeep Sandhu. She holds degrees in engineering and law. She is eligible to be admitted as a lawyer in Australia. She refers to the stress that her husband has suffered consequent upon the charges and the effect on his reputation. She concludes her letter in this way:
We, together, are trying to bring our life back on track but the uncertainty surrounding his punishment is making difficult for us to start our life again. We have undergone many hardships in the last two and half years. I request your honour to please be considerate of our situation so that we can lead a normal life.
There is a reference from Mr Sandeep Dayal, a chartered accountant who worked with Mr Kahlon and has become his friend. He writes about Mr Kahlon’s skills in the IT field and he praises Mr Kahlon’s “commitment for his family and respect him for fulfilling his responsibility towards his mother and younger siblings (sister and brother)”.
Mr Jaswinder Rai has a senior position in the Department of Agriculture, Fisheries and Forestry. He has also worked with Mr Kahlon and became his friend. He attests to Mr Kahlon’s sincerity and devotion to his work. He says that “[a]ll the hardships that he faced since the accusation has taken a toll on his health, profession, life and reputation”. He concludes:
[Mr Kahlon] as a person. I know, is a sincere, industrious, intelligent, helpful and trustworthy person. He is not only passionate about his work but about everything he does, no matter how small the task at hand is.
Mr Satbir Luthra is a long-time friend of Mr Kahlon. He says that Mr Kahlon “is hard-working, honest and selfless man who is always ready to help anyone”.
Like Mr El-Debel, Mr Kahlon maintains his innocence. Clearly therefore there is no remorse on the part of either offender. A submission on behalf of Mr Kahlon which I reject is that he should be given credit for participating in a record of interview with the police. I reject the submission because Mr Kahlon denied his involvement which included quite unbelievable explanations for the origin of the name of Algoram Pty Ltd.
Mr Kahlon has also been assessed as suitable for an ICO. His calculated risk of re-offending was low.
Sentencing
Ultimately, I am faced with sentencing two intelligent, high achieving, respected family men who have, probably through greed, ruined their reputations and harmed their families’ lives.
Notwithstanding all I have said about the uncertainties surrounding the offence, it is nevertheless serious because it involved the infiltration and manipulation of a public organisation.
If the fraud had revealed a significant loss to the Commonwealth or a quantifiable large gain to the offenders, a sentence of full-time imprisonment would have been inevitable. But this is not the case. I am not prepared to sentence these two men to full-time imprisonment on the basis of almost total speculation as to the effects of the crimes, in particular uncertainty as to the duration of the conspiracy, the extent of the gain produced by the conspiracy and of the loss (if any) suffered by the Department of Finance.
Both offenders have families who will no doubt suffer, emotionally and economically, if a custodial sentence is imposed. As already noted, Mr Kahlon’s wife and child will probably need to return to India if he is imprisoned. Mr El-Debel’s wife has described the effect on the family, in particular on the children. She also refers to the financial impact upon the family’s resources.
Until recently, it was thought that family hardship could not be taken into account as a mitigating factor other than in “exceptional circumstances”. This approach seems to have been put to rest, as incorrect, in Totaan v R [2022] NSWCCA 75; 400 ALR 578. At [77], Bell CJ described the requirement for exceptional circumstances as “plainly wrong”. This ‘change’ was conceded by the Crown.
I still however think that the crimes are deserving of imprisonment but that this imprisonment should be served by way of an ICO. In reaching this conclusion I have also taken into account, but to a lesser degree than ‘usual’, the previous good character of the offenders and their previous position as decent and contributing members of society. Because the term of imprisonment will be more than two years, I find that a sentence in excess of two years, but less than four years, is appropriate taking into account the factors listed in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT). Most notably, the offenders pose no risk to the community.
The application of this ACT legislation for a Federal offence is permissible under s 20AB(1) and s 20AB(1AA)(iii) of the Crimes Act 1914 (Cth).
I also think that the punishment should be reinforced by the offenders performing community service.
I think the appropriate term of imprisonment is three years and six months.
I make the following orders:
(a)I confirm the convictions of the offenders by the jury on 7 July 2022.
(b)Each offender is sentenced to a term of imprisonment of three years and six months, to commence today and end on 14 May 2026.
(c)The above terms of imprisonment are to be served by way of an Intensive Correction Order on core conditions.
(d)In addition, each offender is to perform 300 hours of community service.
(e)The suppression of the alleged third conspirator is to continue until further order.
| I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Draft Judgment of his Honour Justice Elkaim. Associate: Date: |
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Amendments
16 November 2022 Replace “offenders’” with “offenders” at paragraph [12].
Replace “The Client Australian” with “The Quiet Australian” at paragraph [36].
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