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Elomar v The Queen; Elomar v The Queen [2018] NSWCCA 224

appeal against sentence — conspiring to bribe a foreign public official offence contrary to ss 11.5(1) and 70.2(1) of Commonwealth Criminal Code — offence related to a conspiracy between three co-offenders to pay unknown Iraqi government official or officials US$1 million bribe to secure Iraqi government contracts — two co-offenders who were each sentenced to 4 years imprisonment with 2 year non-parole period and $250,000 fine appealed their sentences — injury, loss or damage resulting from offence — s16A(2)(e) — sentencing judge identified two areas of concern — the first concerned distortion of markets caused by bribery — this concern loses force because what happened to money sent to Iraq unknown — not known whether bribe actually received by Iraqi government officials or whether it was part of an elaborate fraud based on premise that lucrative contracts could only be obtained in Iraq by payment of bribes — if that were only basis for finding of damage, ground may well have been made out — sentencing judge had regard to Second Reading Speech and made reference to parties to convention having desire to stamp out and eliminate culture of bribery among other things — this led to sentencing judge identifying damage from fact that success of enterprise [soliciting of bribes] would have effect of entrenching and encouraging recipient and others to continue to solicit payments — sentencing judge’s findings as to damage appropriate, limited in the way specified i.e. effect of successful ‘scam’ to encourage recipient to continue such conduct — guilty plea — s 16A(2)(g) — sentencing judge aware of controversy at time regarding whether utilitarian value of plea of guilty should be taken into account for purpose of awarding discount — sentencing judge found both utilitarian considerations and subjective intention to facilitate course of justice present — sentencing judge took both matters into account when determining discount — nothing in that approach inconsistent with Jinde Huang aka Wei Lie v Rcharacter — s 16A(2)(m) — sentencing judge erred in finding that “in offences such as the present, good character, while relevant, is not as significant as a mitigating factor” — no evidence offenders’ good character had anything to do with opportunity to contract work in Iraq or facilitation of bribe to foreign officials — significant distinction to be drawn between persons whose claim to good character based upon them not engaged in criminal activity and evidence of good character which goes not only to that subject, but which positively establishes particular person or persons under consideration made positive contribution to society and demonstrated consistent history of philanthropy directed to fellow citizens — re-sentence parityobjective seriousness general deterrence — when comparing objective seriousness and subjective features of three co-offenders little to choose between — only adjustment to make to appealing co-offenders’ sentences reflects success of co-offenders on “good character” ground to reduce their period of imprisonment — a substantial fine of kind imposed by sentencing judge appropriately reflects seriousness of offending and fact offending motivated solely by greed — in area where general deterrence so important, fine of that magnitude remains appropriate — because of strength of good character evidence, offenders are entitled to reduction in sentence but not to reduction in fine imposed — appeal allowed — sentences quashed — both co-offenders re-sentenced to 3 years’ and 4 months imprisonment with 1 year and 8 month non-parole period and $250,000 fine
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