Jail terms should be spared for two men who conspired against the Finance Department because of their "partly good intentions" and not a "single dollar" was proven to have been taken, the offenders' lawyers have argued.
Department worker Abdul Aziz El-Debel and IT consultant Raminder Singh Kahlon had pleaded not guilty to conspiring with each other and a third man with the intention of dishonestly obtaining a gain from the Commonwealth between March 2019 and June 2020.
The conspiracy alleged was to influence the department's procurement processes relating to contractual projects to favour candidates at Kahlon's and the third man's businesses.
As part of the agreement, the trio then allegedly shared in a portion of the profit margins the businesses received.
The third man, whose name is subject to a non-publication order, was not part of the ACT Supreme Court trial with El-Debel, also known as Alex, and Kahlon that ran in June to July. The jury subsequently found the duo guilty.
They fronted court on Friday for sentencing proceedings when barrister Catherine Newman, for El-Debel, said her client's motivation was to find the best candidates.
"The conspiracy occurred during a period of extreme stress when Mr El-Debel and [the third accused] were finding it very difficult to recruit suitable personnel," Ms Newman said.
"With this motivation at play, the Commonwealth was never going to lose.
"The Crown submitted the only thing that made the process criminal was the agreement to pay Alex."
The trial heard a phone conversation between the two offenders in which El-Debel said "three, four" that was alleged to have been referring to $34,000.
However, Ms Newman said "it's just not linked to anything".
"It can't be linked to this conspiracy, it can't be linked to any influencing or corrupting of any processes," she said.
"The Crown can't prove there was any money. The Crown case was always that they couldn't prove a single dollar ... certainly not to the criminal standard."
Ms Newman said it was "just not appropriate" to sentence her client to full-time jail and that it "just can't be the case" that there were no alternatives.
She said an intensive corrections order or recognisance release order were the only appropriate penalties and that El-Debel has suffered extra-curial punishment from media reporting of the case.
Matthew Kalyk, representing Kahlon, said the offenders "sought to get the best candidates and did in fact get the best candidates".
"It is a no-loss case or minimal-loss case," Mr Kalyk said.
He said this was dissimilar to insider trading cases because of the "partly good intentions of the offenders" and cited a community-based order for his client.
"Insider trading is not done for the benefits of the market. It's done only for the offender's benefit," he said.
"This is not that case. The offenders here were partly trying to help the victim."
Prosecutor Joshua Nottle said full-time jail terms were warranted and compared the offending to insider trading cases, saying the "same sort of principles apply" in sentencing the two offenders.
However, he admitted "our research has proved to be relatively unsuccessful in terms of finding a good comparative [case]".
"These offenders used an unfair advantage to conspire to obtain the margins on the contracts," Mr Nottle said.
He said the essential feature of the offending was the agreement and that the detriments to the Commonwealth included candidate selectors losing the chance to fairly assess all candidates.
"The public is entitled to expect that their tax dollars would be deployed in a fair, transparent and even-handed manner," Mr Nottle said.
Justice Michael Elkaim has scheduled next Tuesday to deliver his fact finding and sentences.
