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R v El-Debel; R v Kahlon (No 7) [2022] ACTSC 313

The offenders were sentenced following convictions for 1 count of conspiring with the intention of dishonestly obtaining a gain from the Commonwealth contrary to ss 11.5 and 135.4(1) of the Commonwealth Criminal Code.

Nature and Circumstances: Offenders and a third person facilitated the procurement process to the advantage of candidates that had been put forward by the companies owned by Kahlon and the other offender. The amounts did not come at any cost to the Department of Finance because the amounts paid would have been paid in any event to whichever of the many companies which put forward candidates had been successful. The amount of money that was the product of the unlawful activity cannot be determined. The Department suffered no monetary loss nor any functional loss arising from the conspiracy. The infiltration of a government department for the personal gain of three persons is objectively serious. If the fraud had revealed a significant loss to the Commonwealth or a quantifiable large gain to the offenders, a sentence of full-time imprisonment would have been inevitable. But this is not the case. Full-time imprisonment cannot be imposed on the basis of almost total speculation as to the effects of the crimes, in particular uncertainty as to the duration of the conspiracy, the extent of the gain produced by the conspiracy and of the loss (if any) suffered by the Department.

Parity: Each of the three conspirators played a separate role in the events. El-Debel, in particular, operated from within the Department as an employee. Kahlon and the third person were mostly involved through their roles in putting forward candidates for selection. The comparative involvement of El-Debel and Kahlon was roughly equal. The third person came across as the person ‘in charge’ and generally directing their co-conspirators. There is no reason to impose any harsher sentence on El-Debel than on Kahlon or vice-versa.

Delay: The preparation of this matter, and the bringing of it to Court, were beset with delays, all at the feet of the Crown. In fraud matters preparation may be more difficult and take more time but the delay in this case was excessive. This delay was taken into account.

Both offenders sentenced to 3 years and 6 months imprisonment to be served by way of an Intensive Correction Order.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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