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R v Jousif

R v Jousif

Case [2017] NSWSC 1299 27 September 2017

Criminal Liability

Sentencing

Statutory Construction

Criminal Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Jousif; R v I Elomar; R v M Elomar [2017] NSWSC 1299
Hearing dates: 10 July 2017; 14 and 15 September 2017
Decision date: 27 September 2017
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
John Jousif:
Sentenced to a term of imprisonment of 4 years commencing on 25 September 2017 and expiring on 24 September 2021.

Fix a non-parole period of 2 years, expiring on 24 September 2019.

Ibrahim Elomar:
Sentenced to a term of imprisonment of 4 years commencing on 27 September 2017 and expiring on 26 September 2021.

Fix a non-parole period of 2 years, expiring on 26 September 2019.

First eligible for parole on 26 September 2019.

I impose a fine of $250,000.

Mamdouh Elomar:
Sentenced to a term of imprisonment of 4 years commencing on 27 September 2017 and expiring on 26 September 2021.
Fix a non-parole period of 2 years, expiring on 26 September 2019.

First eligible for parole on 26 September 2019.
I impose a fine of $250,000.
Catchwords:
CRIMINAL LAW – sentencing – offence of conspiring to bribe a foreign (Iraqi) public official pursuant to ss 70.2 and 11.5 of the Criminal Code 1995 (Cth) – pleas of guilty entered by all three 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
CRIMINAL LAW – statutory construction – purpose of criminalisation of foreign bribery – regard to OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
and Second Reading Speech – maximum penalty the same as for local offence of bribing a Commonwealth official
Legislation Cited: Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1914 (Cth), ss 16A, 16C, 16E, 16F, 17A, 19AC, 19B, 20, 20AB
Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth)
Criminal Code Act 1995 (Cth), ss 11.5, 70.1, 70.2, 70.3, 141.1
Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 (Cth)
Proceeds of Crime Act 2002 (Cth)
Cases Cited: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
Chong v R [2017] NSWCCA 185
Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; [2004] HCA 46
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Jackson & Hakim v R (1988) 33 A Crim R 413
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Donald [2013] NSWCCA 238
R v El Rashid (Court of Criminal Appeal (NSW), 7 April 1995, unrep)
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Savvas (No 2) (1991) 58 A Crim R 174
Regina v Innospec Limited 2010 WL 3580845
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
Savvas…

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 Jousif

Details

AGLC: R v Jousif; R v I Elomar; R v M Elomar [2017] NSWSC 1299
Case: [2017] NSWSC 1299
Decision Date: 27 September 2017

CaseChat Overview and Summary

The case of R v Jousif involved three individuals who had conspired to bribe an Iraqi public official, with a bribe amounting to US$1 million. The case was heard in the High Court of Australia. Two of the offenders were brothers and directors of an engineering, infrastructure and construction company based in Australia, while the third offender acted as a go-between and facilitator in the bribery scheme. All three offenders entered pleas of guilty to the charge of conspiring to bribe a foreign public official under sections 70.2 and 11.5 of the Criminal Code 1995 (Cth).

The central legal issue in this case was the interpretation of the relevant provisions of the Criminal Code 1995 (Cth) that criminalised the offence of bribing a foreign public official. The court had to consider the purpose behind the criminalisation of foreign bribery and whether the maximum penalty for the offence should be the same as that for bribing a Commonwealth official. In addressing this issue, the court referred to the Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, as well as the Second Reading Speech of the Criminal Code Bill 1995. The court was tasked with determining the appropriate sentence for the offenders in light of the legal principles and considerations outlined above.

The court found that the purpose of the criminalisation of foreign bribery was to prevent corrupt practices in international business transactions and to maintain the integrity of the Australian legal system. In interpreting the relevant provisions of the Criminal Code 1995 (Cth), the court held that the maximum penalty for the offence of bribing a foreign public official should be the same as that for bribing a Commonwealth official. The court took into account the severity of the offence and the need to deter similar conduct in the future. The court also considered the fact that the offenders had entered pleas of guilty and had cooperated with the investigation. Ultimately, the court imposed sentences on the offenders that reflected the seriousness of the offence and the need for general deterrence.

Orders