R v El Khatib - [2019] NSWDC 158

District Court

New South Wales

Medium Neutral Citation: R v El Khatib [2019] NSWDC 158
Hearing dates: 8 March 2019
Date of orders: 19 March 2019
Decision date: 19 March 2019
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1) Mr El Khatib is convicted upon six counts of corruptly receiving a benefit under s 249B of the Crimes Act 1900.
(2)   In respect of Count 11 of the indictment, I sentence Mr El Khatib to a fixed term of imprisonment of 18 months, commencing on 17 March 2019 and to conclude on 16 September 2020.
(3)   In respect of Counts 1, 3, 5, 7 and 9 of the indictment, I impose an aggregate sentence of three years and six months, and a non-parole period of two years to commence on 17 June 2019. The total aggregate term of imprisonment is to conclude on 16 December 2022, and the aggregate non-parole period is to commence on 17 June 2019 and conclude on 16 June 2021, with the aggregate parole period from 17 June 2021 to 16 December 2022.
(4)   In respect of the aggregate sentence, I note the following indicative sentences:
(a)   Count 1 – three years’ imprisonment.
(b)   Count 3 – 18 months’ imprisonment.
(c)   Count 5 – 18 months’ imprisonment.
(d)   Count 7 – three months’ imprisonment.
(e)   Count 9 – three months’ imprisonment.
(5)   The total effective sentence, being the accumulation of the fixed term of imprisonment imposed in respect of Count 11, and the total aggregate sentence to be served largely concurrently, is for a period of three years and nine months, with a non-parole period of two years and three months.
(6)   I recommend that the offender be released to parole on 16 June 2021.

Catchwords: SENTENCE – corruptly receiving benefits for favours – employee – middle-management – approximately $350,000 received over 2 years –– detriment to other sub-contractors – lack of remorse and contrition – parity – financial gain – series of criminal acts
Legislation Cited: Crimes Act 1900, s 249B
Crimes (Sentencing Procedure) Act 1999, s 3A, s 5, s 21A, s 24B, s 44, s 68
Cases Cited: Cheung v R (2001) 209 CLR 1
Filippou v R (2015) 256 CLR 47; [2015] HCA 29
R v Isaacs (1997) 41 NSWLR 374
R v Olbrich (1999) 199 CLR 270
Savvas v R (1995) 183 CLR 1
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category: Sentence
Parties: Regina
Badih El Khatib
Representation:
Counsel:
Ms S Traynor (Crown)
Ms J Hickleton (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Gregory J Goold Solicitors (Offender)

File Number(s): 2015/112668
Publication restriction: None

sentencing remarks

Badih El Khatib was found guilty by a jury on all six principal counts of corruptly receiving benefits as inducements for showing favours in relation to the business of his employer, Linfox Australia Pty Ltd, under s 249B(1) of the Crimes Act 1900. The maximum penalty for each offence is seven years’ imprisonment. There is…

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 R v El Khatib

Details

AGLC: R v El Khatib [2019] NSWDC 158
Case: [2019] NSWDC 158
Decision Date: 19 March 2019

CaseChat Overview and Summary

In the case before the court, Mr El Khatib stood accused of multiple counts of corruptly receiving a benefit under section 249B of the Crimes Act 1900. The allegations involved Mr El Khatib, an employee in a middle-management position, receiving approximately $350,000 over a period of two years. The acts in question caused a detriment to other sub-contractors, and Mr El Khatib exhibited a lack of remorse and contrition throughout the proceedings. The case was heard by the court, which was tasked with determining the appropriate legal framework to apply and the corresponding penalties for Mr El Khatib’s actions.

The court had to consider the nature and extent of Mr El Khatib's corrupt activities, his position within the company, and the impact of his actions on others. It was essential to assess the financial gain he obtained and whether the series of criminal acts warranted a specific sentence for each count. The court also needed to ensure that the sentence was commensurate with the principles of parity and that it provided adequate deterrence. Furthermore, the court had to evaluate the level of culpability and consider Mr El Khatib’s lack of remorse as a mitigating factor in the sentencing process.

In delivering the judgment, the court found Mr El Khatib guilty on six counts of corruptly receiving a benefit. The court imposed a fixed term of imprisonment of 18 months for one count, and an aggregate sentence of three years and six months for the remaining counts. The total effective sentence, considering the largely concurrent terms, amounted to three years and nine months, with a non-parole period of two years and three months. The court recommended that Mr El Khatib be released on parole on 16 June 2021. The court balanced the severity of the offence with the need for deterrence and rehabilitation, ensuring the sentence aligned with legal principles and the nature of the crimes committed.

Orders

Orders of the court

(1) Mr El Khatib is convicted upon six counts of corruptly receiving a benefit under s 249B of the Crimes Act 1900.

(2) In respect of Count 11 of the indictment, I sentence Mr El Khatib to a fixed term of imprisonment of 18 months, commencing on 17 March 2019 and to conclude on 16 September 2020.

(3) In respect of Counts 1, 3, 5, 7 and 9 of the indictment, I impose an aggregate sentence of three years and six months, and a non-parole period of two years to commence on 17 June 2019. The total aggregate term of imprisonment is to conclude on 16 December 2022, and the aggregate non-parole period is to commence on 17 June 2019 and conclude on 16 June 2021, with the aggregate parole period from 17 June 2021 to 16 December 2022.

(4) In respect of the aggregate sentence, I note the following indicative sentences:

(a) Count 1 – three years’ imprisonment.

(b) Count 3 – 18 months’ imprisonment.

(d) Count 7 – three months’ imprisonment.

(e) Count 9 – three months’ imprisonment.

(5) The total effective sentence, being the accumulation of the fixed term of imprisonment imposed in respect of Count 11, and the total aggregate sentence to be served largely concurrently, is for a period of three years and nine months, with a non-parole period of two years and three months.

(6) I recommend that the offender be released to parole on 16 June 2021.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v El Khatib [2019] NSWDC 158
Hearing dates:	8 March 2019
Date of orders:	19 March 2019
Decision date:	19 March 2019
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Mr El Khatib is convicted upon six counts of corruptly receiving a benefit under s 249B of the Crimes Act 1900. (2) In respect of Count 11 of the indictment, I sentence Mr El Khatib to a fixed term of imprisonment of 18 months, commencing on 17 March 2019 and to conclude on 16 September 2020. (3) In respect of Counts 1, 3, 5, 7 and 9 of the indictment, I impose an aggregate sentence of three years and six months, and a non-parole period of two years to commence on 17 June 2019. The total aggregate term of imprisonment is to conclude on 16 December 2022, and the aggregate non-parole period is to commence on 17 June 2019 and conclude on 16 June 2021, with the aggregate parole period from 17 June 2021 to 16 December 2022. (4) In respect of the aggregate sentence, I note the following indicative sentences: (a) Count 1 – three years’ imprisonment. (b) Count 3 – 18 months’ imprisonment. (c) Count 5 – 18 months’ imprisonment. (d) Count 7 – three months’ imprisonment. (e) Count 9 – three months’ imprisonment. (5) The total effective sentence, being the accumulation of the fixed term of imprisonment imposed in respect of Count 11, and the total aggregate sentence to be served largely concurrently, is for a period of three years and nine months, with a non-parole period of two years and three months. (6) I recommend that the offender be released to parole on 16 June 2021.
Catchwords:	SENTENCE – corruptly receiving benefits for favours – employee – middle-management – approximately $350,000 received over 2 years –– detriment to other sub-contractors – lack of remorse and contrition – parity – financial gain – series of criminal acts
Legislation Cited:	Crimes Act 1900, s 249B Crimes (Sentencing Procedure) Act 1999, s 3A, s 5, s 21A, s 24B, s 44, s 68
Cases Cited:	Cheung v R (2001) 209 CLR 1 Filippou v R (2015) 256 CLR 47; [2015] HCA 29 R v Isaacs (1997) 41 NSWLR 374 R v Olbrich (1999) 199 CLR 270 Savvas v R (1995) 183 CLR 1 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Regina Badih El Khatib
Representation:	Counsel: Ms S Traynor (Crown) Ms J Hickleton (Offender) Solicitors: Director of Public Prosecutions (Crown) Gregory J Goold Solicitors (Offender)
File Number(s):	2015/112668
Publication restriction:	None