R v Jousif; R v I Elomar; R v M Elomar

R v Jousif; R v I Elomar; R v M Elomar - [2017] NSWSC 1299 - NSWSC 2017 case summary — Zoe

[11]

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.

[16]

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?''

[17]

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 . . ."

[21]

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.

[25]

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".

[26]

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.

[27]

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.

[28]

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?"

[33]

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.

[35]

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".

[36]

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".

[38]

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".

[41]

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 ..."

[47]

Conversations on 9 September 2014

At 9.33am on 9 September 2014 Mr Jousif congratulated Ibrahim and said "the contract is complete". When Ibrahim asked Mr Jousif whether he had received anything from Mr Al Zubaidi he was told that nothing had come through yet. Ibrahim responded "We need them urgently. We need to start". Mr Jousif replied "All the documents are complete and you will receive it soon".
At 1.46pm on 9 September 2014 Ibrahim spoke with Mr Ferris about the possibility of working together in Iraq. Ibrahim indicated that he had a couple of jobs, one relating to chlorine and the other relating to oil, and that he was waiting for more information. Mr Ferris commented that Ibrahim was "pretty keen about getting in and working" in Iraq. Ibrahim said that he had "spent a lot of money there". Mr Ferris asked Ibrahim "Do you think these contracts, do you think there is a good chance of these coming off though?" to which Ibrahim replied "Well ... I wouldn't spend this money ... you know because I'm pretty sure ... that we can get our foot there ... then we can start".
In the course of the conversation the following exchange occurred: Mr Ferris: "What about, for letting these contracts out, is the corruption as bad as what everybody says? Ibrahim: ... no different from anywhere else in the world you know but- - Mr Ferris: Must be terrible. Ibrahim: Yeah. Mr Ferris: Maybe they're on the table, not under the table. Ibrahim: Yeah [Laughs] doesn't matter there, on the table is ok. Ferris: [Laughs] Maybe on the table is better. I don't know ... but it looks like it's on the table, not under the table".
I do not infer from Ibrahim's statements to Mr Ferris that he had been involved in bribery before or that he truly believed that the situation in Iraq (in that regard) was no different from elsewhere. Ibrahim told Mr Ferris, "There's a lot of people there. Now, what I understand from the ....the company, the Ministry, that they have some work for us ... we have an authority to use 50% of their work force and ..... a 100% of their equipment".

[49]

Lifese's pricing proposals for construction projects in Iraq for a pre-cast concrete factory and a waste management plant

Once Lifese received confirmation that the partnership contract with the Ministry of Industry and Minerals had been signed and certified, and that Iraqi construction projects would be referred to Lifese, it began to prepare pricing proposals for a chlorine factory, a waste management plant and a pre-cast concrete plant. An internal undated Lifese document was tendered on behalf of the Elomars which referred to three projects for the design and construction of a concrete plant in Karbala Province for an estimated cost of US$20-25 million to commence in the first quarter of 2015; a solid waste processing facility in the city of Baghdad for an estimated cost of US$350-450 million to start in the second quarter of 2015; and a liquid chlorine plant in Basra for an estimated cost of US$25-30 million.
What follows is a summary of what Lifese did in the expectation that it would be allocated infrastructure contracts as a consequence of the bribe.
On 9 October 2014, Ibrahim sent an email to Ben Connell, a director of Connsult Pty Ltd, a business strategy firm specialising in waste management, informing him that Lifese had signed an agreement with an Iraqi Ministry which had four projects to allocate, including the waste management project. On 14 October 2014, Mr Connell met with Ibrahim and employees of Lifese to discuss the waste management project. On the same day, at 2.12pm, Ibrahim told Mr Ferris about his plans for the project.
On 15 October 2014 Ibrahim inserted the names of various Iraqi public officials into his mobile phone.
On 16 October 2014, Mr Jousif returned to Australia with Mr Al Zubaidi, who entered Australia on an Iraqi passport. On 17 October 2014 at 2.15pm a lawfully obtained surveillance device recorded a discussion (which I infer was in person) between Mamdouh, Ibrahim, Mr Jousif and Mr Al Zubaidi. During this meeting Mr Al Zubaidi said: "Work in Iraq is a lot ... The budget will be finished with next week. There is a lot of work ... we had a deputy of a minister and Walid and the CEO said that they want to work with us. Walid said that they want to work with us. Walid said that the work has to be through Al Rasheed not directly ... The Chlorine ... Abu Karrar did it quickly and sent you photos and the design. The work will be strong ... the main thing is the Chlorine the waste."
Between 20 and 22 October 2014 Mr Connell spoke with Ibrahim and Lifese employees about the waste management project which they understood would be fully funded by the Iraqi government.
On 20 October 2014, Ibrahim had two telephone conversations with Abu Karrar. During the first call, at 6.24pm, they discussed documentation for a pre-cast concrete project and another possible project relating to a laboratory (or laboratories). Abu Karrar also mentioned the possibility of a contract for the supply of timber for "Mr Walid himself from Al Rasheed". Ibrahim asked for the details so that he could price it. During the second call, at 6.32pm, Abu Karrar told Ibrahim that they wanted a continuing supply of timber rather than a single order and also wanted Lifese to "bring technicians to train the Iraqis".
Abu Karrar told Ibrahim that the waste management project had been delayed because of the budget. At the end of the call, Abu Karrar indicated that he had sent something via Mr Al Zubaidi and asked Ibrahim to "take care of us".
On 21 October 2014 at 1.49pm Mr Al Zubaidi and Mr Jousif (who were both in Australia and probably together) discussed commissions. Mr Jousif said he expected 7% when he spoke to Abu Karrar and that the Elomars would receive 30% from the value of the contract. Mr Al Zubaidi corrected Mr Jousif and said that the Elomars would be entitled to 30% of the profit not 30% of value of the contract. Mr Al Zubaidi told Mr Jousif that they would both receive "half a million" for the waste management project.
On 24 October 2014 at 8.44am a lawfully obtained surveillance device recorded a discussion in which Mr Jousif told Ibrahim that he told Mr Al Zubaidi to: "[B]ring the work and they will have everything ... we did not say no we paid a million dollars to the ministry of Industry. So it all depends on you .. . I told you bring work we are not saying no ... They asked a million and we sent it to you ... I told them that."
Mr Al Zubaidi remained in Australia until 24 October 2014. During this time he continued to meet with Mr Jousif and the Elomars. On 24 October 2014, at 8.20am, Ibrahim called the hotel where Mr Al Zubaidi had been staying and made arrangements to pay for his stay.
On 24 October 2014, at 8.33pm Mr Jousif reminded Mr Al Zubaidi of the need for an official letter from the Ministry, Al Rasheed, and most importantly "some work".

[50]

Lifese prepares and submits tender proposals to the Ministry of Industry & Minerals

On 29 October 2014 the "Ministry of Industry and Minerals, Al Rasheed General Company, Commercial Affairs Division" called for tenders to prepare, establish and erect a plant to manufacture pre-cast concrete slabs. The request for tender required that a letter of guarantee be issued by an approved Iraqi Bank in favour of Al Rasheed in Iraqi dinars. On about 30 October 2014, the Union Bank of Iraq issued a Letter of Guarantee to Al Rasheed in the sum of 85 million dinars, in respect of Lifese, for the purpose of the tender. The Letter of Guarantee was valid to 29 January 2015.
On about 30 October 2014, the Ministry of Finance issued a letter to the "Ministry of Industry and Minerals, Al Rasheed General Company" noting that based on an application made by a representative of Lifese, it had no objection to that company participating in auctions and tenders as it was registered with the Ministry of Finance. This letter was copied to the Ministry of Oil.
Between 31 October 2014 and 1 November 2014, Lifese submitted a tender, signed by Ibrahim, to Al Rasheed for the "Design, Supply and Installation of Pre-cast Concrete Plant, Karbala Province, Iraq". The total price for the work was US$8,474,177. The Elomars tendered in evidence in the sentence hearing the "Project Quality Plan" associated with Lifese's tender for that project. I accept that the preparation of the tender involved the expenditure of time, money and skill for a legitimate project which would have contributed to Iraq's infrastructure.
On 4 November 2014, Mr Al Zubaidi emailed copies of the Letter of Guarantee from the Union Bank of Iraq and the letter from the Ministry of Finance, both dated 30 October 2014, to Ibrahim and Mr Jousif.
On 6 November 2014, Ibrahim spoke with Mamdouh (who was in Lebanon) who asked if anything had come through from Iraq. Ibrahim stated that Mr Al Zubaidi was playing games and stating that they had to pay a "big bond". Ibrahim then said: "I told him that the contract does not state this. I told him that the contract says that Al Rasheed had to pay". Ibrahim then referred to the fact that Mr Al Zubaidi had borrowed $75,000 and was asking for money for fees. Ibrahim reported to Mamdouh that he had told them to "get lost" and told him "we have a contract." Ibrahim told Mamdouh that he had also asked (rhetorically) "Why else did we do a contract and go over there. We paid and did this and that.. .. why would we have done all that?" After discussing the costs of doing the proposal for the waste management project, Mamdouh said that they could not pay the bond, to which Ibrahim responded "it is written in the contract that we did. That is their responsibility to provide all the letters to the bank. You understand?" Mamdouh indicated that he did.
On 12 November 2014 Mamdouh and Mr Jousif discussed the prospect that Lifese would be given the concrete and waste management projects. Mr Jousif explained to Mamdouh that two other companies were putting in proposals for the concrete project and that Lifese was the third one. Mr Jousif mentioned that Mr Al Zubaidi and Abu Karrar had suggested that further payments (bribes) be made and described the committee as "thieves". Mr Jousif told Mamdouh that he had said: "Bring work and you'll get money". Mamdouh agreed.
Later on in the call, Mr Jousif referred to $16,000 which was being requested for papers which had been prepared, including letters for the bank, and that he was glad Mamdouh had called as he did not know what to tell them. Mamdouh said, "They said that they want work to make money. They have tried us out and we gave ... they need to do a bit of work."
On 12 November 2014, Ibrahim told Mr Ferris that Lifese had sent a price estimate for a pre-cast concrete panel plant and that the pricing was underway for a chlorine factory. He also said that "all of this" was costing him a lot of money but that he was confident that he would get a project worth hundreds of millions of dollars underway in 2015.
On 13 November 2014, at 3.23pm Ibrahim complained to Mr Jousif about the delay and the fact that they had still not used Lifese's house/office in Iraq although it had been three months since it had been arranged. Ibrahim also told Mr Jousif that he received an email from Mr Al Zubaidi the previous day which included the statement "that Abu Karrar wants nutrition" (a euphemism for a bribe). They both complained about the further demands for money. Ibrahim confirmed to Mr Jousif that the chlorine project and the waste management project were costing him a lot of money and he wanted to start working on them. The two men discussed how they might try to speed things up by calling Mr Jousif's contacts in Iraq. Mr Jousif suggested that he "talk to [his] nephew the Deputy Minister directly - Mr Haidar". Ibrahim expressed concerns about this suggestion and said that he did not want to override anyone and create problems.
On 13 November 2014, at 3.40pm, Mr Jousif called Mr Haidar to ask about the delay in allocation of work to Lifese. The conversation concluded with Mr Jousif saying that he was "leaving it in [Mr Haidar's] lap".
On 19 November 2014, Abu Karrar told Ibrahim that the following day he would get "the official letter" from Al Rasheed to Lifese, insinuating that Lifese had been awarded the pre-cast concrete project and that Ibrahim just needed to confirm that they would take it. Abu Karrar reiterated his request for more money.
On 2 December 2014, at 6.11pm, Mr Al Zubaidi told Mr Jousif that they were very close to having the pre-cast concrete project referred to them. A few minutes later Mr Jousif relayed the news to Ibrahim, saying that the concrete and the waste projects were "100%". On 3 December 2014, Ibrahim spoke with Mamdouh and told him that it looked as if they were going to need to send $50-60,000 to Iraq in relation to all three jobs (concrete, waste and chlorine).
On 9 December 2014, Mr Connell submitted a technical and commercial offer to Lifese, including an estimated cost for the waste management project of between US$388-454 million. Thereafter, he was not told what happened with the project, but had somehow got the impression it had stalled. He invoiced Lifese $53,096.53 for the work which was paid in full.
On about 5 January 2015, Mr Al Zubaidi sent an email to Ibrahim and Mr Jousif demanding reimbursement of monies spent on Lifese's house in Iraq ($134,765, of which $100,000 had been paid, and monthly disbursements of $5,925). Ibrahim arranged for an additional payment of US$80,000 to be paid to Mr Al Zubaidi, which covered the amount requested and included a buffer in the order of US$23,000 for future months.
On 30 January 2015, Ibrahim sent an email to James Gao informing him that he was a friend of Mr Lam and asking him to price a tender on nine oil wells to be drilled so that they could work on it as partners.
On 4 February 2015, Tito Cerdan, from Lifese's Estimating Department, sent two emails, one to Mr AI Zubaidi and the second to a person named Ms Zhou. In the email to Mr Al Zubaidi, Mr Cerdan provided a link for Mr AI Zubaidi to download the Registration & Pre-Qualification for Missan 9 Oil Wells Project and asked that he submit the document to "CNOOC Iraq" by 5 February 2015. In the email to Ms Zhou (who appears to have been associated with Mr Gao), Mr Cerdan provided a link for her to download the Registration & Pre-Qualification documents as they could not be sent by email. On 12 February 2015, Mr Gao replied to Ibrahim's email of 30 January 2015 with a series of questions about the tender documents.
On 15 February 2015 the three offenders were arrested and charged and search warrants were executed on their homes and the premises of Lifese. The evidence does not reveal what happened to the US$1 million for the bribe.
No contracts were ever allocated to Lifese.

[54]

Division 70 of the Code

Division 70, entitled "Bribery of foreign public officials", is contained in Ch 4 of the Code, which is entitled "The integrity and security of the international community and foreign governments".
At the time of the offending conduct, s 70.2, relevantly provided: Bribing a foreign public official (1) A person is guilty of an offence if: (a) the person: (i) provides a benefit to another person; . . . and (b) the benefit is not legitimately due to the other person; and (c) the first‑mentioned person does so with the intention of influencing a foreign public official (who may be the other person) in the exercise of the official's duties as a foreign public official in order to: (i) obtain . . . business; . . . Note: For defences see sections 70.3 and 70.4. (1A) In a prosecution for an offence under subsection (1), it is not necessary to prove that business, or a business advantage, was actually obtained or retained. (2) Benefit that is not legitimately due For the purposes of this section, in working out if a benefit is not legitimately due to a person in a particular situation, disregard the following: (a) the fact that the benefit may be, or be perceived to be, customary, necessary or required in the situation; (b) the value of the benefit; (c) any official tolerance of the benefit. (3) Business advantage that is not legitimately due For the purposes of this section, in working out if a business advantage is not legitimately due to a person in a particular situation, disregard the following: (a) the fact that the business advantage may be customary, or perceived to be customary, in the situation; (b) the value of the business advantage; (c) any official tolerance of the business advantage. . . ."
Section 70.1 of the Code defines benefit as "any advantage". It is common ground that money is a "benefit". Section 70.1 defines "duty" as follows: duty, in relation to a foreign public official, means any authority, duty, function or power that: (a) is conferred on the official; or (b) that the official holds himself or herself out as having.
The term "foreign public official" is broadly defined and extends to individuals who perform work for organisations which are, in effect, owned or controlled by foreign government bodies, foreign public enterprises or public international organisations. By their plea the offenders accept that, in conspiring to bribe an officer of Al Rasheed, they were conspiring to bribe a foreign public official in the exercise of his or her official duties in order to obtain business. In any event, it is plain from the narrative that the offenders knew that Al Rasheed was within the auspices of the Ministry of Industry and Minerals.
Section 70.3 of the Code provides that it is a defence to an offence under s 70.2 where the conduct is shown by written proof to be lawful in the foreign public official's country. It was not suggested that there was any written law of Iraq which justified or legitimised bribery of a public official.
Although the offence is punishable as if the offence to which the conspiracy relates had been committed, the relevant conduct in the present case is the agreement that constitutes the conspiracy: s 11.5(1) of the Code.

[55]

The legislative history of Division 70

The Court is obliged, by s 15AA of the Acts Interpretation Act 1901 (Cth) to prefer an interpretation of a provision of the Act which would best achieve the purpose or object of the Act, whether or not that purpose or object is expressly stated in the Act. I propose to address the legislative history and extrinsic material.
Division 70 was added to the Code by the Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 (Cth) (the 1999 Amendment), which commenced on 17 December 1999. As is evident from the Second Reading Speech, the amendment was designed to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Convention), which came into force on 15 February 1999. The preamble to the Convention commences with the following indication of its purpose: "The Parties, Considering that bribery is a widespread phenomenon in international business transactions, including trade and investment, which raises serious moral and political concerns, undermines good governance and economic development, and distorts international competitive conditions; Considering that all countries share a responsibility to combat bribery in international business transactions; ..."
Article 1.1 of the Convention requires parties to criminalise offers of undue pecuniary or other advantage to a foreign public official. Article 1.2 requires parties to criminalise attempt and conspiracy to bribe a foreign public official "to the same extent" as attempt and conspiracy to bribe a local public official. Article 3.1 requires criminal penalties to be "proportionate and dissuasive" and "comparable" to that applicable to local officials. Although the Convention was not specifically referred to in the 1999 Amendment (and therefore does not fall within s 15AB(2)(d) of the Acts Interpretation Act), I regard it as capable of assisting in the ascertainment of the meaning of the provision, to confirm the ordinary meaning conveyed by the text within the meaning of s 15AB(1) of the Acts Interpretation Act.
The then Attorney-General, the Hon. Daryl Williams, said in his Second Reading Speech on the bill which became the 1999 Amendment: "The purpose of the bill is ... to provide for new offences prohibiting the bribery of foreign officials ... by Australians or companies incorporated in Australia. The offences are designed to implement the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions, which is a very significant response by the international community to the problem of transnational corruption ... The bill is very much one of the consequences of globalisation. We live in a time of unparalleled social and cultural interactions which demand that we have an international perspective in relation to our ethical and value systems as well as the conduct of business. I believe the bill and subsequent ratification of the convention will convey a message to the world and the Australian community that the parliament takes the problem of bribery seriously. There are those who believe official corruption is part of the way of life in some countries. However, it is almost always illegal and I doubt that it really reflects the true community values of the country concerned. However, where laws are not enforced for any reason, corruption will thrive. ... It is important that Australia should support the OECD's initiative to combat the bribery of foreign public officials and take a principled stand against corruption ... There is good business sense, as much as morality, in introducing this legislation. Bribery distorts attempts at international competitive bidding, bribes themselves are non-productive and are therefore paid from profits and bribes distort trade in that contracts are not based on merit and can lead to production of poor quality goods and services. In the aid context, bribery can lead to a very poor selection of projects, and this can in turn lead to diversion of resources away from areas of greatest need." (Parliamentary Debates (Cth), House of Representatives, 3 June 1999, pp.6044-6045) [Emphasis added.]
The Second Reading Speech can be taken into account under s 15AB(2)(f) of the Acts Interpretation Act.

[56]

Subsequent amendment to s 70.2(1A)

After the period specified in the indictment, s 70.2(1A) was amended by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) (the 2015 Amendment) to add (b). It provided: "(1A) For the purposes of paragraph (1)(c): (a) the first‑mentioned person does not need to intend to influence a particular foreign public official; and (b) business, or a business advantage, does not need to be actually obtained or retained."
The 2015 Amendment, which came into force on 26 November 2015, had the effect of confirming, or providing, that the Crown did not have to prove that a defendant intended to influence a particular foreign public official.
The Explanatory Memorandum for the bill that became the 2015 Amendment (the 2015 Bill) said, of present relevance: "6. Schedule 2 will amend the Criminal Code to clarify the operation of the offence of bribing a foreign public official in Division 70.2. The amendment clarifies that proof of an intention to influence a particular foreign official is not required to establish the offence. 7. Clarifying the offence will ensure that a defendant in a foreign bribery matter is not able to argue that prosecution needs to establish an intention to bribe a particular foreign official."
In the Second Reading Speech to the 2015 Bill, the Minister for Justice, the Hon. Michael Keenan, said in part: "Foreign bribery, war crimes Certain measures in the bill are designed to ensure that Australia meets its obligations under international laws. The bill will strengthen the [offence] of bribing a foreign public official to clarify that proof of intent to influence a particular foreign official is not required to establish the offence. This reflects Australia's obligations under the OECD Anti-Bribery Convention and sends a strong message that Australia takes a zero-tolerance approach to corruption." [Emphasis added.] (Parliamentary Debates (Cth), House of Representatives, 19 March 2015, p.2910-2911)
The 2015 Amendment is relevant because it was submitted on behalf of the offenders that their pleas of guilty had the consequence that the question whether the Crown was, at the relevant time, obliged to prove that they intended to bribe a particular foreign official did not need to be resolved. They submitted that, had the question been resolved in their favour, the Crown could not have proved its case. It was submitted that their pleas in those circumstances showed that they intended to facilitate the course of justice which ought to be taken into account in their favour. This question will be addressed below in the context of the factors affecting sentencing.

[58]

The relevance of the extrinsic materials in the present case

I have referred to these extrinsic materials for the purpose of identifying the object of the provision and how it relates to its domestic counterpart.
Each of the offenders, by his counsel, submitted, in effect, that because the object of the conspiracy was to bribe a foreign public official in Iraq, the offence ought be regarded as considerably less serious than bribery of a Commonwealth public official in Australia. Mr Scragg, who appeared for Mr Jousif, submitted that: "The unofficial system of benefits was a pervasive part of business with Iraq."
Mr Djemal, who appeared for Mamdouh, said, in a submission which was adopted by Mr Scragg and Mr James QC, who appeared for Ibrahim: "At the end of the day, they acquiesced with some pressure to a demand that came from what would have been a pretty contaminated pool and these men did not contaminate it. . . .if the pool is contaminated already, notwithstanding we don't know about it, the damage we have done to that particular foreign individual or economy, by jumping into that pool is far less than if we've gone into a pristine pool and corrupted someone."
The Crown submitted that, even were it to be assumed that corruption is more common in Iraq than in Australia, one of the purposes of s 70.2 is to treat corruption of a foreign official in the same way as corruption of a local (Commonwealth) official. It contended that, in these circumstances, the (assumed) prevalence of corruption in Iraq could not, consistently with the object of the legislation, lessen the seriousness of the offence.
It could be argued that Iraq, having regard to its recent history, was vulnerable and lacked the controls and protections against corruption that may be available in other nation states such as Australia. Its need for infrastructure, having regard to the destruction caused by recent wars and unrest, may have made Iraq particularly susceptible to rent-seekers who were engaged to construct such infrastructure. If these matters were relevant, a conspiracy to bribe an Iraqi official could be regarded as more heinous than to bribe a Commonwealth official in Australia, where such conduct might be more likely to be detected. In Australia departures from the usual public tender system or selection on a basis other than merit might lead a conscientious public servant to become a whistle-blower; questions might be asked in Parliament or Senate Estimates; a public inquiry and police investigation might ensue and "unexplained wealth" might end up being forfeited under the Proceeds of Crime Act 2002 (Cth). I do not mean to suggest by these observations that this, or any other, country is immune from the corruption occasioned by bribery: see, for example, Jackson & Hakim v R (1988) 33 A Crim R 413 and Valsamakis v R [2016] NSWCCA 156.
I am, however, persuaded by the Crown's submissions that the considerations relied on by the offenders referred to above are not mitigating and do not diminish the seriousness of the offence. Nor does the apparent vulnerability of Iraq increase it. The evident parliamentary intention when implementing Australia's obligations under the Convention by enacting Division 70 of the Code was to make laws criminalising bribery of foreign public officials correspond to local laws criminalising bribery of local public officials. In these circumstances, it is not to the point whether corruption is thought to be more common in the nation where the foreign public official is located than in the jurisdiction which conducts the prosecution.
This construction is consistent with the approach taken by the Crown Court (UK) in Regina v Innospec Limited 2010 WL 3580845 by Thomas LJ who said at [30]: "There can be no doubt that corruption of foreign government officials or foreign government ministers is at the top end of serious corporate offending both in terms of culpability and harm. It is deliberate and intentional wrongdoing. It causes serious harm.. . . It is no mitigation to say others do it or it is a way of doing business. The international community has taken its stand in the OECD Convention on Combating Bribery of Foreign Public Officials 1997 to which the UK is a party. Article 3.1 requires State parties to the Convention to apply criminal penalties which are 'effective, proportionate and dissuasive'." [Emphasis added.]

[60]

Mr Jousif

Mr Jousif was, at the outset, well aware that it was likely to be necessary for the Elomars to be required to bribe an Iraqi official if they were to do business in Iraq as his early conversations with Ms Abraham revealed. He sought to keep this fact from the Elomars until Ibrahim had arrived in Iraq and had seen the infrastructure projects that would be on offer to successful companies who obtained contracts with Al Rasheed.
Mr Jousif was, in effect, a middle-man, conduit and facilitator, between the Elomars and Mr Al Zubaidi and certain members of the Ministry of Industry and Minerals in Iraq. On several occasions he discussed with Mr Al Zubaidi the need to pay officials in Iraq.
Mr Jousif encouraged the Elomars to visit Iraq and meet officials to see the work that was on offer. He accompanied Ibrahim in Iraq, introduced him to Mr Al Zubaidi and went with him to meetings with Iraqi government officials. He urged the Elomars to expend considerable sums in Iraq legally, including for the establishment of the house in Iraq which was to be Lifese's office and the registration of the company with several ministries, before they were aware that a bribe would be necessary.
He and Mr Al Zubaidi engaged in a co-operative effort, which involved using various tactics, outlined in the above narrative, to persuade the Elomars to transfer the money for the bribe. Mr Jousif was persistent and showed an almost daily commitment to the task, as the above narrative demonstrates.
I do not regard Mr Jousif's somewhat naïve disclosure to the Australian Border Force officers at Sydney airport when he returned from Iraq on 14 August 2014 that the payment of money was required in order to meet with officials and win contracts in Iraq as mitigating. Whatever led Mr Jousif to make the disclosure, I infer that within a day or two of his arrival, when he learned of Ibrahim's concern that he had been questioned at the airport, he appreciated the dangers of such admissions and the wrongfulness of the underlying conduct (paying an Iraqi official to get contracts).
As outlined above, the difficulties of transferring the money given the prohibition on sending money from Australia to Iraq were considerable. Mr Jousif liaised with the Elomars, Mr Al Zubaidi and the money remitters to overcome all impediments. He negotiated the exchange rate and the commission. He lied about the purpose of the transfer in order to conceal it and protect the Elomars as well as himself. Mr Jousif's acts in collecting the cash from the Elomars and transferring it in two tranches to Iraq through BRESM were significant to the progress and aims of the conspiracy. He also travelled to Iraq after the payment was made and, on his return, accompanied Mr Al Zubaidi to Australia where he met the Elomars. His involvement was integral and causative. He was a party to the conspiracy for the whole period alleged in the indictment.
Mr Jousif's motive throughout was to make money. Mr Scragg conceded that he received US$45,000 which was the sum he kept back from the US $1 million. The evidence is not sufficient to determine what he would have received had the bribe monies had their intended effect.

[61]

The Elomars

Although the criminality of Mamdouh and Ibrahim is to be assessed separately, much of what they knew and decided was common and joint.
In summary, the Elomars, together, authorised the payment of about US $1 million to Mr Al Zubaidi in Iraq, for the purpose of bribing unknown Iraqi foreign official/s, which led to at least A$1,035,000 being made available to Mr Jousif by them for that purpose. As directors and shareholders of Lifese, they caused Lifese to submit a tender to Al Rasheed relating to a pre-cast concrete plant for US$8,474,177 in the expectation that Lifese would obtain favourable treatment as a result of the bribe. Lifese was also preparing tenders for a waste recycling plant at Karbala province Iraq worth approximately US$388-454 million and was actively engaged in attempting to source Iraqi government oil refinery contracts on the same basis.
As referred to above, the Elomars were approached by Mr Jousif to investigate business opportunities in Iraq. There is no suggestion that, but for Mr Jousif's approach, they were contemplating doing business in Iraq. Nor is there any suggestion that the Elomars appreciated, before August 2014, that doing business in Iraq would involve the payment of a bribe or any other illegality. Indeed Mr Jousif and Ms Abraham sought, at least at the outset, to keep from the Elomars that they would have to bribe an official if they wanted the work. The Elomars were, however, alive to the risk of being exploited by local Iraqis who wanted a portion of payments made, as evidenced by the conversation between them on 31 July 2014 where they were sceptical about the actual price for the registration of Lifese.
It was submitted on their behalf that their lack of awareness of the supposed "need" to bribe an Iraqi foreign official to get contracts lessened the gravity of their offending. Mr Djemal made the following submission (which was adopted by Mr James): "If the pool is corrupt and we go in clean and it contaminates us and we didn't know about that, and there is no evidence that we did, as an objective circumstance, my submission would be, your Honour, that that must bear some relevance when you look at the objective gravity, because it is an objective circumstance. I am not putting it in mitigation."
As far as the evidence reveals, the first time the Elomars knew that a substantial payment would have to be made to obtain a government contract from Al Rasheed was in August 2014 when Ibrahim was in Iraq. When Mr Jousif explained to Mamdouh (who was still in Australia) the need for a bribe to be paid, Mamdouh had reservations about paying the money "when we have nothing in our hands". It is plain that the Elomars would have preferred to be able to do business in Iraq lawfully without having to pay a bribe. I infer from the comments the Elomars made in the intercepted conversations (summarised in the agreed facts) that they were accustomed to doing business legally and wanted minutes of meetings taken and payments to be the subject of receipts and written contracts. From June 2013 until August 2014 they had paid sums of money for the establishment of what they believed to be a business which would be conducted lawfully by Lifese in Iraq. Considerable sums were spent on the house in Baghdad for Lifese's operations in Iraq and on registering the company with the ministries. There is no suggestion that any of the amounts paid by them, apart from the amount in the order of US$1 million, was paid unlawfully or was intended to be used to bribe a foreign official.
On 19 August 2014 when the Elomars discussed the demand for a bribe, Mamdouh was adamant that it would not be paid until they had received "the official paper". I infer that by this time both Elomars knew that the amount demanded was US$1 million. It is not possible to conclude from Mamdouh's initial response that his objection was a moral one, or exhibited a disinclination to break the law. His response is also consistent with the approach of an astute businessman who does not want to be taken advantage of and does not want to make a payment of US$1 million without any guaranteed return. As far as the Elomars were concerned they became parties to the conspiracy by 19 August 2014 or shortly thereafter. It is plain that they did not initiate the bribe; rather it was demanded from them as the price of doing business in Iraq.
Ibrahim was obviously taken by the size and number of projects on offer in Iraq as is evident from his conversations with Mr Ferris, including on 22 August 2014 shortly after his return from the first trip to Iraq when he bragged about his business prospects in Iraq. He appreciated, at least from 22 August 2014, that there were considerable legal and logistical impediments to the despatch of the US$1 million. He realised that it would require a sophisticated operation to get around the ban on all payments from Australia to Iraq. For example, he was not reassured by Mr Jousif's suggestion of 22 August 2014 that he could procure an invoice for $1.5 million for equipment to justify the payment.
I infer from Ibrahim's desire to involve Mr Lam, as evidenced by the communications on 23 August 2014, that Ibrahim had decided, at least by that time, that he would arrange for the bribe to be paid if he could. I infer that Mamdouh was of similar mind since he explained to Mr Lam that it would be better if the money (up to $1.2 million) was sent through Hong Kong rather than from Australia. The narrative set out above indicates that from at least 23 August 2014 there were numerous conversations about the best means for transferring the money for the bribe to Iraq. The money was not actually transferred until 3 and 4 September 2014. During this period, throughout which the Elomars appreciated that what they were proposing to do was illegal, there was a substantial level of planning involved. I reject the submissions made on behalf of the Elomars that their decision to send the money to Iraq was "not a deliberate or planned decision" as inconsistent with the agreed facts and the inferences to be drawn from them.
The Elomars' deliberation and planning was relatively sophisticated. They considered various options to transfer the money which are set out above. Although the method ultimately selected was rather crude, since it involved considerable quantities of cash, it had the advantage for the Elomars that the money could not (in the absence of telephone intercepts or other AFP surveillance) be traced to them.
The Elomars expressed considerable reservations about paying the amount. However their concern arose, at least in part, from the lack of documentation which had been provided to them from Iraq. Indeed, on 1 September 2014, they raised further concerns which Mr Jousif explained were as a result of hearing that another company had paid money and not obtained any work as a result.
The Elomars submitted that Ms Abraham, Mr Al Zubaidi and Mr Jousif "pressured and inveigled" them to pay the bribe. So much may be accepted. As a result of the combined efforts of the three go-betweens, the Elomars had invested psychologically as well as financially in Iraq before the bribe was demanded. They appear to have been, at least in part, susceptible to the sunk costs fallacy (the more you invest in something the harder it becomes to abandon it). As the narrative above demonstrates the Elomars were attracted by the glittering prizes of substantial infrastructure contracts in Iraq and the profits they believed they could make from them. Despite the range of techniques which were used by Mr Jousif and Mr Al Zubaidi to induce the Elomars to pay the bribe, the Elomars could have walked away from Iraq without transferring any money for the bribe at all. They were not hostages to fortune. They were seasoned, successful businessmen who calculated the risk and decided to transfer the money to Mr Al Zubaidi. It was their greed which motivated them to do so. Although Ibrahim expressed concern about what would happen to Mr Al Zubaidi if the bribe was not paid, I am not satisfied that this was other than a process of rationalisation and self-justification in which he engaged to minimise, to himself and Mr Jousif, the gravity of his wrong-doing. I reject the submission made on behalf of the Elomars that they were "coerced", although I accept that their greed was manipulated by others.
Just as it could be said that Mr Jousif exploited the Elomars, they also used him. When Mr Jousif stood in the premises of BRESM with the black nylon sack containing over A$1 million and learned that it was insufficient to lie to Mr Alhamdani and tell him that the money was a donation to help the Christian people of North Iraq, he was understandably fearful. He sought time to obtain identification documents from others so that he would not be recorded as the only one making the transfer. The following day he was able to come up with one other driver licence from someone who, as far as the evidence revealed, had no connection with the money. In the meantime, the Elomars, who provided the money, made sure that it was Mr Jousif who was the one to effect the transfer of funds to Iraq and therefore the one who stood the greatest chance of being prosecuted, if not for bribery, then at least for breaching the prohibition on transferring funds from Australia to Iraq.
It was suggested that the Elomars' criminality was lessened by the circumstance that they were concerned for the employees of Lifese. Ibrahim assured Mr Ferris that it would not be necessary to use "ex-pats" in Iraq. He told the AFP when he was interviewed on 19 February 2015 that he intended to send one manager and one accountant. The evidence does not reveal how Lifese's employees in Australia would have benefited.
While the Elomars might not have known, at the time of its commission, of the particular offence to which they have pleaded guilty I infer that they knew that it was both morally wrong and illegal to bribe an official, whether foreign or otherwise.
It was submitted on behalf of the Elomars that "[t]he amount [of the bribe] itself, having regard to the extent of work the company might have to undertake, should not be regarded as a very large amount". The corollary of this submission is that the profits which the Elomars expected to make from the work which would be allocated as a result of the bribe made the amount of the bribe, US$1 million, relatively insignificant. The evidence is not sufficient to quantify the worth of the contracts (either in terms of value or net profit to Lifese or to the Elomars as shareholders) which were to be allocated if the conspiracy had achieved its purpose. Without an indication of the margin, it is not possible to convert the cumulative cost of US$400-500 from the three projects (referred to in Lifese's internal document referred to above) to an expected profit. However, I infer that the prospect of future profits was sufficiently enticing to make the Elomars consider it to be worth their while paying US$1 million for the opportunity to realise them. I regard the amount paid, in this context, as both substantial and significant.
It was also submitted on behalf of the Elomars that they "only participated in the payment of illegitimate money on one occasion and when requested to pay further money, which was not in accordance with formalised contractual obligation, they refused." So much may be accepted. It may have been, in effect, a single payment but it was a substantial one which was made after serious deliberation. The Elomars' subsequent refusals to make further payments are consistent with their fear of being taken advantage of and do not indicate any moral aversion to bribery.
There is little to distinguish the Elomars in terms of the seriousness of the criminal conduct. Ibrahim travelled to Iraq but Mamdouh would probably have accompanied him but for his operation. The agreed facts contain more conversations to which Ibrahim was a party. However, this can be explained by the circumstance that it was Ibrahim's phone and not Mamdouh's in respect of which a warrant for interception was obtained. The narrative above indicates that the Elomars consulted each other regularly about matters concerning Lifese and its proposed business in Iraq. The relevant decision-making was joint and collaborative. While Mamdouh appears to have expressed more reservations than Ibrahim did, it is not clear the extent to which they tried to use each other's objections for tactical advantage in negotiations with the Iraqis. For example, Ibrahim told Mr Al Zubaidi on 30 August 2014 that no money would be paid as Mamdouh was "very angry" because no documentation about projects had been received. At all events, it appears to have been Mamdouh who handed over the cash to Mr Jousif in early September 2014. The narrative above sets out, in summary, their respective acts and roles. Their criminality cannot be distinguished in any material way.
I regard both Ibrahim and Mamdouh, both separately and together, as integral, and closely connected, to the decision to send the monies for the bribe in the expectation of obtaining government contracts. The conspiracy to which the Elomars were parties began in mid-August 2014 and continued until their arrest in February 2015.

[65]

The degree to which the offender has shown contrition for the offence and the plea of guilty (s 16A(2)(f) and (g))

As referred to above, each of the offenders pleaded guilty to the offences. In some circumstances a plea of guilty may indicate contrition by demonstrating genuine remorse; an acceptance of responsibility; and/or a willingness to facilitate the administration of justice. Whether it tends to indicate a willingness to facilitate the administration of justice depends in turn on the perceived strength of the Crown case. Although the Crown case against each offender might be regarded in all other respects as strong (having regard to the extensive investigation and real-time telephone intercepts), it was, potentially, at least, deficient in one material respect. The Crown was apparently unable to prove the identity of the particular Iraqi public official or public officials who were to be bribed. The Amended Court Attendance Notice in respect of Mr Jousif dated 20 February 2015 (upon which he was committed for trial) particularised that the intended beneficiary of the conspiracy was: "An unknown public official in the Iraqi Ministry for Industry and Minerals represented by Al-Rasheed State Co."
Whether proof of the identity of the particular foreign official or officials was required prior to the 2015 Amendment has not been determined. It need not, by reason of the pleas of guilty, be determined in the present case and need not, for future prosecutions, be determined by reason of the 2015 Amendment. Thus, the pleas of guilty not only obviated the need for a trial which was estimated to take in the order of four to six weeks, but also avoided the possibility of an appeal on this question. I infer that the offenders intended their pleas to have that effect. These are matters in mitigation and are relevant to s 16A(2)(f) and (g).
In these circumstances, I infer that each of the offenders has expressed some degree of contrition by pleading guilty a week before the trial was due to commence. Their several intentions to facilitate the administration of justice have had the effect that the time and costs of the trial, with potential appeals, have been saved. In these circumstances it is unnecessary to address the inconsistencies in decisions of intermediate appellate courts on the question whether the utilitarian value of a plea can be taken into account since it is uncontroversial that, when sentencing for Commonwealth offences, an intention to facilitate the administration of justice and the extent to which the intention has had an effect can be taken into account: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at [14].

[67]

The deterrent effect that any sentence may have on other persons (s 16A(2)(ja))

Section 16A(2)(ja) was inserted into the Crimes Act by the 2015 Amendment. It applies in relation to determining a sentence to be passed in respect of a person, whether the person is convicted before, at, or after that commencement. Accordingly, the deterrent effect that any sentence may have on other persons, usually referred to as general deterrence, is to be taken into account in the present case under s 16A(2)(ja), in so far as it is relevant.
The Crown submitted that the need for general deterrence was of paramount importance. It invited the Court to draw the inference that such offences are difficult to detect, investigate and prosecute. It contended that there was a need to send an appropriate message to individuals, employees and directors alike who may contemplate bribing a foreign official that such conduct is not merely a "way of doing business" and that such conduct may attract a full-time custodial penalty.
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.

[68]

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.

[69]

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.

[70]

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.

[71]

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.

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