R v Jousif - [2017] NSWSC 1299

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 v The Queen (1995) 183 CLR 1; [1995] HCA 29
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Tyler v R; R v Chambers [2007] NSWCCA 247; (2007) 173 A Crim R 458
Valsamakis v R [2016] NSWCCA 156
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Texts Cited: Commonwealth, Parliamentary Debates, House of Representatives, 19 March 2015, 2909-2912
Commonwealth, Parliamentary Debates, House of Representatives, 3 June 1999, 6044-6046
Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015
OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
Category: Sentence
Parties: Regina
John Jousif (Offender)
Ibrahim Elomar (Offender)
Mamdouh Elomar (Offender)
Representation:
Counsel:
D Staeli SC (Crown)
G Scragg (Offender John Jousif)
G James QC (Offender Ibrahim Elomar)
A Djemal (Offender Mamdouh Elomar)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Birchgrove Legal (Offender John Jousif)
Lawyers Corp (Offenders Ibrahim Elomar and Mamdouh Elomar)

File Number(s): 2015/52844; 2015/63885; 2015/63877

Judgment

Introduction

On 10 July 2017 John Jousif, Ibrahim Elomar and Mamdouh Elomar pleaded guilty to the offence of conspiring to bribe an Iraqi official contrary to ss 11.5(1) and 70.2(1) of the Criminal Code Act 1995 (Cth) (the Code). The indictment presented by the Crown charged that the offenders:

“Between about 7 July 2014 and about 20 February 2015, at Sydney, in the State of New South Wales and elsewhere, did conspire with each other and with Wael Al Zubaidi to provide a benefit to another person, the benefit not being legitimately due to the other person, with the intention of influencing a foreign public official in the exercise of the official's duties as a foreign public official in order to obtain business.”

The maximum penalty for the substantive offence of bribing a foreign official is, in respect of an individual, ten years’ imprisonment, a fine of 10,000 penalty units ($1.7 million, at the time of the offence), or both: s 70.2(4) of the Code. By reason of s 11.5(1) of the Code the offence of conspiracy has the same penalty, although the relevant offence is the agreement, not the substantive offence the subject of the agreement.

The facts

The source of the facts

The Crown tendered an agreed statement of facts which was signed by the Crown and each offender. The following narrative taken from the agreed statement of facts largely comprises summaries of telephone intercepts (not all of which are referred to below). For this reason, references to conversations in the narrative are references to telephone conversations, except where otherwise indicated (for example, because the conversation was obtained by a surveillance device rather than a telephone intercept). The agreed facts also refer to documents obtained when relevant premises were searched pursuant to a warrant on 19 February 2015, as well as electronic documents, such as emails, which were recovered from computers seized pursuant to the warrants. Where currencies were specified in the conversations or documents they are indicated in the narrative. However, where no indication is given, the amounts are expressed in dollars, without reference to whether the currency is US$ or A$.
The offenders also relied on certain transcripts of individual calls which had been intercepted which will be referred to where necessary.

The standard of proof and its relevance in the context of sentencing

As sentencing judge, I may not take facts into account in a way that is adverse to the interests of each offender unless the facts have been agreed or established beyond reasonable doubt. However, if there are circumstances which I propose to take into account in favour of each offender, it is sufficient that they be proved on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. There are other matters which can be taken into account in sentencing, or which form part of the narrative, which do not fall into either category, including matters that are “known to the court”: s 16A(2) of the Crimes Act 1914 (Cth) and Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [19]-[24]. Notwithstanding the extensive investigation of the offence, which has produced “real time” evidence of its commission, largely through telephone intercepts, there are many facts which cannot be determined.
I have satisfied myself beyond reasonable doubt of any matter which I have taken into account which is adverse to an offender. Matters taken into account in favour of an offender have been established on the balance of probabilities, or conceded by the Crown.

The persons involved

Ibrahim and Mamdouh Elomar (the Elomars), who are brothers, were directors and equal shareholders of Lifese Pty Ltd (Lifese). Lifese, which was incorporated in New South Wales in 1986, was involved in engineering, infrastructure and construction projects both in Australia and overseas.
Mr Jousif is an Australian resident and an Iraqi citizen who lived in Fairfield. Mr Jousif knew Wael Al Zubaidi, who lived in Baghdad. In about January 2013 Mr Jousif met Giselle Abraham and introduced her to Mr Al Zubaidi, with whom she formed a business relationship. Mr Jousif, Mr Al Zubaidi and Ms Abraham held themselves out as persons with expertise in introducing companies to government and statutory authorities in Iraq and the protocols associated with obtaining contracts with such bodies. The intercepted conversations indicate that they approached individuals and companies in Australia to encourage them to do business in Iraq.

The proposal that Lifese do business in Iraq

The financial state of Lifese up to 2013

John Nurmi, Lifese’s external Chartered Accountant, deposed that by about 2013 the general decline in the Australian mining and construction sector adversely affected Lifese and its ability to maintain its operations. He also referred to the circumstance that when the activities of certain members of the family became known, many of its clients and associates stopped dealing with the company. I understood this to include a reference to Mohammed, one of Mamdouh’s sons, who was reported to have gone to Syria to join ISIS and was subsequently killed there.
Mr Nurmi deposed that the turnover of Lifese dropped from A$24.2 million in the 2013 financial year to A$4.9 million in the 2014 financial year and the work force was reduced from 200 to 20. There were two sets of accounts in evidence for the 2013 year, one annexed to Mr Nurmi’s affidavit and the other, also signed by the Elomars, which was put to Mr Nurmi in cross-examination. Mr Nurmi denied ever seeing the latter. Many of the items in the second set were simply a product of the corresponding item in the first set and a multiplier. In these circumstances, the financial state of Lifese at that time and the extent of any downturn cannot be determined from the accounts.
The Crown accepted that by 2013 there was a “downturn” in the business of Lifese and that the company was “in decay” by 2014. It was suggested that the Commonwealth Bank had restricted Lifese’s facilities. The evidence does not enable me to determine the cause of any such restrictions and in particular whether they resulted from the obloquy to which the family was subjected.

The genesis of the proposal to do business in Iraq

In 2013 Mr Jousif approached the Elomars to suggest that they consider expanding to Iraq where there were substantial infrastructure projects on offer which he, Ms Abraham and Mr Al Zubaidi were investigating. The Elomars were susceptible to Mr Jousif’s approach as they were, for the reasons set out above, looking for new business opportunities.

Arrangements in 2013 for the establishment of Lifese’s business in Iraq

The Elomars were encouraged by Mr Jousif to take steps to establish themselves in Iraq with a view to obtaining government infrastructure contracts. For example, in March 2013 they wrote to the Iraqi Ministry of Trade. In April 2013 Mr Jousif was appointed as Lifese’s “Resident Office Manager” in Iraq and the Elomars arranged for $45,000 to be paid into an account in the name of his son for Mr Jousif’s benefit. On 30 April 2013 Mamdouh signed, on behalf of Lifese, a “Preliminary Contract” for the construction of a 2,500-unit residential complex in Baghdad for the Iraqi Journalists Association, with which Mr Al Zubaidi was associated. In June 2013, the Elomars wrote to the same ministry to inform it of their decision to appoint Mr Al Zubaidi as the manager of Lifese’s regional office in Iraq (with authority over legal and administrative, but not financial, matters). In July 2013 Ibrahim, on behalf of Lifese, wrote to the same ministry authorising a lawyer to register Lifese with all government departments in Iraq. In late November the Iraqi Ministry of Trade approved the registration of Lifese’s office in Iraq and issued it with a registration licence.

The first warrant: Ms Abraham’s involvement

On 7 April 2014 the Australian Federal Police (AFP) obtained a warrant for the interception of Ms Abraham’s mobile phone for the purposes of an investigation which had commenced in March 2014 into a suspected enterprise to bribe Iraqi officials to secure government contracts.

The “go-betweens”: Ms Abraham, Mr Jousif and Mr Al Zubaidi

It was the collective understanding of Ms Abraham, Mr Jousif and Mr Al Zubaidi that it would be necessary for the Elomars to pay a bribe to get a government contract in Iraq. On 9 April 2014 Ms Abraham spoke at length to Mr Al Zubaidi about the Elomars and the prospect of oil contracts in Iraq. She assured him, without any apparent justification, that Lifese would pay “the commission” (presumably a reference to a bribe). In the context of a discussion about their mutual frustration with advancing projects, Mr Al Zubaidi said:

“I'm trying to hurry things along, but as you know we're dealing with the government, you need to keep giving bribes to get anywhere. I have given away so many iPhones, that is how it is here. It is all out in the open. I will call the Ministry and will call you later.”

At around this time there were discussions between Ms Abraham and Mr Al Zubaidi about Mr Jousif’s alleged inadequacies in the course of which they implied that he was insufficiently sophisticated to deal with the Elomars. Despite their frequent disparagement of Mr Jousif’s capacity and intelligence, it appears that he was nonetheless important to their plan as he had contacts in Iraq and was an Iraqi citizen and had, on that basis, a right to enter Iraq. He was also responsible for transferring monies from Australia to Iraq, both for the bribe and for legitimate purposes.
Mr Jousif, Ms Abraham and Mr Al Zubaidi had a strong financial interest in persuading the Elomars to obtain government contracts in Iraq as their remuneration was comprised of commissions. Such commissions were a regular topic of discussion between them. For example, on 13 April 2014, Mr Al Zubaidi made it clear to Ms Abraham that his own commission arrangements would be worked out on the value of, not the profit made on, any given contract and advised her to do the same. On 14 April 2014 Mr Jousif told Ms Abraham that for every project he procured for the Elomars in Iraq, 25% would go to Iraq and “we will get 5%”. Ms Abraham often complained of her financial difficulties and was anxious to receive a commission as soon as possible. She chastised Mr Jousif for discussing other projects with the Elomars and urged him to concentrate on the drilling project to make sure that the Elomars went to Iraq.
On 3 May 2014 Mr Al Zubaidi explained to Ms Abraham that the Iraqis wanted to work with him because he understood “the system of commissions”. He told her that a number of international companies did not get the work because “they did not commit to the commission” arrangements. When Ms Abraham expressed concern that Lifese could not get bank guarantees, he assured her that, in effect, it could be worked out as long as the company was registered with the Ministry of Commerce and the Ministry of Oil.

Arrangements in 2014 for Lifese’s business in Iraq

In the first half of 2014 the Elomars continued to try to progress the establishment of business in Iraq. A draft project agreement was circulated. On 12 April 2014 Ibrahim authorised the transfer of A$20,000 from Lifese for its formation and registration in Iraq. On 16 April 2014 the Elomars, on behalf of Lifese, signed an Irrevocable Pledge by which it undertook to pay 25% of the value of drilling each well to a nominated Iraqi national, as fees for “advisory services” which was to become irrevocable after the signing of a contract between Lifese and “the Iraqi drilling company”. On 4 June 2014 the Elomars appointed Mr Al Zubaidi as the manager of Lifese’s regional office in Iraq. They continued to transfer funds to Iraq by depositing them into Mr Jousif’s son’s Commonwealth bank account in Australia. How at least some of these funds were transferred to Iraq will appear from later transfers.

The proposal of a trip to Iraq

On 13 April 2014 Ms Abraham told Mamdouh of the possibility of the Elomars being invited to Iraq in early May to negotiate a contract, as long as she could get the paperwork together.
On 9 May 2014 Ms Abraham told Mr Al Zubaidi that Mr Jousif was planning to take Ibrahim to Iraq. Mr Al Zubaidi informed her that he would entertain them but that he needed some proof of Lifese’s capacity to drill an oil well. The following day the Elomars left Australia again although not for Iraq. On 14 May 2014 Mr Jousif told Ms Abraham that he was going to Iraq the following week for about 30 days and would accompany the Elomars, who would be there for about ten days, to the Ministries and the oil refineries. As it happened the trip did not take place until August and Ibrahim went without Mamdouh, who could not travel because of an operation.

The partnership contract between Lifese and Al Rasheed

On 5 May 2014 Ms Abraham told Mr Al Zubaidi that the Elomars had agreed, in principle, to a partnership contract with the Ministry of Industry and Minerals and the Al Rasheed Company (Al Rasheed). She reported that the Elomars only wanted to do one job at a time and wanted to start with the drilling project.
On 8 May 2014, Mr Al Zubaidi sent an email to Mr Jousif and Ms Abraham which annexed a draft contract between Al Rasheed and Lifese for the construction of an oil refinery. The contract was subject to the approval of the Ministry of Industry and Minerals and stipulated that the value of the project was US$18 billion with a 5% commission. The commission was discussed between Mr Al Zubaidi and Ms Abraham.
On 14 May 2014 Mr Jousif told Ms Abraham that he had reported to Mr Al Zubaidi that the paperwork was ready and the company was registered in Iraq. Mr Jousif told her:

"[W]e want to check all the papers at the Oil Ministry. It will go to the committee.
The committee is 12 people, you know what I mean. We have people on the
committee ...”

Mr Jousif also told Ms Abraham that when he discussed setting up an office in Iraq the Elomars were suspicious because they had concerns about doing work for which they would not be paid.
Between 16 June 2014 and 7 July 2014 Mr Al Zubaidi and Ms Abraham continued to discuss the prospect of Lifese obtaining a drilling contract. On 27 June 2014 Mr Al Zubaidi told Ms Abraham that “the Ministry” needed to issue an invitation for them to come and negotiate, and that various administrative and financial matters had to be attended to before work could commence. He said:

“[T]he main thing is for them to come ... to send an invitation to negotiate and sign the contract, so that when they sign the contract they would receive a deposit payment. This is the most important thing”.

Further telephone interception warrants obtained by AFP

On about 3 July 2014 the AFP obtained telephone interception warrants for Mr Jousif’s and Ibrahim’s mobile phones and a continuation of the warrant with respect to Ms Abraham’s phone.

The proposal that a bribe be paid

Discussions regarding the bribe to which the Elomars were not parties

On 7 July 2014 Mr Al Zubaidi told Mr Jousif that it was necessary for “a payment” to be made before the Elomars would be invited to negotiate for the drilling contract but that if the company did not ultimately get the contract the money would be returned. It was not until over a month later that the Elomars learned that they would have to pay a bribe if they wanted to get a government contract in Iraq. Mr Jousif responded that it would be hard to make an upfront payment and insisted that no money would be paid until a contract had been signed. He told Mr Al Zubaidi: “Get Iraq to get it out of their mind. No one would pay money. You know that well.” Despite Mr Jousif’s statement to Mr Al Zubaidi, he appreciated that a bribe would be necessary. Indeed shortly after his conversation with Mr Al Zubaidi, Mr Jousif told Ms Abraham:

“Because they [the Iraqis] are like the mafia, they close one door and we find another door. They all want money ... everyone wants a share, want to eat...”

Mr Jousif confirmed that there were three to four people who wanted their money in advance. Once Ms Abraham understood that the “people” who were responsible for ensuring that the contract was signed by the relevant Minister would not do so unless they were paid, she said, "So, bribery”. Mr Jousif told her that it was “unsurprising” but the risk was worth it as there was a “lot of profit” to be made. He told her to keep the information to herself. Mr Jousif told Ms Abraham:

“We need to have security. Because you see the situation in Iraq is stuffed. Right? You hear it. We agreed to make it safe and secure properly. Each has a price. No one works for free.”

On 11 July 2014 Ms Abraham asked Mr Al Zubaidi whether he had seen the Ministry in relation to Lifese, to which he responded that the “Committee” had “asked for a price”.
On 17 July 2014, Mr Jousif told Ms Abraham that he would be meeting with Lifese the following day and confirmed that he would travel to Iraq with Ibrahim. Mr Jousif explained that a contract (or contracts) had to be signed with an Iraqi company which “has relatives as Ministers in the government . . . so all the initial processes will be taken care of”. He told her that the work could start once the contract was signed. When Ms Abraham expressed concern about her own financial position, Mr Jousif responded:

"They need money. Now we feed them and then they feed us. We feed them now in order to get the money and then we receive money - you know what I mean?''

Discussion of Mr Jousif’s proposed trip to Iraq with Ibrahim

On 18 July 2014 Mr Jousif informed Ms Abraham that Ibrahim would be travelling to Iraq on 2 or 3 August 2014. He told her of Lifese’s inability to get bank guarantees in Australia which would create problems with obtaining finance for projects in Iraq.
On 23 July 2014, Mr Al Zubaidi told Ms Abraham that he had arranged visas from the Iraqi Embassy for Mr Jousif and the Elomars and organised meetings with various Iraqi government entities and Iraqi companies, including the Oil Ministry, the Industry Minister and the Chief Executive Officer (CEO) of Al Rasheed.
On 26 July 2014, Mr Jousif told Mamdouh that the Ministry of Industry and a lot of companies (in Iraq) were waiting for them (Lifese). Mr Jousif also mentioned that he had heard from Ibrahim that the trip had been postponed. Mamdouh explained that they were worried about their safety in Iraq. Mr Jousif reiterated that “the Ministry of Industry is waiting” and referred to the prospect of an “immediate partnership contract with them”. They also discussed crude oil and refinery projects in Iraq. Mamdouh said that he had a Chinese friend who was interested in buying crude oil. I infer that this was a reference to Ming Lam, a Chinese business associate of the Elomars. Later that day Mamdouh called Ibrahim and told him that he had just spoken with Mr Jousif and suggested that Ibrahim go to Iraq as soon as possible “so that we can finish with this”.
On 31 July 2014 Mr Jousif informed Ibrahim that Mr Al Zubaidi had told him that their company had to be registered with the Oil Ministry before it could be given projects and that registration would cost around $21,000. Ibrahim passed this information on to Mamdouh whose response to the request for further money (with which Ibrahim agreed) was:

"No, no. Tell him that there is no money now. Because the cost might have been 5,000 and he made it more. Tell him we do not have money now. We will wait until we start working . . .”

The trip by Ibrahim and Mr Jousif to Iraq in early August 2014

Meetings with officials

On 3 August 2014, Ibrahim and Mr Jousif left Australia for lraq. At this stage, as far as the evidence revealed, the Elomars still did not know that they could only get government contracts if they paid the (as yet unquantified) bribe which had been discussed between Mr Al Zubaidi and Mr Jousif on 7 July 2014. Ibrahim, Mr Jousif and Mr Al Zubaidi met with the following Iraqi government officials: Waleed Abdulwahed Jaree, Director General of Al Rasheed (Mr Waleed, who may also be known as Mr Walid) at the headquarters of the Iraqi Ministry of Industry and Minerals; the Deputy Chairman of the National Iraqi Authority for Investments; and the Minister's undersecretary at the Iraqi Ministry of Industry and Minerals. Various projects were discussed at these meetings, including digging wells, laying oil pipes and the construction of a cement factory and a residential complex.
The Elomars continued to spend money in the expectation that Lifese would do business in Iraq. For example, on 7 August 2014 Ibrahim authorised the remission of A$22,640.00 (US$21,000) from Lifese's Commonwealth Bank Overdraft Cheque Account to a Commonwealth Bank account held in the name of Mr Jousif's son, apparently to register Lifese with the Ministry of Oil.
On 8 August 2014, Mamdouh (in Australia) told Ibrahim (in Iraq) that he had not seen “Ming” (Lam) and asked Ibrahim to find out whether they would be sold crude oil without a refinery. Ibrahim explained that it was necessary to partner with the government (of Iraq). On 10 August 2014 Ibrahim reported to Mamdouh that they were at the Ministry (of Industry and Minerals), would present some projects and, if the projects were ready, they would take them immediately. Ibrahim said:

“We can take the deal and pay later. You know?”

Ibrahim told Mamdouh to keep talking to a “Chinese man” (whom I infer was Mr Lam) “so that he can be in with us. I got the details ... we will think about it later”.

Ibrahim’s discussions with third parties about business in Iraq

Ibrahim spoke to various third parties about his plans to conduct business in Iraq. These conversations reveal Ibrahim’s contemporaneous knowledge and expectations: namely, that he expected to obtain contracts in Iraq. For example, on 7 August 2014 Ibrahim told someone named “Abu Omar” that he was in Baghdad and that he had had a few meetings with “a number of Ministers” and might sign “a number of contracts”. On 11 August 2014, Ibrahim had a telephone conversation with Matthew Ferris, a business associate whom he told that he had been in Baghdad for about a week and had been planning a three-year contract, with an option for a further three years with the Ministry of Industry and Minerals. Ibrahim also told him that he was leaving Iraq the following day (12 August 2014) for Abu Dhabi for a couple of nights to attend meetings there before returning to Sydney.
On the same day, Ibrahim had a telephone conversation with a person named “John” whom he told that the work would be with the Ministry of Industry and Minerals of lraq, which he described as a government body. Ibrahim told him:

“I'm going to sign a document and then they are going to put it through the Ministry. Once the Ministry, the Minister stamp it, it be accepted from that day. So they reckon another 3-4 weeks it should all be accepted and.... start looking at the tenders ...”

Ibrahim explained to John that the tenders came to the company and the government allocated a budget. The work would be offered to Lifese which would see if they could do it and, if not, it would go to another company. He mentioned, as an example, a treatment plant for rubbish recycling, for which the contract price would be about $1.25 billion.

The partnership contract

On 11 August 2014 (Ibrahim’s last day in Iraq), Ibrahim, Mr Jousif and Mr Al Zubaidi attended a meeting at Al Rasheed’s headquarters with Mr Waleed (Walid) at which Ibrahim signed a partnership contract between Lifese and Al Rasheed. Lifese’s minutes recorded that the contract would be forwarded to the board of Al Rasheed for certification; thereafter to the Iraqi Prime Minister's office for approval; and, finally, to the Minister for Industry and Minerals for confirmation.
The terms of the partnership contract required the parties (described as “the Ministry of Industry and Minerals represented by Al Rasheed” and Lifese) to act in their mutual interest in exploring opportunities for, and executing, engineering projects within Iraq. It was plain to the Elomars from this document and other conversations that Al Rasheed operated within the Ministry of Industry and Minerals and was therefore within the Iraqi government. To this end, Lifese was required to submit technical bids in relation to (as yet unspecified) projects which would be the subject of subsequent contracts. The contract was for a term of three years, could be extended by mutual agreement, and did not come into effect until the date of signing. The contract did not provide for the payment of any money as a condition of its execution, certification or registration.
On 14 August 2014 Ibrahim asked Mamdouh whether he had received an email that he had sent him which contained conditions for opening a refinery in Iraq, which he should forward to “Ming” (Lam). Mamdouh told him that he had not received it but Ibrahim could explain it when he got back. Mamdouh asked Ibrahim whether he was bringing plans back and Ibrahim said that they would be sent about four days later. Ibrahim then stated:

“they are all very serious you know ... where we have entered no one can enter ... if they are truthful and things go smooth ... we are laughing”.

Mamdouh replied:

“hope all good ... we have to take a risk ... what can we do ... we just need them to put 20 million in the pocket”.

Ibrahim also told Mamdouh that Lifese was looking for a house in Iraq to use as an office.

The return from Iraq and the request for money

Mr Jousif’s return

When Mr Jousif arrived back in Australia on 14 August 2014 his bags were searched and he was interviewed by a Customs officer. He was found to be in possession of documents relating to Lifese and Iraqi Government entities; the mobile phone which was the subject of the AFP intercept warrant; and the business cards of Iraqi government officials they had met. When interviewed by Australian Border Force officers, Mr Jousif said that he was working as a middleman for Lifese and his job was to secure contracts for them in Iraq; that while in Iraq he was having meetings with high profile and important members of the Iraqi Parliament including the Minister for Oil and the Minister for Energy; and that he had used his contacts to ensure Lifese would have a foothold in Iraq. He also told the Australian Border Force officers that the payment of money was required in order to meet with officials and win contracts in Iraq.

The request for $1 million

On 16 August 2014, Mr Al Zubaidi and Mr Jousif spoke about the fact that Ibrahim was concerned that Mr Jousif had been questioned at the airport and the consequent need to have a legitimate reason for travelling to Iraq. In this context Mr Al Zubaidi said:

" .... when the contract is signed a CEO will be present . . . a deputy Minister will certify it ... you then have to take a copy of the contract to the Iraqi embassy ... another copy will be sent to the Australian embassy in Iraq .. ".

They also discussed the need to send three different amounts of money, one amount “for the bank”, an amount “for the house” (Lifese’s office in Iraq) and an amount “for the people”. Mr Jousif told Mr Al Zubaidi that he had spoken to Ibrahim about it and Ibrahim had indicated that he would send the money “for the bank” when he returned. Mr Al Zubaidi responded:

"Listen Jenan get him to send the 20 [being for the bank] quickly via the changers ... get him to send the money for the people, the one that we agreed upon the million ... also to send 100,000 for the rent of the house and the furniture ... but the most important is to send the twenty .... send the twenty via the changers ... the 1 and the 100 send it to the bank".
[Emphasis added.]

This is the first reference in the evidence to a specific amount being required for the bribe. The evidence does not indicate that the Elomars knew of either the requirement for, or the amount of, the bribe at this time.

Concern about the availability of plans for the projects

Ibrahim became increasingly concerned about the delay in getting details of the plans for the projects. On 16 August 2014 Mr Al Zubaidi told him that they had been promised to them on “Sunday or Monday” and he would send them via an international courier (DHL). On 17 August 2014, Mr Al Zubaidi told Ibrahim that he had attended a further meeting where Mr Walid had explained that they would get the projects once the certification/endorsement, which was expected that week, was complete. Mr Al Zubaidi said:

“All I asked of you is to hurry with the financial issue so that we can get complete the certification with Walid this week. As maybe today or tomorrow it will get to the Minister”.

The Elomars’ discovery that a bribe was required and the logistics of payment

In the same call on 17 August 2014 Ibrahim told Mr Al Zubaidi that he was flying to Australia and that he would send “the money” on his return. Mr Al Zubaidi asked if Ibrahim could do it from Dubai and Ibrahim said that he could not because “The amount is big from Australia.” Mr Al Zubaidi intimated that it was urgent and told Ibrahim that Mr Walid had arranged for six projects including the waste project. I infer that Ibrahim was talking about the payment for the bribe (not the payment for the house) and that, by this time, Ibrahim knew that a bribe of $1 million was required. On the following day, Ibrahim reported the effect of this conversation to Mamdouh and asked him to get Mr Lam to come to the office on Thursday.
Despite the objections Mamdouh raised to paying a bribe when speaking with Mr Jousif (see below), it was at about this time or shortly afterwards that the Elomars became parties to the conspiracy to pay a bribe to an Iraqi official. Prior to this time, only Mr Jousif and Mr Al Zubaidi were parties to the conspiracy, which had been formed on 7 July 2014.
On 19 August 2014 Mamdouh spoke to Mr Jousif and said:

“Ibrahim just called me. How are they asking for money and we have nothing in our hand yet. I told my brother that I didn't agree. I will not allow him to send a penny until we see everything in hand'”.

Mr Jousif told Mamdouh that there are “things in Iraq that you need to know 100%”. Mamdouh responded that he had other projects that did not involve the payment of money and he would prefer to take those. He said:

“This friend is offering work for nothing in return. I prefer to take up this offer rather than have to pay ... If we don't have the official paper then no money will be sent. I told that to my brother from the start. I told him to go and meet and explore ... He won't lose anything by doing that.”

On 19 August 2014 Mr Jousif relayed the message to Mr Al Zubaidi that no money would be sent until Lifese had projects that they could consider. Mr Al Zubaidi explained that the Ministry’s position was that the contract needed to be signed and certified before projects could be given. Mr Al Zubaidi asked rhetorically how he could give projects to Lifese if it had not signed or endorsed the contract and said:

“The people need their money to complete the endorsement. Isn't that what we agreed with him?”

Mr Al Zubaidi told Mr Jousif that he had already explained to Ibrahim that no projects would be given until the contract had been endorsed. Mr Al Zubaidi said:

“ ... I told him: ‘Hajji [Ibrahim] when you sign an agreement and an endorsement is put in place then all the projects will be given to you at the moment no endorsement has taken place. The endorsement ... if no money is paid it will not be granted. We need to get money ready in Baghdad. Didn't we agree on this?’... The endorsement is issued and the money is handed to them. Because if the endorsement is issued and the money is not there then I am put in the compromise position... He needs to send money ...”

Mr Jousif and Mr Al Zubaidi discussed the waste management project, which was potentially worth $450 million, and the fact that Lifese wanted some paperwork to look over. Mr Al Zubaidi explained that Lifese needed to put a proposal to the Ministry as they had not done such a project before. He said:

“... we have explained that to the Hajji [Ibrahim] and you were sitting there ... Mr Walid explained and I explained. He needs to provide the waste as we have no have [sic] such projects done in Iraq ... Walid has given him the projects ... the waste recycle projects. We are awaiting the paperwork from him".

Mr Al Zubaidi explained to Mr Jousif that the waste management project had been given to Lifese before the signing of the contract as a means of proving “credibility”. He continued:

“The contract was signed, the administration committee has agreed on it yesterday or the day before ... So they submitted it to the minister. The minister said ‘Where is mine?’ They asked me and I told them he [Ibrahim] is still in Dubai. He said ‘We are getting delayed’ I told them that he would get there and John would take care of things and we'll send it by a money changer and not through the bank so the process does not take long...”

In relation to the withdrawal of money Mr Al Zubaidi told Mr Jousif to tell Ibrahim to relax as there is “heaps of work waiting for him. Work is waiting in Karaamah and the oil is waiting ...” Mr Jousif said that Ibrahim was all right but that his elder brother (Mamdouh) was “a bit hesitant, he pulls the strings".
On 19 August 2014 Mr Jousif told Mamdouh that he had spoken to Mr Al Zubaidi and continued:

“This is a guaranteed job. All your rights are guaranteed ... everything is done according to the law”.

Mamdouh said that he had no doubt about that but added:

“to send money when we have nothing in our hands is not very good”.

Mr Jousif responded:

“... trust me. When the money is received it will not be touched until the project start working. When the project starts only then the money will be taken out. That is what we agreed upon ... Myself and [Mr Al Zubaidi] are going to be responsible for your rights ... don't worry…”

Mamdouh told Mr Jousif that he would speak to Ibrahim when he returned (the next day).
On 19 August 2014 Mr Al Zubaidi told Mr Jousif:

“[T]he main thing is for you to note down the points that you want to discuss in the meeting with them [the Elomars]... you need to make sure to discuss the following main points: finishing the partnership agreement, the money, the receipt and the house ... concentrate on the Waste Recycling”.

Ibrahim’s return from Iraq on 20 August 2014

On 20 August 2014, Ibrahim returned to Australia via Dubai. At Sydney airport, he was subjected to a full baggage examination. He told a Customs officer that he had travelled to Iraq for business purposes; had met with senior officials in the Ministry of Industry and Minerals and the National Investment Commission; and that he had been successful in relation to the tender for a waste management project.
In addition to the mobile phone which was subject to AFP interception, Ibrahim was also found to be in possession of business cards for various Iraqi government officials whom he had met. The documents in his possession included the partnership contract in Arabic, which Ibrahim had signed, and an English translation.
On 21 August 2014, Mamdouh left Australia for Hong Kong. Mr Lam was on the same flight. That day Mr Jousif, Ibrahim and Mr Al Zubaidi had various telephone conversations. In the morning Ibrahim told Mr Jousif that Mamdouh was angry; Mr Jousif responded that Mr Al Zubaidi said two or three projects would be coming. They agreed to meet the following day.
That afternoon Mr Jousif told Mr Al Zubaidi that he would be meeting with Ibrahim the following day and that he had spoken to the money remitter about sending money to Iraq. The money remitter had informed him that there was no problem with sending the money, but he would need to see Ibrahim to see what “they want to do”. When Mr Al Zubaidi informed Mr Jousif that he was hoping to receive some documents relating to the projects that day, Mr Jousif told him that the Elomars “desperately” wanted to see the documents. When Mr Al Zubaidi said that he might call Ibrahim, Mr Jousif warned him that he should not “mention anything about the money”. Mr Al Zubaidi agreed and confirmed that the financial side was for Mr Jousif to deal with. He said:

“this is your mission, this is how we work. We decide on the amount and you do the transfers”.

Also that afternoon, Ibrahim had a telephone conversation with an unknown person whom he told that work in Iraq was looking good, that the Ministry wanted to sign with them and that they were waiting for the Ministry stamp, which was coming the following week. He said that once they got that document the Ministry would give them the proposal, which was a treatment plant for recycling their rubbish which would cost around $250 million. Ibrahim said, “so they got money ... they just need someone experienced”. Later in the call, Ibrahim asked the person to help him to sort out the situation as he needed to rent an office, buy a car and furniture and employ people. He expressed some concern and explained that he would go and see someone in the “Foreign Office” about it and tell them what they were doing as he did not “want to be ... under the pressure of smuggling”.
I infer from this conversation that Ibrahim had overcome whatever objections Mamdouh had raised and that they were both working, with Mr Jousif and Mr Al Zubaidi, to progress the conspiracy.

Discussions about the transfer of money from Australia to Iraq

The next stage of the narrative is redolent with discussions about transferring the bribe monies to Iraq and giving them an appearance of legitimacy. This task was difficult because of the prohibition on transferring money from Australia to Iraq. The offenders are not, however, to be punished for breaching the prohibition: the only offence for which they are to be sentenced is the offence of conspiracy to which they have pleaded. These discussions are presently relevant because they show that the offenders gave considerable deliberate and strategic thought to the act of transferring the money pursuant to the conspiracy.
On 22 August 2014 Mr Jousif told Mr Al Zubaidi that the money would not be sent until the following week. Mr Al Zubaidi complained that it was taking “too long”. Mr Jousif responded: “I know but we're talking about large amount”. Mr Jousif asked for receipts. When Mr Al Zubaidi queried this request, Mr Jousif indicated that they needed a receipt to explain why they were sending money to Iraq. Mr Jousif said that an official letter should be issued for establishing a company and buying equipment. Mr Al Zubaidi said that he would produce invoices which Mr Jousif confirmed had to be in a company's name. Mr Jousif told him to make the invoices to Lifese total $1.5 million and asked him to send the invoices as soon as possible so that “they can freely transfer the money and no responsibility on us.” Mr Jousif asked Mr Al Zubaidi to send copies of the receipts that day and Mr Al Zubaidi said that he would see what he could do.
At 10.46am on 22 August 2014 Ibrahim told Mr Ferris that he had been in Iraq for ten days and returned via Dubai, where he had spent another ten days. Ibrahim said that the trip was “very good”. He explained that the Ministry of Industry owned seven companies and that every time a contract came up they gave it to one of those companies but that if they could not do it they put it out to tender. Ibrahim told Mr Ferris that he had signed a “mini contract” with the Ministry and accepted their conditions and had asked that they send out some tenders, including for a project for recycling rubbish which was worth about $250 million. Ibrahim also told Mr Ferris that Lifese was concentrating on Iraq as “this will come true, definitely” and that his “boys” were looking for an office there and that they had found a two-storey house with four bedrooms. He told Mr Ferris that if Iraq “came through”, they would need to set up a good team of people. Mr Ferris warned Ibrahim not to have too many “ex-pats” on the team as it would become too expensive. Ibrahim responded that it would not be necessary as they would be working with the government and they had a lot of people.
That evening Mr Jousif spoke with Ibrahim about sending the money for the house/office (which Mr Al Zubaidi had requested be sent immediately). Ibrahim told him he would need some time to consider how to send the money and he was waiting for Lifese’s accountant (Mohammed Ahmed) to get back to him about it. Ibrahim stressed the need for documentation to explain the transactions and instructed Mr Jousif to get the invoices. Ibrahim distinguished between the money being sent for the house and the “other” amount (for the bribe). He said, of the latter:

“It needs a week or two ... we will see how we are going to do it as the amount is big it is not a small amount … The amount is big. We are working things out from here. We are trying [to] see how to do it.”

Mr Jousif told Ibrahim, in the same sentence, that he should take his time but it was not to his advantage to delay. He warned Ibrahim as follows:

“If they blacklist a company in Iraq this company will never work there ever again. I know how these Iraqis work. So many companies did that and were blacklisted.”

Ibrahim told Mr Jousif that the main problem was finding a way to send the money “from here to there”. Mr Jousif told him that he would get him an invoice for $1.5 million. Mr Jousif continued:

“It is all legal. All the equipment is physically in Iraq ... I will call [Mr Al Zubaidi] now and get him to pay the money. Because I know that you want to work. You have aspiration to work.”

Ibrahim assured Mr Jousif that he did not want Mr Al Zubaidi to be put “in a compromised position” and did not want to “create a problem for him”. He instructed Mr Jousif not to do anything further as he needed to talk to Mamdouh.

The conversation between Ibrahim and Mr Lam on 23 August 2014

On 23 August 2014 at 11.41pm, a person called Mundi used Ibrahim's phone to call Mr Lam and then passed the phone to Ibrahim, who said:

"Now Mr Ming [Lam], the Iraqi government will give us land, free land and also will give us a discount for selling the oil.”

Ibrahim explained the pricing and rough profit share on the oil production before telling Mr Lam that he went “there” (Iraq) to drill oil wells, of which there were 25. He and Mr Lam discussed oil rigs and the specifications. Mr Lam told Ibrahim that he already had a rig and that they could start “tomorrow”. Ibrahim responded:

“I got some paperwork from the government what the rules are you know so we can get to to the ... before we go ahead, but the stuff is ready, the land is ready, I just have to go and meet with them and make up our mind, yes it is goer, you know?'”

After some further discussion about specifications relating to the rig, Ibrahim said:

“This, we have a big opportunity there, but we need to spend some money upfront you know.”

Mr Lam told Ibrahim that this was why he was flying to China and a person called “Nick” would fly there on Monday. Ibrahim then referred to Nick having gone to Dubai and back on Sunday after which he said:

“It's okay we put you back to Mundi but we need to move quick because we got very good opportunity there with the departments of the government there.”

Ibrahim passed the phone back to Mr Mundi, with whom Mr Lam discussed the need to pay upfront, Nick and some letters of credit. Mamdouh then explained to Mr Lam:

“This is for the money, better if we can send them from China or Hong Kong to this people. You understand? ... If we can make it, you understand up to the 1.2 million American would be good ... if we can send it from there if you know what I mean ... It has to be quick. Either we have to send it from China or there better than Australia you know”.

Mr Lam indicated that he needed to make a couple of phone calls. Mamdouh responded:

“Okay, thank you my friend, listen, listen, Ibrahim says, if you want to see the contract, you can you're most welcome to see the contract. We'll show you the contract”.

Mr Lam indicated that he trusted them and he just needed the rig size and noted that Ibrahim would send him the email anyway. Mamdouh replied:

“Okay, this thing has to be super fly, you know what I mean?”

Further conversations on 23 August 2014

Later on 23 August 2014, there were further conversations between Mr Jousif, Ibrahim and Mr Al Zubaidi about the transfer of money to Iraq.
Ibrahim told Mr Jousif that everything was “okay” with the house and that they were still trying to see how to give the money to him but that he should have it by the middle or the end of the following week. Ibrahim then said:

“In relation to the other ones, the big ones ... Can they come ... because we can get them to Hong Kong. We can give it to them in Hong Kong.”

Mr Jousif responded:

“Okay, whatever you wish. The receipts will be forwarded to you now ... whatever you see fit”.

Ibrahim replied:

“I was thinking that if they come ... the minister and the other one that they want. If they come personally to Hong Kong and we give it to them over there, then it might be better ... This is one idea. I was thinking if that works for them then talk to them. Maybe we get them to Hong Kong and no one would know anything about it ... This is one proposal ...”

Ibrahim told Mr Jousif that he might want to wait before telling anyone about it as they might think of another way of transferring the money.
Later in the afternoon Mr Al Zubaidi told Mr Jousif to confirm the Hong Kong option with Ibrahim. Mr Al Zubaidi said that although it was “ok” to do the transfer from there, if it was proposed that someone travel there it could cause delays due to the need to organise visas. Mr Jousif reported to Ibrahim what Mr Al Zubaidi had told him.
At 5.04pm, Mr Jousif and Ibrahim spoke about documentation being sent to Lifese in relation to the projects and the option of meeting people in Hong Kong. They also discussed various options for sending money, including sending it directly to Mr Al Zubaidi or sending it to a bank account. Mr Jousif suggested the direct method would be faster and that sending it via a bank account would cause delays.

Conversations on 24 August 2014

On 24 August 2014, at 3.40pm, Ibrahim spoke with Mr Al Zubaidi, who told him that he had sent documentation regarding various projects via DHL. They discussed the available methods of transferring the money, including using a money changer and the “Hong Kong option”. During this part of the conversation Ibrahim said:

“This is an option and we are enquiring about it with an agent. They are very strict in Australia, they want to know that it is not going to terrorism. We need to explain to them.”

Mr Al Zubaidi asked Ibrahim to “work on the issue for the ministry so that we can finish from it”. When Ibrahim assured him that he would do it as soon as possible, Mr Al Zubaidi asked him to “finalise it this week”.
A few minutes later Ibrahim spoke with Mr Jousif to tell him that he had just spoken with Mr Al Zubaidi. Ibrahim said:

“this week . . . we’II start sending money for the house and for opening a bank account, we will see what we will do with the other ones. Either Hong Kong, I will see how to send it to them.”

Preparation for the transfer of funds

On 25 August 2014 Mr Jousif made enquiries about the exchange rate for converting A$ into US$1 million. He told Mr Al Zubaidi that he would be sending the money via money changers and not the bank as they did not yet have an account and that he would get the money the following day or the day after.

Ibrahim’s confidence relating to the business opportunities

Ibrahim continued to express his confidence to others about Lifese doing business in Iraq. On 26 August 2014, Ibrahim told a business associate, that he had almost signed a contract with the Minister of Industry and Minerals. He told his associate that he was waiting for the Minister to stamp the contract and once that was done he would have an exclusive working relationship with a company (or several companies) owned by the Ministry and he would be able to provide his estimate to them for their projects instead of having to go to tender.

Discussions on 27 August 2014

On 27 August 2014, Mr Ahmed told Ibrahim that they could not send money directly from Australia to Iraq because of sanctions. They discussed sending the money via another Middle Eastern country, including Lebanon where Ibrahim “had a company”. Ibrahim asked him to call him back after lunch with a solution.
Mamdouh told Mr Jousif that he was waiting to receive the money. Mr Jousif told him not to worry but warned that it was not to his advantage to delay as there was going to be change of government and “when another Minister comes to power he might ask for double on these amounts. You don't know”. Mr Jousif also told Mamdouh that Mr Al Zubaidi had been put in a compromised position (by the delay) and there was a risk of being black-listed. Mamdouh asked where the documentation in relation to the projects was and Mr Jousif replied that it had not yet been received. Mamdouh said:

“Now John [Jousif] ... Big risk now because we don't know what we want to do”.

Mr Jousif responded as follows:

“There is no risk. I am with you. Don’t be scared about a risk. I will get it out of their eyes…. there is no risk. Honest to God. Haji [Ibrahim] saw for himself. There is no risk. Companies are getting in. The other day a British company went in and went to Arbeel and will be heading to Baghdad from there. So companies are going in … I don't know why you are delaying. I don't know. You got refineries for oil and you got the best location in Karkouk. That is where the oil is. Hajji [Ibrahim] has spoken to them in the oil investment board. We sat in their office in the green zone”.

Mamdouh told Mr Jousif that he would let him know in the next few days when he would get the money, to which Mr Jousif replied:

“Yes please. Let me know so that I can delay them ... because the government will change and this is not to our advantage ... apologise for putting pressure on you ... If I give them guarantees and then not pay they will suffocate us.”

Mamdouh again told Mr Jousif that he would let him know either on Saturday or Sunday and that he just needed to get the money. After this conversation Mamdouh spoke with Ibrahim and asked Ibrahim how much money he had in their company. Ibrahim replied:

“We have a million and a bit, and I think we have around a million over there”.

That afternoon, Ibrahim told Mr Ahmed that he thought the safest way was to give the money to Mr Jousif and get him to send it himself as he had done it before. Mr Ahmed added that Mr Jousif had confirmed that it was not possible to send money to Iraq via banking channels.
That evening Ibrahim told Mr Al Zubaidi that they had a problem as the Australian government had banned the sending of money to Iraq. Mr Al Zubaidi responded that Mr Jousif had someone waiting who could transfer the money. Ibrahim replied:

“It's not what you think. If we want to take money out from the company then they need to know where the money is going to and if we don't have the contract with this person ... it needs a bit of work.”

Ibrahim asked Mr Al Zubaidi to be patient. He explained that the invoices were not helpful as they were from Iraq and the (Australian) government had imposed a ban on sending money to Iraq. I infer that the invoices spoken about were those dated 20 August 2014, which were made out to Lifese from “Al Saf Engineering, Petroleum Services, Al Mansoor, Baghdad, Iraq”, in the sums of $1,626,000 and $1,650,000 and said to be for the sale of “industrial equipment”. The invoices were found at Lifese’s premises when the search warrant was executed.

Conversations on 28 August 2014

On 28 August 2014 Mr Al Zubaidi told Mr Jousif that Ibrahim had told him that he needed another seven days for Lifese’s accountant to sort it out, and he had said to Ibrahim “ ... it is urgent Hajji [Ibrahim] I don't want to be put in a compromise[d] position”.
After this conversation Mr Jousif spoke with Ibrahim, who explained that they could not send the money directly to Iraq and that it would be better if Mr Jousif gave them an invoice and sent the money himself. Ibrahim explained to Mr Jousif that they needed to sort out the problem with transferring money to Iraq and that he could get into trouble for doing so. Ibrahim told Mr Jousif that he was not as concerned about sending money for the house (which he would talk to Mamdouh about), as he was about how they were going to deal with money transfers in the future. Ibrahim then said:

“What we are thinking is that now we can give you money and you can smuggle it to there.”

Ibrahim said that he was going to see Lifese's accountant the following day to discuss the transfers of money to Iraq.
In the evening of 28 August 2014 Mamdouh spoke with Ibrahim and commented that “the Iraqis” were giving Ibrahim a hard time. Ibrahim explained that he had told them that he could not send the money now, that he was being asked to send it bit by bit, and that he would probably have to send the rent for the house soon. He said that Mr Jousif would give them an invoice and he would send the money to them. Ibrahim then asked whether anything had happened in relation to a “Chinese man” and said:

“We would make him a partner with the Iraq ... and give him a portion. Talk to him to get the one million dollars for the house. You know what I mean”.

Mamdouh said that it would not be a problem as they would involve this person in an investment and “give him a portion” as “all the money is from him”. Ibrahim responded “ye, we will sort him out, not a problem”.

Conversations on 29 August 2014 concerning the transfer of money to Iraq by Mr Jousif for Lifese’s house/office in Baghdad

On 29 August 2014, Mr Jousif spoke to a money remitter about the exchange rate for sending US$100,000 to Baghdad for Lifese’s house in Iraq. When the money remitter asked Mr Jousif “what happened with the other amount?” Mr Jousif replied that there had been some changes and the Australian government had stopped it. Mr Jousif then called Mr Al Zubaidi to ask where the money should be sent and an address was provided. Mr Al Zubaidi also asked “What about the other one [payment], when are they sending that?” Mr Jousif told him that it would be some time during the following week.
Mr Jousif contacted the money remitter again and agreed that A$109,000 equated to US$100,000. Mr Jousif advised that the funds needed to be in Baghdad either that day or the next. The money remitter assured him that the money would arrive in Baghdad in half an hour. Mr Jousif then rang his son to tell him that A$109,000 would be deposited into his account. When his son asked why he was not depositing $1 million, Mr Jousif told him that that would not happen until the following week. At 2.27pm A$109,000 was transmitted from Lifese's Overdraft Cheque Account to the account of Mr Jousif’s son.
At 2.43pm, Mr Jousif had a telephone conversation with an unidentified person whom he had met in Amman and told him that he wanted to send US$100,000 to Baghdad. The other person informed him that he would look after him with a price and help him transfer it. Mr Jousif discussed the transfer separately with Lifese’s accountant and with his son. As there was a limit on the amount that could be transferred per day, A$100,000 was transferred on 29 August 2014 and a further A$9,000 was transferred shortly thereafter. It was not suggested that this money was intended to be a bribe but its means of transfer is significant because a similar means was used for transferring the money for the bribe.
At 4.36pm on 29 August 2014 Mr Jousif confirmed to Mr Al Zubaidi that the money had been sent to a money changer in Baghdad near him. Mr Jousif told him that he just wanted to “finish it” because he knew how they worked and that they were being monitored. Mr Al Zubaidi then told Mr Jousif that he just wanted to “get the $1 million” so that they could receive the contract. He said: “The contract is done. It is done, signed and endorsed.... So when we receive the million, I will give it to them. I will get the contract and prepare an official letter. We also guaranteed 4 or 5 projects”.

Conversations and communications on 30 August 2014

On 30 August 2014 Ibrahim told Mr Jousif that the documents which had been delivered did not contain anything relating to the waste management project. Ibrahim told Mr Jousif that he needed more detailed documentation as “So far we have nothing it is all talk”. Mr Jousif responded “Okay, they have been waiting for the large amount.”
Shortly after that conversation, Ibrahim rang Mr Jousif and told him that he had just spoken with Mamdouh who said that he wanted to “stop everything” as he was very unhappy that “they won't send us projects to study”. Ibrahim referred to the fact that Mr Jousif had been present when Mr Walid had said that he would give them projects to consider. Ibrahim complained that they had been waiting 10 days and nothing had arrived. Ibrahim then said “we are wasting time now and they are pressuring us they want the money”. Later in the same call Ibrahim said “we have sorted out everything ... We have registered with the oil over there ... We sent $100,000 yesterday ... If they are going to behave this way then we don't want this”. Mr Jousif said that he needed about an hour to follow-up the papers and would get back to him.
Mr Jousif then rang Mr Al Zubaidi and informed him that Ibrahim was angry as he had not received the specifications for the waste management project. Mr Al Zubaidi told Mr Jousif to explain to Ibrahim that they needed Lifese to provide the specifications as this was the first time that such work had been done in Iraq. Mr Jousif asked how they had known that the estimated price of the job would be $450 million. Mr Al Zubaidi said that the amount had been arrived at on the basis of proposals submitted by four other companies. Mr Jousif told Mr Al Zubaidi that the Elomars had become hesitant about sending any money. Mr Al Zubaidi reminded Mr Jousif that a contract had been signed and said that he would call Ibrahim.
Mr Al Zubaidi rang Ibrahim, who told him that the documentation did not contain sufficient details for him to study the project properly. He said that he and Mamdouh were getting fed up. Ibrahim asked Mr Al Zubaidi to send him one of the proposals that one of the other companies had submitted and said that, without it, Lifese would not be able to price it. During the call, Mr Al Zubaidi stated “hopefully tomorrow your contract will be certified, it will come from the Ministry” and would be sent to Mr Walid. Mr Al Zubaidi went on to explain that he had been speaking to someone from the Ministry, “Mr Haidar”, and he had explained to that person that, as a result of processes in Australia, the money would not be transferred until “Sunday, Monday or Tuesday” (1-3 days later) and that person had said “We are waiting”.
A few minutes later, at 2.23pm, Mr Al Zubaidi rang Mr Jousif and told him that he just spoken to Ibrahim. Mr Al Zubaidi said that, while he could try and delay them and ask for more time, there was a risk that if the money was not paid he, Mr Jousif, and the Elomars would all be black-listed and not be able to work in Iraq again. Mr Al Zubaidi asked Mr Jousif to keep following up with Ibrahim and tell him that if the money was not paid he (Mr Al Zubaidi) would lose “a million”.
At 4.11pm, Mr Jousif spoke with Ibrahim who related that Mamdouh had told him not to send anything and to hold off until Monday (2 days later) as they were both unhappy about the lack of detail and specifications which meant that they could not properly price the project(s). Mr Jousif tried to reassure Ibrahim that more detailed documentation would be provided and mentioned various oil-related projects. However, he repeated what Mr Al Zubaidi had told him about the potential for being black-listed. Ibrahim indicated that although he was serious about the work, as far as he was concerned, he had fulfilled his obligations, and if they did not want to fulfil theirs he did not want the work anymore.
After this call, Mr Jousif rang Mr Al Zubaidi and asked him to explain how the project would work. Mr Al Zubaidi instructed Mr Jousif to tell Ibrahim that once the project was allocated Lifese would receive an instalment payment at every stage of the project. Mr Al Zubaidi stressed that Mr Jousif should tell Ibrahim that “You won't need to pay anything from your own pockets. All is required of you is experience, technology and designs.” At the conclusion of this call, Mr Al Zubaidi told Mr Jousif that he would be receiving documentation in relation to a chlorine factory, and if there was anything missing, they could take it up with “Abu Karrar”.
At 4.42pm, Mr Jousif told Ibrahim that Mr Al Zubaidi had an appointment with “drilling people” in relation to specifications and would be sending plans for a chlorine project. Ibrahim insisted that he needed more specific documentation to put Mamdouh's mind at rest since he was “very angry”. Mr Jousif sought to placate him by assuring him that once they received their project they would receive instalment payments and would not have to “pay any more”.
At about 9.30pm on 30 August 2014, Ibrahim received an email (in Arabic) from Mr Al Zubaidi reminding him to send “the amount agreed upon” so that he would not “feel embarrassed in front of the people”.

Communications on 31 August 2014

On 31 August 2014 Ibrahim forwarded this email to Mamdouh's email address, and on 1 September 2014, he forwarded it to Marwan Hassan of Lifese.
On 31 August 2014, Mamdouh told Ibrahim that they needed to see Mr Lam who would be arriving from Melbourne around 4.00pm. That afternoon Ibrahim spoke with Mr Al Zubaidi who, during the call, transferred the phone to Abu Karrar who told Ibrahim that he and Mr Al Zubaidi had just left the Ministry. Abu Karrar explained to Ibrahim that they had been put in an awkward position at the Ministry in relation to the money and added that they needed to “... finish the contract issue before the change of Ministry ... because we have agreed with this Minister. They do not know how much the new Minister will ask for”. Ibrahim indicated that he was aware of the imminent change and again confirmed that they would send the money within a week.
The phone was handed back to Mr Al Zubaidi, who told Ibrahim that he had received the money for the house. He added that things were becoming very “awkward” with the Ministry. Ibrahim told Mr Al Zubaidi that he hoped to send the money the following Wednesday (3 September 2014) and that he was speaking to Mr Jousif about it.

Communications on 1 September 2014

On 1 September 2014 Ibrahim told Mr Jousif that he had spoken to Mr Al Zubaidi and Abu Karrar the previous day and that he had looked at some documents that they had sent. He commented: “it is all to do with investments. Meaning that you have to pay money upfront before starting work”. After Mr Jousif confirmed that this was correct, Ibrahim said, “we don't want to work like this, okay ... We can't put money now, who has money to put in now ... What was discussed is that we work with [Al Rasheed] ... They have projects and we execute them”. Mr Jousif asked if he could see Ibrahim in person instead of talking over the phone as there would be “less confusion”. They agreed to meet at 2.00pm.
At 1.12pm, Mr Jousif rang Mr Al Zubaidi and told him that he was going to see “them” so that he could understand what was going on. Mr Al Zubaidi said: “He has put me in trouble ... He gave me his word. We have to pay the money”. After referring to the conversation that he and Abu Karrar had had with Ibrahim the previous day, Mr Al Zubaidi asked Mr Jousif to tell Ibrahim that he and Abu Karrar would “eat shit” and would have to “fork out $1 million” if the money was not paid. Mr Al Zubaidi again emphasised with Mr Jousif that it was “paramount to pay the money” in the next couple of days as the Minister would be replaced and the person who took his place might ask “for a large number”.
At 2.44pm, Mr Jousif rang Mr Al Zubaidi, placed his mobile telephone on speaker and told Mr Al Zubaidi that he was with the Elomars. Mr Jousif said: “They said we would send the money now”. At the end of the call Mr Al Zubaidi explained to Ibrahim that he had been speaking with “Mr Walid” the previous day and that he had said (referring to Ibrahim):

“When he finish officially I will give him project officially. I will give him project officially, until now he is not my partner yet as he hasn't completed the processes.”

At 4.27pm, Mr Jousif spoke with Mr Al Zubaidi who asked him “what was wrong with them? Did anything happen?” Mr Jousif explained that “someone has put in their heads about another company who gave money and there was no work . . . in Basra. So I tell them that it is different through us . .. that is why they were hesitant”. After Mr Al Zubaidi explained that their work was different because it involved “a partnership contract. . . with the Minister”, Mr Jousif said that they would receive the money on Wednesday (meaning 3 September 2014) and he had “their word” the money would be ready. He said that the Elomars would use him to transfer the money and that he might receive the whole amount instead of just “500”.
At 4.41pm, Mr Jousif had a further telephone conversation with Mr Al Zubaidi. They discussed their preference for having the whole amount transferred at once. Mr Jousif asked how and when he should take his own portion. Mr Al Zubaidi responded: “no if he gave you the million then take yours, 50. If he gave you 500 then send the whole of the 500. So that we can give the guys and finish with them. We can wait for the next lot.” They also discussed the possibility that Mamdouh might visit Iraq as Mr Jousif wanted him to see the oil refinery which Ibrahim had already seen. Mr Al Zubaidi asked "So, do they want the refinery or not?” Mr Jousif confirmed that they did but needed to talk to their partners. Mr Al Zubaidi said:

“[L]et us finish with the first job ... the main thing for us is to receive the money”.

The transfer of the money for the bribe to Iraq by Mr Jousif on behalf of the Elomars

Communications on 2 September 2014

At 11.07am on 2 September 2014 Mr Jousif rang a person named Yassin and asked him to check the cost of transferring US$950,000 to “there” (to Iraq). Yassin told Mr Jousif that he would get back to him with an offer. Mr Jousif said, “don't call me, I will see you when you come ...I don't want to say more on the phone”. At 12.35pm, Yassin rang Mr Jousif and told him that the price of transferring US$950,000 was A$1.045 million.
At 8.28pm, Mr Al Zubaidi asked Mr Jousif whether he had received the money yet and Mr Jousif advised that he was “waiting for them to call me before I go”. Mr Al Zubaidi instructed Mr Jousif to take the money from Ibrahim and keep it with him.
At 8.34pm, Mr Jousif told Mr Al Zubaidi about the logistics of the transfer. At 9:03pm, Mr Jousif sent a text message to Mamdouh's phone which said “Hi, what's the name of the restaurant, in the area.” At 9.07pm, Mr Jousif rang Mamdouh and said, “I am here, I am close to Rusha's”. Mamdouh responded, “Go inside and sit there, I am inside”. I infer that when they met, Mamdouh gave Mr Jousif at least A$1,035,000 in cash.
At 11.08pm on 2 September 2014, Mr Jousif rang Mr Al Zubaidi and said “green light”. Mr Al Zubaidi asked “Did you take it?” Mr Jousif answered “yes”. Mr Al Zubaidi told Mr Jousif that he would send him the details of someone who would transfer the money. Mr Jousif indicated that he had received “a full one”. Mr Al Zubaidi instructed Mr Jousif to take $45,000 and give $15,000 to the money remitter for the transfer fee and that the balance would be $955,000.
At 11.22pm, Mr Jousif spoke with Mamdouh on the telephone. At the beginning of the call Mamdouh told Mr Jousif not to say anything on the phone. Mr Jousif told Mamdouh that he needed to speak to him and Mamdouh told him to come to his house the following day.

Communications on 3 September 2014

At 12.19am Mr Jousif told Mr Al Zubaidi that he had to transfer the money in his own name and that he had to provide identification.
At 7.47am that morning, Mr Jousif rang Mamdouh to tell him that he was coming to see him at home and that he was on his way. Later that day, Mamdouh visited Mr Jousif at his home, apparently for the first time as Mr Jousif stood outside waiting for him so that he would know where to go.
At 1.38pm Mr Jousif spoke with Mr Al Zubaidi who asked him whether he had received “them” from Ibrahim. Mr Jousif confirmed that he had and could count “them”. Mr Jousif then indicated that he did not want to talk about it on the phone. Mr Jousif said that he wanted to get it over and done with as quickly as possible.
On 3 September 2014, between 2.23pm and 4.59pm, Mr Jousif had three telephone conversations with a person named Yassin about transferring the money to Baghdad. Yassin told him that the money would get to Baghdad that day. Yassin told Mr Jousif that they could deliver “the 500” that day and the rest the following day. Yassin told him that the rates had changed. On a number of occasions during these calls, Mr Jousif indicated that he did not want to talk on the phone.
At about 5.30pm on 3 September 2014, Mr Jousif and another male entered BRESM Money Transfer in Auburn (BRESM) carrying a large black nylon bag. The main business of BRESM was the transfer of money (in US dollars) from Australia to Iraq. Mr Jousif told Mr Alhamdani, the proprietor, in Arabic that he had money to send to Iraq as a donation “to help the Christian people of North Iraq”. He said that it was not his money as he had collected it from many people and asked that it not be sent in his name and that it be transferred “cheaply”. Mr Alhamdani and his assistant counted the money, which was in $100, $50 and $20 denominations, with a money machine. They counted a total of US$980,000, US$80,000 of which was set aside for Mr Jousif. Mr Jousif said that he would bring more money the following day.
Mr Alhamdani told Mr Jousif that he could not send money without identification and that if he did not want it sent in his name he would have to produce additional identification. He also told Mr Jousif that if he did not bring other identification documents the following day, he would transfer all of the money in Mr Jousif’s name. Mr Jousif handed over his driver licence to Mr Alhamdani. It was photocopied and endorsed with Mr Jousif’s phone number and the date. Mr Jousif instructed him to send the money (US$900,000) to Mr Al Zubaidi in Baghdad and provided the details. Mr Alhamdani made a record of the transfer in a ledger. Mr Jousif told him that when he returned the following day he would have more driver licences and he would bring an additional amount of money to be sent the following day.
Mr Alhamdani called a Baghdad phone number and told the person who answered that US$900,000 was being transferred. He remitted the US$900,000 to Iraq as instructed by Mr Jousif but did not record the senders' details until the following day.
At 5.55pm on 3 September 2014, Mr Jousif reported to Mr Al Zubaidi that he was in the office with the money remitter who wanted to take a copy of his licence in case there were any inquiries later. Mr Jousif said that he did not want to do this as he would be “in trouble” and that “the spot light” would be on him. Mr Al Zubaidi told him:

“there is no problem ... you have invoices... I have sent you invoices ... what is the matter with you. I will make you invoices for the factory”.

Mr Jousif confirmed that he knew about the invoices but insisted “Here cashes are not allowed ... cashes not allowed”. Mr Al Zubaidi advised him to trust the money remitter. Mr Al Zubaidi told Mr Jousif that he should not “pay the commission” in Australia but that he should “take 45 and send the rest” and he would pay the difference in Baghdad. Mr Al Zubaidi emphasised the need for urgency. Mr Jousif then passed the phone to the money remitter who confirmed with Mr Al Zubaidi: “money is ready today. You are able to receive it in an hour”.
At 6:39pm, in a separate telephone conversation, Mr Al Zubaidi asked Mr Jousif whether he had finished. Mr Jousif replied: “they are counting” and confirmed that they were sending “955”. Mr Jousif explained that he only had “900” with him and that he had A$1,020,000 but had left 30-35 at home. After some discussion regarding amounts, Mr Jousif and Mr Al Zubaidi agreed that Mr Jousif would send what he had with him that day and send the rest the following day.
At 6.54pm, Mamdouh asked Mr Jousif “All alright bro?” Mr Jousif told Mamdouh to talk to him the following day “about the papers”. The two arranged to meet the following day.
At 7.33pm, Mr Jousif told Mr Al Zubaidi: “Go to Mr Issa in Karradah-Denat Co and you will get .... 900. Tomorrow I will get the rest and send them off to you”. Mr Al Zubaidi asked why it was not all being sent and Mr Jousif repeated the explanation he had given when the money was being counted at BRESM and confirmed that he had taken out “mine” and would send “955”.
At 9.54pm Mr Jousif repeated his concern to Mr Al Zubaidi that if all of the money was transferred in his name he would be asked where he got the cash from. Mr Al Zubaidi told Mr Jousif to “tell them, my friend sent me the cash from Baghdad in order to buy an apartment ... but he decided to call the buying of the apartment off so he withdrew the money and I gave them back to him”. Mr Al Zubaidi confirmed that he was expecting to receive “955” and that Mr Jousif was to keep “45”.
Mr Al Zubaidi told Mr Jousif that “Walid and his Clan” will come and collect the money on Wednesday. Mr Jousif urged Mr Al Zubaidi to “tell them to get on with it ...”

Conversations on 4 September 2014

On 4 September 2014, at 7.23am, Mr Al Zubaidi confirmed with Mr Jousif that he had received half and would receive the other half the next day.
At about 6pm, Mr Jousif returned to BRESM. He provided a driver licence in the name of a third party (who was not present and does not appear to have had any involvement) and told Mr Alhamdani that he could not get any more identification documents from the donors.
Mr Alhamdani recorded the US$900,000 transferred the previous day as having been sent in two transactions of US$450,000: one in Mr Jousif’s name and the other in the third party’s name. Mr Jousif gave Mr Alhamdani a further A$55,000.00 which Mr Alhamdani converted to US$50,000 before transferring it to Mr Al Zubaidi in Baghdad. He recorded Mr Jousif as the sole sender for that transfer. A further US$5,000 was sent to make the total US$55,000, which was the amount Mr Al Zubaidi was expecting.

Conversations on 5 September 2014

On 5 September 2014, at 3.58pm, Mr Jousif voiced his concern to Mr Al Zubaidi about the money having been sent in his name and the prospect of going to gaol. Mr Al Zubaidi told him not to worry and said:

“Listen ... I had sent you money so that you buy me a house for citizenship and it did not happen. So you returned them to me. What is the problem?”

The signing and certification of the Partnership Agreement with the Ministry of Industry & Minerals

Conversations on 6 September 2014

On 6 September 2014, Mr Al Zubaidi told Mr Jousif that the certification had been completed by the Minister. Mr Jousif responded “Good, so they can start work”. Mr Al Zubaidi told Mr Jousif that he had to be in Australia on 18 October 2014. Mr Jousif suggested that when Mr Al Zubaidi returned from Australia to Iraq he and the Elomars might travel back with him. Mr Al Zubaidi said that he still needed to arrange visas. Mr Al Zubaidi told Mr Jousif that he would “receive the contract either Sunday or Monday” (7 or 8 September 2014).

Conversations on 8 September 2014

On 8 September 2014 at 6.45am Mr Al Zubaidi and Mr Jousif discussed the transfer of the money. Mr Jousif expressed some concern about being “ripped off” and said he felt anxious while the money was being counted. Mr Al Zubaidi assured him that he had “received everything to the penny”. At the end of the call Mr Jousif said:

It was submitted on behalf of the offenders (who largely adopted each other’s submissions) that general deterrence is not significant as offences of this type are “rare”. The offenders also relied on the circumstance that the present case is the first conviction for an offence relating to bribery of Iraqi officials. I reject Mr Scragg’s submission (which was adopted by the Elomars) that the offenders should be treated more leniently on that basis. He relied on what Basten JA said in Chong v R [2017] NSWCCA 185 at [19] about the effect of an increase in a statutory maximum penalty. I do not regard the comparison as apt.
The offenders also contended that the “unofficial system of benefits was a pervasive part of business within Iraq”. It was not made particularly clear by the offenders’ counsel whether it was said that the conduct underlying the offence was rare (which would seem to be at odds with the contention that it was pervasive) or whether it ought be inferred from the lack of prosecutions that the commission of the offence was rare. The offenders further submitted that it could not be concluded that the offence was difficult to detect and that, in effect, in the present case, little more would be required than to play the tapes of intercepted calls to the jury.
It is not possible to determine the extent of bribery of foreign public officials, whether in Iraq or elsewhere. The offenders’ assertion, that such conduct was required as a condition of entry to the Iraqi market, was no more than an assertion which corresponded with what Mr Jousif and Mr Al Zubaidi (who were hardly reliable) had told them. However, I do not infer from the paucity of prosecutions that the offence is rarely committed, including by Australian companies who do business in other countries, since that could also be explained by the difficulties of detection. I infer that the offence is difficult to detect. None of the parties to a conspiracy to bribe has an interest in its disclosure. The victim is the nation state whose foreign public officials are to receive a benefit. Absent telephone interception or a whistle-blower, it is difficult to discern how it could be detected. Indeed in the present case, the AFP appears to have discovered the involvement of the Elomars by chance after listening to Ms Abrahams’ conversations pursuant to the initial warrant. The prospect that the AFP will, in any other case, have such reliable real time evidence of the commission of a crime against s 70.2 or the corresponding conspiracy cannot be assumed.
Given that Australian businesses work overseas and obtain, at times, government contracts, including for substantial infrastructure, with other countries, I consider there to be a significant role for general deterrence in the present case, both in respect of the conduct of persons such as the Elomars who hope to gain by obtaining contracts as a result of bribes, or conduits such as Mr Jousif, who hope to make some money as a result of their facilitation. It is important that the sentence includes an element of denunciation so that those Australians who carry on business overseas appreciate that bribery of foreign officials is as serious and as criminal as bribery of local officials and can never be excused, much less justified, on the basis of a business imperative.
I turn now to consider the remaining matters in s 16A(2) by reference to the offenders individually.
Before doing so, I note that each of the offenders relied on subjective material, which was largely in the form of references and experts’ reports. The Crown indicated the matters that were not in dispute. None of the offenders gave evidence at the sentence hearing. Except to the extent to which the Crown accepts or does not contest the statements of the offenders in such reports and references I do not regard them as carrying particular weight: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59] (Smart AJ, Spigelman CJ and Simpson J agreeing). I have, however, taken them into account.

Mr Jousif

The matters in s 16A(2)(a), (e) and (ja) have been addressed above.
As to s 16A(2)(b) (other offences, if any, that are required or permitted to be taken into account), Mr Jousif was convicted of an offence of obtaining money by deception in November 2006 for which he served a sentence of periodic imprisonment of 15 months with a non-parole period of 10 months. I take this offence into account but it is of limited weight as it was some time ago. I note that it was said that the cause of his earlier offending was a gambling addiction. According to the subjective material on which he relied, he is still addicted to gambling. This factor is particularly relevant to the ratio of the non-parole period to the total term and the need to allow for some time in the community under parole supervision to address it.
As to s 16A(f) (the degree to which he has shown contrition for the offence), I have already addressed the extent to which the plea showed contrition for the offence in the sense of a willingness to facilitate the course of justice. Although Mr Jousif’s referees and the Pre-sentence Report referred to his expressions of remorse, I am not persuaded that Mr Jousif has shown contrition by demonstrating genuine remorse or acceptance of responsibility: see Cameron v The Queen at [14]. I note that he told the author of the Pre-sentence Report “I had no knowledge that my actions were illegal”, which cannot be accepted.
As to s 16A(2)(j) (the deterrent effect of the sentence on the person), I consider that there is some role for specific deterrence having regard to the earlier offence; however, as the first offence was many years ago, I do not regard it as having particular weight. I note that Dr Furst, the consultant forensic psychiatrist whose report was tendered on behalf of Mr Jousif, considered Mr Jousif to have insight into his gambling disorder, which was said to explain, in part, his offending behaviour.
As to s 16A(2)(k) (the need to ensure that the person is adequately punished for the offence), it is necessary to punish Mr Jousif for his role as instigator and facilitator in the conspiracy. But for his intervention, there is no reason to infer that the Elomars would have been persuaded either to embark on their proposed activities in Iraq, or to provide the $1 million to be transferred to Iraq or, indeed, that it would ever have been transferred. This is not to diminish their culpability or responsibility for what occurred, but to record the extent to which the genesis of the wrongdoing is to be attributed to Mr Jousif.
Subjective matters are to be taken into account by reason of s 16A(2)(m) (the character, antecedents, age, means and physical or mental condition of the person).
Mr Jousif is 48 years old. He lives with his wife and two adult sons in rented accommodation in the Fairfield area. He was born and raised in Baghdad as a Catholic. He was conscripted into the Iraq army when he was 17 and was a soldier for 7 years. He fought in the Iran/Iraq war (1980-1988) for three years and the Iraq/Kuwait War for two years before he deserted the army at the time of the US-led invasion of Kuwait in 1991. He fled to Turkey where he lived in a refugee camp. When he learned that the Kurds had taken control, he returned to Northern Iraq in order to be re-united with his fiancée (now wife). They fled together to Istanbul and from there travelled to Greece and ultimately obtained refugee status in Australia, where they arrived in July 1992. They have two sons. When Mr Jousif came to Australia he obtained unskilled and semi-skilled employment. The references refer to his contribution to the Fairfield community through his role as lifesaver at the Fairfield Leisure Centre and his connection with the Assyrian community in Fairfield, and described him as a loving husband and father. He was assessed as suitable for a Community Service Order by Community Corrections.
Mr Jousif reported to Dr Furst that he has suffered from a gambling addiction which has prevented him from running a business or owning a house. He is receiving a carer’s pension on the ground that he is caring for his wife who has mobility problems. According to Dr Furst he has Post Traumatic Stress Disorder in remission. Dr Furst also diagnosed an Adjustment Disorder with depressed and anxious mood as a consequence of the sentence hearing.
As to s 16A(2)(n) (prospects of rehabilitation), Dr Furst opined that Mr Jousif had good prospects of rehabilitation. The pre-sentence report also assesses his risk of re-offending as low. I accept that, in all the circumstances, he has good prospects of rehabilitation.
As to s 16A(2)(p) (the probable effect that any sentence would have on the person’s family or dependants), it was submitted on behalf of Mr Jousif that his wife would suffer if he were incarcerated as he is her carer. According to the statement of Mounira Toma (Mr Jousif’s wife), she had a (left) hip replacement operation in 2005. Since that time she has suffered from osteoarthritis in her right hip. The material relied on by Mr Jousif indicates that he has cared for her since and received a carer’s pension for this role. I note that Mr Jousif’s sons both live at home. The evidence at the sentence hearing revealed that Mr Jousif travelled to Iraq at least twice in 2014, the first time in August 2014 for almost two weeks and the second time for a period of about five weeks (from 12 September until 16 October 2014). The evidence does not enable me to determine what arrangements were made for his wife at those times. Having regard to the need for general deterrence, this factor does not affect the length of the sentence but will be taken into account in the context of Mr Jousif’s subjective circumstances which contribute to the ratio between the non-parole period and the total term.
I note that Mr Jousif spent two days in custody in relation to this offence from the date of his arrest on 19 February 2015 until his release on bail from the Local Court on 20 February 2015. Adjustment must accordingly be made for this: s 16E of the Crimes Act.

Ibrahim Elomar

The matters in s 16A(2)(a), (e) and (ja) have been addressed above. Section 16A(2)(b) is not relevant to Ibrahim.
I turn now to address s 16A(2)(f) (the degree to which the person has shown contrition for the offence). I do not accept that the plea of guilty signifies contrition in the present case, except to the limited extent set out above (that it showed an intention to facilitate the administration of justice). Mr James relied on the expressions of remorse made by Ibrahim to Associate Professor Woods, forensic psychologist, who prepared an expert report for the purposes of the sentence hearing following a consultation with Ibrahim on 1 August 2017 and was party to a telephone conference on 14 August 2017. Ibrahim has also expressed remorse to referees whose references were tendered on his behalf. It is telling that he sought to minimise his offending in the following statement made to the author of the Pre-Sentence Report dated 5 September 2017:

“Mr Elomar agreed with the facts, acknowledging the matter as a ‘mistake’. However he minimised his actions to an extent, indicating that in his mind he was paying the money to his overseas agent and how they spent it was their prerogative.
When asked what he needed to do to make things right, Mr Elomar stated that he believed he had already been penalised heavily. He has bought shame to his family, been unable to travel to expand business operations and has had the financial burden of the court matter.”

While I am prepared to infer that Ibrahim is sorry about what has happened (and that his conduct has adversely affected the lives and livelihoods of his family and employees), I am not persuaded that he feels, or has shown, genuine contrition. I note that, as with the other offenders, Ibrahim did not give evidence at the sentence hearing which would have provided him with an opportunity to express his contrition, if he indeed felt it. I am not persuaded that Ibrahim has shown contrition by demonstrating either genuine remorse or acceptance of responsibility. Indeed the extract set out above would tend to the contrary.
I am obliged to take into account, in the offender’s favour, the fact of Ibrahim’s plea of guilty under s 16A(2)(g). For the reasons given above in respect of Mr Jousif, I infer that Ibrahim wanted to facilitate the administration of justice, to the extent relevant to proof of the identity of the foreign public official, if it was required before the 2015 Amendment.
As to specific deterrence (s 16A(2)(j)), it was not suggested by the Crown that this factor was of significance in respect of either of the Elomars.
I accept that there is a need to ensure that Ibrahim is adequately punished for the offence (s 16A(2)(k)). The amount of the proposed bribe was substantial. The offence was committed for monetary gain by the two brothers who had apparently been very successful in conducting legitimate businesses for decades, were held in high standing in the community and whom many saw as an example to others and as mentors. They each knew that what they were doing was both morally wrong and illegal but decided to take a calculated risk because they had been seduced by the prospect of substantial wealth. In considering the need for punishment, I take into account the circumstance that the Elomars who, according to their referees, were regarded as “pillars of the community” have, as a result of the charge and the plea, lost the benefit of their standing in the community and their good reputations. It is to be expected that they will be disqualified from being directors for some years. As they are businessmen, who are accustomed to managing their affairs in a relatively autonomous way, this, too, will amount to punishment.
I propose to address Ibrahim’s subjective circumstances (s 16A(2)(m)).
Ibrahim is presently 61 years old. He is the sixth of twelve children. He was born in Lebanon. He reported that he had a happy childhood. He left school at the age of 15 and worked with his father who was a coppersmith. When he was 20 he moved with his parents and siblings to Australia. Ibrahim and Mamdouh established Lifese in 1986. He has worked full time since he left school. He is married with seven children. He reported being happily married and having a close relationship with his siblings, children and their partners.
Since being charged he has suffered chronic emotional despondence, low energy levels and sleep disturbance. He has not sought treatment. He reported to Associate Professor Woods that he has attempted to hide his level of distress from his family, and particularly his wife, who is greatly distressed. Associate Professor Woods (who is a psychologist, not a psychiatrist) considered Ibrahim’s profile to be consistent with moderate to severe depression and generalised anxiety disorder.
According to Associate Professor Woods, Ibrahim regards himself as “efficient, disciplined, meticulous and industrious”. His referees speak of Ibrahim as being a successful business man who has “always displayed great leadership skills and ethical behaviour with work” and is “ambitious”. It was said that he “looks after the needs and welfare of his employees”. He has been a mentor and is described as a “loving family man” and “exemplary”. Though a “tough businessman”, he is regarded by referees as “generous”.
In addition to the referees who wrote of Ibrahim’s qualities, several referees spoke of the Elomars in combined references. They were described by one as:

“perfect examples of what two immigrant people from a very different background can achieve in a very competitive market by fully embracing Australian values while suffering many prejudices because of their cultural background”.

It is regrettable that these so-called “perfect examples” were prepared to jeopardise that for which they had worked so hard for the crime for which they are to be sentenced. Lifese’s diminished fortunes, whatever the causes, may explain, but do not excuse, their conduct. The ends did not justify the means as the means were illegal and amounted to a serious crime.
Moreover, in so far as referees speak of what may be regarded as Ibrahim’s (and also Mamdouh’s) good character, I bear in mind that, in respect of an offence such as the present, good character, while relevant, is not as significant as a mitigating factor. The evidence indicates that an invitation to tender for large infrastructure contracts in Iraq required the putative tenderer to have a substantial record of having performed such contracts in the past. Persons with a criminal history, or those who are not regarded as being of good character in the society in which such experience of major infrastructure contracts are performed, rarely have the opportunity to commit a crime of the nature and circumstances of the present offence: see R v El Rashid (Unreported, NSW Court of Criminal Appeal, 60682 of 1994, 7 April 1995; Gleeson CJ, Mahoney JA and Sperling J agreeing) and Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [36].
It was put by Mr James on behalf of Ibrahim (and adopted by Mr Djemal) that prison would be more onerous for the Elomars than for other offenders because they are in their 60’s and have never been to gaol before. I regard this matter as particularly relevant to the ratio between the total term and the non-parole period.
As to s 16A(2)(n) (prospects of rehabilitation), I accept that Ibrahim has good prospects of rehabilitation.
As to s16A(2)(p), I accept that Ibrahim’s family, and in particular his wife, will be affected if a custodial sentence is imposed and take this into account as part of his subjective case.

Mamdouh Elomar

The matters in s 16A(2)(a), (e), (j) and (ja) have been addressed above. I do not regard s 16A(2)(b) as relevant to Mamdouh since, although there was minor prior offending, it was many years ago. I regard the need to punish Mamdouh as relevantly indistinguishable from the need to punish Ibrahim (s 16A(2)(k). Accordingly, the reasons given above in respect of that matter, also apply to Mamdouh.
I turn now to address s 16A(2)(f) (degree of contrition). Mamdouh saw John Machlin, clinical psychologist, for the purposes of the sentence hearing. Although Mr Machlin concluded that Mamdouh “greatly regrets and is contrite about his offence”, the following history given by Mamdouh to Mr Machlin indicates that he does not appreciate the nature and extent of his wrong-doing:

“In general terms, Mr Elomar said he did not know all that went on. He said that he and his brother entrusted their agent with the negotiations, and that he ‘signed everything.’ He was led to believe he was following normal procedures in paying to compete for work in Iraq, even though in terms of Australian standards he acknowledges such activity would be illegal.
. . .
Mr Elomar gives a credible account of the pressures that drove the business to seek contracts abroad where procedures were largely unfamiliar to him According to Mr Elomar, he relied on others to carry out negotiations for him. He explains that he was led to believe normal procedures were being followed in securing work in Iraq, and that he did not set out to break the law.
He accepts the conspiracy charge that applies to him, and he conveys, with his increased understanding, and with the consequences he has incurred since his arrest, that he will not make the same mistake again.”

Referees have also referred to Mamdouh’s remorse or contrition, although at times in terms which minimise the gravity of the offence, including that it was an “indiscretion”. Although I accept that, like Ibrahim, he is sorry for his predicament and the damage it has caused his family and the employees of Lifese, I am not persuaded that Mamdouh has shown contrition for the offence by demonstrating genuine remorse or acceptance of responsibility. In the limited way that is indicated by his plea of guilty, he has demonstrated contrition by a willingness to facilitate the administration of justice (addressed above).

As to s 16A(2)(g) (the plea of guilty), I accept, for the reasons given above, that the plea represents a desire to facilitate the administration of justice.
As to s 16A(2)(m), the family background of Mamdouh was relevantly similar to that of Ibrahim, as set out above. Mamdouh is currently 63 and was the fifth child.
Mamdouh was unfocussed at school in Lebanon and had difficulties with literacy. He left school when he was 10 or 11 and went to work in his father’s blacksmith forge. He arrived in Australia at the age of 19. Mamdouh reported to Mr Machlin that, upon arrival in Australia, he and his brothers worked to support the family and bought them a house in Bankstown. Mamdouh worked initially as a cleaner before being employed in the construction industry as a crane driver for 25 years. At first he worked in the Northern Territory and later returned to Sydney to work in large construction companies.
He met his wife, Sahar, in Australia. They had five children, three sons and two daughters. Their son Mohammed (referred to above) died in 2015. The eldest son, Ahmed, is currently in custody. The youngest son is 15. Their two daughters are married with children of their own.
In 1986 Mamdouh established Lifese with Ibrahim. Lifese has, over the years, obtained significant government and private contracts in Australia and overseas. The company had a good reputation and worked on high-profile public projects until its reputation was affected by the activities of Mamdouh’s family members. In 2005, one of Mamdouh’s brother’s was arrested in relation to a terrorist plot and was convicted in 2009. According to Mamdouh, the case received substantial publicity which affected the family name and resulted in Lifese’s tenders for substantial projects with governments and large companies being rejected. He told Mr Machlin that this led him to consider operating overseas and that even Lifese’s operation in PNG was affected by the stain on the family name.
Mamdouh, who has suffered the loss of one son and the detention of another, is distressed about the prospect of a custodial sentence and copes with the stress by retreating to his brother’s horse farm and tending to the horses. His wife is also suffering stress which has affected their marriage.
His referees speak of the high regard in which Mamdouh was held, and, from the referees’ perspective, continues to be held. They describe him variously as a “good citizen”, a “caring personality” and “honest and open”. Referees also referred to the difficulty of providing continuity of employment for a workforce in the construction industry through “the busy and the lean times”. They express sympathy for the consequential effect of the conduct of others who bear the family name. Referees, including a former police officer, also spoke of the present matter as being “out of character”. Mamdouh was described in Parliament by the Minister for Immigration and Border Protection on 24 September 2014, less than three weeks after the bribe monies were transferred to Iraq, as a “brave and passionate” man who expressed his “passion” for Australia and “Australian values” in circumstances where members of his family had “fallen into the terrorists’ snare”. Needless to say the Minister was unaware of the commission of this offence when he made those statements as the offenders had not yet been arrested. Mamdouh hosted a barbecue at Lakemba with Jamal Rifi, another referee, in September 2014 to “break down misconceptions and ease anxiety caused by extremists”. For the reasons already given with respect to Ibrahim, matters pertaining to good character are relevant, but of lesser weight in the present context.
As to s 16A(2)(n) I accept that Mamdouh has good prospects of rehabilitation.
As to s16A(2)(p), I accept that Mamdouh’s family, and in particular his wife, who is particularly distressed, will be affected if a custodial sentence is imposed and take this into account as part of his subjective case, mindful of the way in which this sub-paragraph has been interpreted.

Sentencing options

As referred to above a sentence of imprisonment and/or a fine may be imposed for this offence. There are other options, both custodial and non-custodial, including those which may be considered if a sentence of imprisonment is appropriate, as to how the sentence is to be served. The offenders have raised various options and contended that a custodial sentence is not required as the deterrent effect of a sentence not served in custody or other orders (such as an Intensive Correction Order) would still involve punishment and serve the purpose of general deterrence. I have considered all available options, including the conditions that might be imposed on an offender under a sentence or order: s 16A(2).
Having considered all other available sentences and orders, I am satisfied that no sentence other than a sentence of imprisonment is appropriate in all the circumstances of the case: s 17A of the Crimes Act. I am also satisfied that, having regard to the seriousness of each offender’s role and conduct in committing the offence, no sentence other than one of full-time imprisonment in custody is appropriate, in all the circumstances, including, in particular, the need for general deterrence: R v Donald [2013] NSWCCA 238 at [86] (Latham J, Hidden and Adamson JJ agreeing). Each offender has deliberately flouted Commonwealth law and employed criminal means in the expectation of financial advantage. Their respective criminality is serious and warrants imprisonment to communicate “the censure of society”: Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; [2004] HCA 46 at [163] (Kirby J).
I have also considered whether it is appropriate to impose a fine in addition to a custodial sentence. Section 16C of the Crimes Act requires the court to take into account the offender’s circumstances before imposing a fine. Although the Elomars did not seek to put evidence about their present financial circumstances before the court, counsel for the Elomars accepted that it would be open to me to impose both a custodial sentence and a fine and that the imposition of a fine would contribute to the deterrent effect of the sentence, particularly in the commercial community. I propose to impose a fine on each of the Elomars, in addition to a sentence of imprisonment as a financial penalty is, in the circumstances, called for. They committed the crime for financial reasons and in the hope and expectation of substantial commercial gain. In their case it is appropriate that, to borrow the language from Weininger v The Queen at [24], the “units of punishment” be expressed in both time and money. Although Mr Jousif also committed the offence for financial gain, I am not disposed to impose a fine on him as it appears that he would not have the means to pay.

The imposition of a non-parole period

For Commonwealth offences, there is no statutory or judicially determined “normal” ratio between the non-parole period and the total sentence. Accordingly, my discretion to determine the total sentence, the non-parole period and the parole period is not constrained by any formula or norm. The non-parole period is to be determined by what, in all the circumstances of the case, ought be the minimum period of actual incarceration: Power v The Queen (1974) 131 CLR 623 at 627-629; [1974] HCA 26 and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [36]-[44].

Other matters

The Crown has drawn my attention to a sentence imposed for an offence against ss 11.5(1) and 70.2 of the Code although it does not contend (and the offenders agreed) that it is comparable. I agree that it is not. In these circumstances, I do not propose to address the reasons for that sentence (which are currently suppressed). There are, in any event, limits on the value to the sentencing process of previously decided cases: Hili v The Queen; Jones v The Queen at [54]-[55].
I note counsel’s undertaking to explain to the offenders the purposes and consequences of fixing the non-parole period: s 16F of the Crimes Act.

Sentence

Orders

John Jousif:

(1) You are convicted of the count on the indictment.

I sentence you to a term of imprisonment of 4 years commencing on 25 September 2017 and expiring on 24 September 2021.
I fix a non-parole period of 2 years, expiring on 24 September 2019.

Ibrahim Elomar:

(2) You are convicted of the count on the indictment.

I sentence you to a term of imprisonment of 4 years commencing on 27 September 2017 and expiring on 26 September 2021.
I fix a non-parole period of 2 years, expiring on 26 September 2019.
You are first eligible for parole on 26 September 2019.
I impose a fine of $250,000.

Mamdouh Elomar:

(3) You are convicted of the count on the indictment.

I sentence you to a term of imprisonment of 4 years commencing on 27 September 2017 and expiring on 26 September 2021.
I fix a non-parole period of 2 years, expiring on 26 September 2019.
You are first eligible for parole on 26 September 2019.
I impose a fine of $250,000.

**********

Decision last updated: 27 September 2017

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 v The Queen (1995) 183 CLR 1; [1995] HCA 29 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Tyler v R; R v Chambers [2007] NSWCCA 247; (2007) 173 A Crim R 458 Valsamakis v R [2016] NSWCCA 156 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Texts Cited:	Commonwealth, Parliamentary Debates, House of Representatives, 19 March 2015, 2909-2912 Commonwealth, Parliamentary Debates, House of Representatives, 3 June 1999, 6044-6046 Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
Category:	Sentence
Parties:	Regina John Jousif (Offender) Ibrahim Elomar (Offender) Mamdouh Elomar (Offender)
Representation:	Counsel: D Staeli SC (Crown) G Scragg (Offender John Jousif) G James QC (Offender Ibrahim Elomar) A Djemal (Offender Mamdouh Elomar) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Birchgrove Legal (Offender John Jousif) Lawyers Corp (Offenders Ibrahim Elomar and Mamdouh Elomar)
File Number(s):	2015/52844; 2015/63885; 2015/63877