Date of Judgment: 19 August 2020
Court: District Court of NSW
Partner Agency: Australian Federal Police
Summary of charges: The offender pleaded guilty to two offences of causing bribes totalling AUD129,500 to be paid to foreign public officials, contrary to section 70.2(1)(a)(ii) of the Criminal Code 1995 (Cth). The matter relates to payments made for business advantage in relation to the shipping of rock phosphate from Nauru to Australia.
Multiple actions were rolled up into Charge 1, that between 11 August 2015 and 30 September 2015, the offender caused AUD109,500 in benefits to be paid to the foreign public officials with the intention of influencing them in the exercise of their duties to retain a business advantage that was not legitimately due.
Charge 2 was also a rolled up count, that between 26 June 2017 and 29 June 2017, the offender caused AUD20,000 in benefits to be paid to the foreign public officials with the intention of influencing them in the exercise of their duties to retain a business advantage that was not legitimately due. The maximum penalty for each of the offences is 10 years imprisonment and/or a fine of 10,000 penalty units.
Synopsis: The defendant controlled a number of companies based across Australia, Nauru, India and the United Arab Emirates under the banner ‘Radiance’. Three of these companies were involved in the trading, shipping, and importing of rock phosphate from Nauru to Australia.
During the relevant period, the defendant made illegitimate payments totalling AUD109,500 in 2015 and AUD20,000 in 2017 to Nauruan foreign public officials (FPOs) to secure, on behalf of Radiance Minerals, a timing advantage in relation to the allocation of phosphate for shipment in a competitive market, so as to ensure Radiance Minerals was able to ship and deliver phosphate to meet its customers’ demands in Australia.
The Radiance companies earned significant profits on the shipments of phosphate to its Australian-based customers. The profits on a given shipment funded the payment of bribes or ‘commissions’ to the Nauruan FPOs responsible for the prior allocation of the phosphate shipment to Radiance Minerals.
The defendant communicated with the FPOs to negotiate and arrange the payment of the bribes to obtain the advantage on the phosphate shipments. The bribes were generally calculated by reference to the expected purchase price and anticipated profit for the corresponding shipment.
Key points: Prosecuting Counsel contended that an intensive corrections order (ICO) would not be sufficient in relation to general deterrence, denunciation and adequate punishment. Her Honour stated that Chapter 4 legislation is plainly directed towards transparency, integrity and the rule of law in vulnerable foreign states, as well as enhancing fairness and competitiveness in international commercial transactions. While both bribes were to secure a timing advantage, there was a financial gain in that the bribes lead to significant profits for the offender’s company.
Her Honour then noted that while the offender did obtain an advantage over rival bidders, the price paid for the phosphate was independently and legitimately determined, thus this did not cause a loss of income to the people of Nauru. This is was deemed a relevant factor in the assessment of objective seriousness of the offending. It was concluded Charge 1 was below the mid-range of objective seriousness and Charge 2 was at the low end of the range.
Sentencing: Her Honour considered Mr Bhojani had presented a very compelling subjective case, noting his lack of prior record, strong and consistent indication in character references and testimonials, the impact of the charges on both him and his business, and his expressions of genuine insight, contrition and remorse. Her Honour also took into consideration the offender’s ill health.
Her Honour stated the offender had ‘admirable personal attributes’ such as generosity, was a ‘generally ethical’ person, this offending was ‘completely out of character’ and there was an overwhelming conclusion from the material that the offender is ‘highly unlikely to re-offend’. Her Honour took into account the pleas of guilty, which were entered at the first available opportunity in the Local Court, and the sentence was to be reduced by 25 per cent for the utilitarian value of the pleas. It was then noted the sentence must reflect all elements of punishment including objective seriousness, specific and general deterrence, denunciation and the offender’s subjective circumstance and that imprisonment was appropriate. Her Honour took into account the offender served one day in custody.
Indicative sentences were outlined:
- Charge 1: two years.
- Charge 2: one year.
Sentence: convicted on both offences with a fixed aggregate sentence of two years and six months, to be served by way of ICO with standard conditions [(a) must not commit and offence and (b) supervision] and the additional condition of community service work for 400 hours.
Relevant links: Hear more about the matter on the ABC website.