Mehajer v The The King

[2022] NSWCCA 240

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mehajer v R [2022] NSWCCA 240

Hearing dates:

15 July 2022

Date of orders:

18 November 2022

Decision date:

18 November 2022

Before:

Bell CJ; Gleeson JA; Yehia J

Decision:

(1)   Leave to appeal against conviction granted on grounds 1, 2, 4 and 5.

(2)   The application to admit fresh or new evidence on appeal is refused.

(3)   Appeal against conviction dismissed.

(4)   Leave to appeal against sentence granted.

(5)   Appeal against sentence dismissed.

(6)   Release application filed 5 August 2022 dismissed.

Catchwords:

CRIME – Appeal against conviction – leave to appeal – judge alone trial – application to rely on new and fresh evidence – whether excessive intervention by trial judge – whether judge’s questioning caused miscarriage of justice – whether prosecution complied with disclosure obligations – data downloaded from applicant’s mobile phones – whether data provided in advance of trial – whether guilty verdicts unreasonable or unsupported by the evidence

CRIME – Appeal against sentence – leave to appeal – appeal against sentence – two offences of perverting the course of justice and one offence of perjury – whether error in assessment of need for specific deterrence – whether aggregate sentence double punishment or crushing – whether failure to give adequate weight to conditions in custody – whether sentence was manifestly excessive

CRIME – Bail – bail pending appeal – where two previous appeal bail applications dismissed by Court of appeal – whether change in circumstances since previous application – Bail Act 2013 (NSW) ss 74(1), (3)

Legislation Cited:

Bail Act 2013 (NSW), ss 4, 22, 49, 74

Crimes Act 1900 (NSW), ss 319, 327

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 53A

Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5(1)(c), 6(1)

Criminal Procedure Act 1986 (NSW), ss 61, 62, 63

Director of Public Prosecutions Act 1986 (NSW), s 15A

Cases Cited:

Bugmy v R (2013) 249 CLR 571; [2013] HCA 37

Dansie v The Queen [2022] HCA 25; (2022) 403 ALR 221

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154

Ellis v R [2015] NSWCCA 262

FB v R; R v FB [2011] NSWCCA 217

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Galea v Galea (1990) 19 NSWLR 263

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26

JJ v R [2020] NSWCCA 165

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Marinellis v R [2006] NSWCCA 307

Masters v R [2022] NSWCCA 228

Mehajer v Director of Public Prosecutions (NSW) [2022] NSWCCA 23

Mehajer v R [2022] NSWCCA 135

MRW v R [2011] NSWCCA 260

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

PO v R [2020] NSWCCA 129

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128

R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417

R v Esposito (1998) 45 NSWLR 442

R v Finnie and Finnie [2007] NSWCCA 38

R v Fish; R v Swan [2002] NSWCCA 196; (2002) 131 A Crim R 172

R v Linehan [1921] VLR 582; (1921) 27 ALR 348

R v Thompson [2002] NSWCCA 149; (2002) 130 A Crim R 24

R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382

R v Van Ryn [2016] NSWCCA 1

Tarrant v R [2018] NSWCCA 21

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371

Category:

Principal judgment

Parties:

Salim Mehajer (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:
Applicant in person
B Hatfield (Respondent)

Solicitors:
Salim Mehajer (Applicant) (Self-represented)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/23732

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

2 October 2020, 23 April 2021

Before:

Zahra SC DCJ

File Number(s):

2018/23732

Judgment

1. THE COURT: This is an application for leave to appeal against conviction, or alternatively sentence, following a trial of the applicant, Salim Mehajer, by judge alone in the District Court. The applicant was tried and convicted on two counts of doing an act with the intent to pervert the course of justice, and one count of making a false statement on oath, knowing the statement to be false, concerning a matter material to judicial proceedings, as follows:

1   Between 10 December 2017 and 15 December 2017, in Burwood and elsewhere in the State of New South Wales, did an act namely, the swearing and use of a false Affidavit, with intent thereby to pervert the course of justice.

2   On 14 December 2017 at Burwood in the State of New South Wales, in connection with an application to vary bail conditions, made a false statement on oath, knowing the statement to be false, concerning a matter material to the proceedings, namely whether he had employment which was impacted by bail conditions which had earlier been imposed.

3   On 7 March 2018, in Burwood in the State of New South Wales, did an act, namely, provide false information as to the circumstances of his employment, with intent thereby to pervert the course of justice.

2. Counts 1 and 3 were laid under s 319 of the Crimes Act 1900 (NSW), in these terms:

319 General offence of perverting the course of justice

A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.

3. Count 2 was laid under s 327(1) of the Crimes Act, in these terms:

327    Offence of perjury

(1)   Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to imprisonment for 10 years.

4. The trial was conducted over 24 days between June and August 2020. On 16 September 2020, the defence made an application to reopen the case to tender a psychiatric report concerning the applicant’s mental state. That application was allowed. On 2 October 2020, the trial judge (Zahra SC DCJ) found the applicant guilty and convicted him on each of the three counts and published his reasons for decision (the verdict judgment).

5. On 23 April 2021, Judge Zahra SC imposed an aggregate sentence of imprisonment of 3 years and 6 months, with an aggregate non-parole period of 2 years and 3 months.

6. Leave to appeal against conviction is required as the grounds involve a question of mixed fact and law: Criminal Appeal Act 1912 (NSW), s 5(1)(b). Leave to appeal against sentence is also required: Criminal Appeal Act, s 5(1)(c). In each case, there should be a grant of leave. It is convenient to continue to refer to Mr Mehajer as the applicant.

7. At trial, the applicant was represented by counsel. In this Court he was self-represented. His written submissions in chief were lengthy, extending to 80 pages, including 45 pages in handwriting. His affidavit in support of an application to admit new and fresh evidence on appeal comprised 12 pages together with 135 pages as annexures. In oral argument, the applicant was articulate and focused in advancing his case on appeal. After the Court reserved judgment, the applicant sought leave to rely upon an unsworn affidavit advancing new and further argument in support of his appeals. The applicant also filed a release application pending the determination of the appeal. These applications are addressed below.

8. For the reasons that follow, both appeals should be dismissed.

Outline of the background facts

9. The applicant was the sole shareholder in two companies, SET Services Pty Ltd (SET Services) and Sydney Project Group Pty Ltd (Sydney Project Group), which owned two parcels of land at John Street, Lidcombe upon which the development of “Skypoint Towers”, a 10-storey mixed residential and commercial tower, commenced in 2014.

10. In May 2016, the development was refinanced by SC Lowy Financial (HK) Ltd (SC Lowy), a Hong Kong based alternative asset manager and broker, and LIM Opportunistic Fund 2 LP (LIM). As part of those arrangements, Mr Kenneth Lee from SC Lowy was appointed as sole director and secretary of the applicant’s companies, SET Services and Sydney Project Group, on 26 April 2016. Mr Lee ceased to be a director of those companies on 16 June 2017. Mr Ben Madsen, an employee of SC Lowy, was responsible for SC Lowy’s exposure to SET Services and Sydney Project Group, which at certain points of time was in excess of $90 million.

11. In mid-2017, the development encountered financial difficulties. On 16 June 2017, Mr Lee as the sole director of SET Services and Sydney Project Group appointed Mr Michael Hogan and Mr Christian Sprowles as voluntary administrators of those companies. Also on that date, SC Lowy and LIM appointed Mr Todd Gammel and Mr Barry Taylor (of HLB Mann Judd) as receivers and managers of those companies. The receivers’ main contact with SC Lowy was Mr Madsen.

12. The construction of Skypoint Towers completed in July 2017 and sales of the apartments were progressively completed, and owners commenced moving into the building. On about 21 July 2017, the receivers appointed Sarraf Strata as the interim strata managers of the development having sought proposals from prospective strata management companies to act as the strata manager for the interim period up to the first annual general meeting (AGM) of the owners corporation for the residential and commercial strata schemes.

13. On 16 August 2017, three companies were registered: Skypoint Strata Services Pty Ltd (Skypoint Strata Services), On Call Strata Services Pty Ltd (On Call Strata Services), and On Call Strata (NSW) Pty Ltd (On Call Strata NSW), with Mr Mohammed Abbas as the director and secretary of each company; he was the applicant’s solicitor in relation to the Skypoint Towers development. The applicant was the sole shareholder of On Call Strata NSW, which in turn was the sole shareholder in Skypoint Strata Services and On Call Strata Services. Hence, the applicant controlled those two companies.

14. During August 2017, the applicant represented himself as the interim building manager to occupiers and to the interim strata manager, Sarraf Strata. This was done without the knowledge or consent of the receivers. In late August 2017, the receivers became aware that On Call Strata Services and Skypoint Strata Services were representing themselves as the building managers through notices posted in the lobby of Skypoint Towers. The receivers also became aware that Ms Constantina Siaflina was purporting to provide “concierge” services to occupants at Skypoint Towers and was occupying a unit on the ninth floor without authority. The receivers took steps to prevent the applicant accessing the site and informed both Ms Siaflina and the applicant that they were acting without authority of the receivers.

15. On 6 September 2017, the receivers appointed the Lefand Group as the interim building managers until the first AGM. This appointment was recorded in an agreement signed by the receivers and the Lefand Group on 8 September 2017 (Ex 18). The agreement included the quotation by the Lefand Group of $6,950 plus GST per month for “[b]uilding management on-site, 20 Hours a week plus 24/7 emergency support, inclusive of all meetings” (emphasis in original).

16. On 9 November 2017, Sarraf Strata informed the receivers that due to delays in finalising the development they could no longer act as interim strata managers, for which they had not been charging any fees. On 29 November 2017, the receivers appointed Prestige Strata as the interim strata managers until the first AGM.

17. The agenda for the first AGM of the residential strata plan included in item 10 (“Building Management Contract”) reference to three contracts/quotes to be tabled, and one was to be accepted from Skypoint Strata Services, Lefand Group and Prestige Strata. The proposal from Skypoint Strata Services was ultimately not tabled at the meeting because Ms Maree Lane of Prestige Strata considered that Skypoint Strata Services was associated with a developer, being the applicant.

18. At the first AGM meeting on 19 December 2017, the owners corporation for the residential strata plan appointed Prestige Strata as the strata managing agent and the Lefand Group as the strata building manager. The receivers retired shortly thereafter on 22 December 2017. The first AGM in respect of the commercial strata plan in Skypoint Towers was not held on the scheduled date of 19 December 2017 due to non-attendance; that meeting was adjourned to 30 January 2018, when the Lefand Group was appointed as the building manager of the commercial properties.

Nature of the Crown case

19. The Crown case was that the receivers had exclusive responsibility for the control and management of the development, including the appointment of interim strata managers and building managers of Skypoint Towers.

20. On the Crown case, the receivers never appointed the applicant or any of his companies, specifically, On Call Strata Services or Skypoint Strata Services, as interim building manager of Skypoint Towers in August 2017 or at any time up until the first AGM of the owners corporation on 19 December 2017, when the Lefand Group was appointed the building managers of the residential properties. It was also the Crown case that, contrary to the applicant’s assertions, Mr Madsen of SC Lowy had no authority to appoint the applicant or any of his companies as interim building manager of Skypoint Towers, nor did Mr Madsen ever do so.

21. The three offences alleged against the applicant arose in the context of two separate bail applications made by the applicant. Counts 1 and 2 relate to an application to vary bail conditions heard on 14 December 2017 at the Burwood Local Court. Count 3 relates to a release application heard on 7 March 2018, also at Burwood Local Court.

Count 1

22. The applicant had been charged on 20 November 2017 with several domestic violence-related offences. He was granted conditional bail that day at Burwood Local Court. One of the bail conditions was that the applicant observe a daily curfew by residing at his home between 10 pm and 5 am.

23. In support of an application to vary bail the applicant swore an affidavit on 11 December 2017 deposing that he had been awarded a contract for building management, security and concierge services at the Skypoint Towers building and that he would be unable to perform his obligations under that contract unless his bail conditions were varied. The relevant contents of that affidavit, including an attached letter from Mr Alidine (Ali) Ramadan, General Manager of On Call Strata Services, is reproduced at [78]-[79] below.

24. The Crown case was that the affidavit was false, that the applicant knew that the assertion that he had been awarded the contract was false and that he made the false assertion with intent to mislead the Court and obstruct the proper assessment of the Court of the matters it was required to consider in making a determination under the Bail Act 2013 (NSW). This conduct was the subject of count 1.

Count 2

25. On 14 December 2017, the applicant’s 11 December affidavit was placed before the Magistrate at the Burwood Local Court during the bail variation hearing. The applicant was self-represented. He gave sworn evidence confirming the truth of the contents of his affidavit and particularised further details of the employment contract. The applicant’s oral evidence included:

Q.   You say in your affidavit that you’re a building manager?

A.   That is correct.

Q.   For Skypoint Towers at Lidcombe?

A.   Yes.

Q.   And you say you got that contract on 15 September 2017?

A.   That is correct.

Q.   Two months before your first bail application was made?

A.   Yes.

26. This conduct was the subject of count 2. The application to vary bail was refused.

Count 3

27. On 23 January 2018, the applicant was arrested in relation to a separate charge of perverting the course of justice and related charges and was refused bail by the police. He made a release application which was refused by the Magistrate at the Waverley Local Court on 24 January 2018.

28. On 7 February 2018, the applicant made a release application at Burwood Local Court. He was represented by counsel. The Magistrate refused to hear the application, given s 74 of the Bail Act prohibits a court hearing another release application unless there are grounds for a further release application, being one of the grounds stated in s 74(3).

29. On 7 March 2018, the applicant made a further release application at Burwood Local Court. He was self-represented. When presenting his case under s 74(3) of the Bail Act, the applicant contended that there was further material relevant to the grant of bail which had not been presented on a previous application. The applicant tendered a bundle of documents comprising 77 pages, which included three documents (the contents of which are relevantly reproduced at [94]-[96] below), being:

• letters to the applicant on the letterhead of Skypoint Strata Services and On Call Strata Services dated 14 February and 24 February 2018, both signed by Mr Ramadan, and

• a 17-page “proposal document” titled “Skypoint Towers Lidcombe” setting out a building management proposal for building management services to be provided by Skypoint Strata Services and On Call Strata Services, signed by Mr Ramadan and the applicant and dated 19 August 2018. (The applicant gave evidence at his trial that this date was an error and that the document was signed in August 2017.)

30. The applicant relied upon the proposal document as evidence of an employment agreement between himself and On Call Strata Services. The Crown case was that three documents forming part of the applicant’s tender bundle were false to the knowledge and belief of the applicant. The Crown alleged that the applicant knew that the content of these letters was false and falsely represented that the proposal document was an employment agreement in order to mislead the Court and obstruct the proper assessment by the Court of the matters the Court was required to consider in making a determination under the Bail Act. This conduct was the subject of count 3.

31. The release application was refused.

The defence case

32. The defence case was that the applicant believed he held an employment agreement with On Call Strata Services to provide building management services at Skypoint Towers at the time he swore his affidavit on 11 December 2017, when he gave evidence at the Burwood Local Court on 14 December 2017, and when he made submissions and presented material at the Burwood Local Court on 7 March 2018.

33. The defence case contended that:

1. prior to the appointment of the receivers in June 2017, the applicant provided a free building management service to residents in the interim period before the first AGM of the owners corporation, and there was an expectation that the applicant, through his entities, would be appointed in the role of building manager at that meeting;

2. although the applicant believed the interim period before the first AGM of the owners corporation would be relatively brief, there was a delay for some period because of settlement negotiations with the financiers and receivers;

3. the applicant had provided building management services at Skypoint Towers personally and from mid-August 2017 in his capacity as an employee of On Call Strata Services, and this was a continuation of the arrangements that had been put in place with the builder and set out in the Residential Manual prepared by the builder, and following the appointment of the receivers in June 2017 the applicant continued to provide such services with the authority of the receivers;

4. against the background of the applicant threatening legal action about the appointment of the receivers that, in order to keep the applicant “onside”, Mr Madsen told the applicant that he could undertake the role of building manager;

1. the building management services provided by the applicant encompassed both the interim period up to the first AGM of the owners corporation on 19 December 2017 and the period after 19 December 2017, and the services he provided included building management services, concierge and security services at Skypoint Towers; and

2. if there was no building management agreement in place, the Crown could not exclude the possibility that the applicant believed that he was subject to an employment agreement with On Call Strata Services and that, acting on that belief, he acted to perform the agreement in the period between August 2017 to 7 March 2018 when he renewed his application for bail before the Burwood Local Court.

The verdict judgment

34. The trial judge’s reasons for verdict were detailed and comprehensive extending to over 200 pages, divided into five parts:

1. Part A addressed general directions of law to be applied by the judge. No complaint is made in relation to those directions;

2. Part B identified the elements of the offence and contained an overview of the evidence relied upon in the Crown case;

3. Part C considered the evidence at trial;

4. Part D addressed the defence case, specifically the evidence of the applicant, and summarised the submissions of defence counsel; and

5. Part E, headed “Determination”, summarised the Crown and defence cases, addressed the medical evidence adduced on the reopening of the applicant’s case, and set out the judge’s findings of fact and conclusions in relation to the three counts.

Elements of the offences

35. There is no dispute that the trial judge correctly identified the elements of the three alleged offences in Part A of his verdict reasons. As to counts 1 and 3 (perverting the course of justice), his Honour stated the elements of this offence (at [45] and [68]):

The Crown must prove ALL of the following elements beyond reasonable doubt in relation to the accused:

(1) The accused did any act; and

(2) That act was done with intent in any way to pervert the course of justice.

36. As to count 2 (perjury), his Honour stated the elements of this offence (at [57]):

The Crown must prove ALL of the following elements beyond reasonable doubt in relation to the accused:

(1) The accused in, or in connection with, a judicial proceeding made a false statement

(2) On oath;

(3) Concerning any matter which was material to the proceeding;

(4) Knowing the statement to be false, or not believing it to be true.

37. In addition, with respect to count 2, his Honour noted (at [58]-[62]) that the common law rule regarding the need for corroboration of evidence where a person is charged with perjury, applied to the statutory offence in s 327 of the Crimes Act, referring to R v Linehan [1921] VLR 582; (1921) 27 ALR 348 and R v Fish; R v Swan [2002] NSWCCA 196; (2002) 131 A Crim R 172 at [37]-[40] (Bell J, Ipp AJA and Dunford J agreeing). His Honour continued (at [62]-[63]):

[62] It follows from the decision in Linehan that the rule requiring corroboration is confined strictly to proof of the falsity of the statement and can be satisfied firstly, by evidence of two witnesses attesting to the falsity of the accused’s statement; secondly, by one witness with corroboration; thirdly, by the “…production of a record which proves itself shown to have known to the accused” and fourthly, by “documentary evidence springing from [the accused] himself” (at 588).

[63] In the circumstances of the Crown case here, the Crown must prove beyond reasonable doubt that the accused did make a false statement on oath that his employment conditions would be impacted by the bail conditions that had been imposed. The corroborating evidence must go to the falsity of the statement of the accused that his employment conditions would be impacted by the bail conditions that had been imposed.

The evidence relied upon in the Crown case

38. The trial judge referred in detail to the evidence in the Crown case at [92]-[279]. It is of assistance first to outline the evidence concerning the provision of building management services for Skypoint Towers.

39. In April 2017, the builder of the Skypoint Towers development, Alliance Project Group (Alliance), requested information from the applicant concerning the building management for inclusion in a “Residential Manual” to be given to occupants of Skypoint Towers upon settlement of sales of units in the development. The applicant provided the name and phone contact details for Skypoint Towers Pty Ltd (SPT) as the building manager. He was the sole shareholder of SPT.

40. In the section of the Residential Manual headed “Building Management”, it was stated that SPT had been appointed to provide onsite building management services for the building and gave SPT’s contact details and business number. In the section headed “Building defects”, the manual gave as contact details, the business number of SPT and the applicant’s mobile phone.

41. On 22 August 2017, the applicant sent an email to his accountant, Mr Boutros (Ex F), stating:

I’ve been rewarded the contract.

Income approximately $300,000 per annum.

Indeed, I am a fighter!!!

…

42. In late August 2017, the receivers became aware that Ms Siaflina was occupying unit 910 in Skypoint Towers and was purporting to provide “concierge manager” services to occupants at Skypoint Towers. One of the receivers, Mr Gammel, informed the applicant by email on 31 August 2017 that this conduct was unauthorised, that Ms Siaflina had not been engaged by the receivers or the strata manager and that she had not been granted access to the premises.

43. The applicant, who was then in the USA having departed on 23 August 2017, responded to Mr Gammel by email on 31 August 2017 stating that unit 910 was a display unit and no one was occupying it, and Ms Siaflina was the “strata / concierge” working with Sarraf Strata on a “free basis to assist tenants with defects and access”. Sarraf Strata separately confirmed to the receivers by email on 31 August 2017 that they had not approved any contractor on the site.

44. On 1 September 2017, Mr Gammel received an email from Ms Samantha Levenski “on behalf of Constance Siafla” (sic) requesting that “my position is reinstated until settlement takes place between those involved” and stating that her services were not yet costing “you, anyone anything”.

45. On 4 September 2017, Mr Hocking, on behalf of the receivers, sent an email to Ms Siaflina and Sarraf Strata noting that the receivers had become aware that Ms Siaflina had been providing concierge building management services without consent or engagement by the receivers and stating that the receivers would consider allowing her to continue in that interim role subject to receiving responses to seven questions.

46. The applicant returned to Australia on 4 September 2017. On 5 September 2017, Mr Hocking received an email from [email protected] responding to his 4 September email, with responses indicated in red which, relevantly, included:

I have been informed by Mr Abbas who is the director and lawyer of both companies, namely, On-Call Strata and Skypoint Strata Services PTY LTD to commence this complimentary service to the building.

…

My engagement was simple based that I work and be paid by Salim Mehajer at his own cost – not costing the companies any money. …

If appointed, I will only sacrifice my time to Skypoint Towers …

I would like your consent, be appointed free of charge (until the developer settles with the lender to commence servicing the occupants).

47. Mr Hocking responded by email on 5 September 2017 requesting that Ms Siaflina provide an engagement proposal and copies of current certificates of currency in respect of public liability, product liability and workers compensation insurance. Mr Gammel gave evidence that at this time the receivers were seeking a proposal from On Call Strata Services and Skypoint Strata Services, while also asking for proposals from other entities to have “comparative options”.

48. On 6 September 2017, Ms Siaflina sent an email to Mr Hocking asking, “Please advise if the attached satisfies your request”, being a reference to attached emails she was receiving from residents who were left without gas and electricity and whom she had to assist. Mr Hocking responded by email on 6 September 2017 informing Ms Siaflina that the “[r]eceivers were not able to consider a proposal for Skypoint Strata Pty Ltd, On-Call Strata Pty Ltd or Skypoint Towers Pty Ltd to be appointed as interim building services manager” giving five reasons, which included that an engagement proposal detailing the scope of the services and workers compensation insurance details had not been provided, the certificate of currency in relation to other insurance policies named Skypoint Towers Pty Ltd not Skypoint Strata/On-Call Strata, and that Skypoint Strata/On-Call Strata had been providing unauthorised building management services without the prior knowledge or consent of the receivers.

49. On 7 September 2017, Mr Hocking received an email from [email protected] responding to his 6 September email, containing responses in red which, relevantly, included:

Since our engagement was not official under names of Skypoint Strata Pty Ltd/On-Call Strata Pty Ltd (“SSOC”), I was working under the reliance of other firms’ insurances. ...

I will have to discuss this with the company director and see what actions he wishes to undertake. Whilst it is very difficult to understand how our proposal of zero dollars and zero cents and superior servicing can be overwritten by the appointment of another building manager – [which will be no chance, maintain the Skypoint reputation as we have]. …

If we are to be removed, it will be wise to allow Sarraf Strata to remain in control of this collectively. … Please reply to this email confirming how we stand. You must also keep in mind that that the administrators and receivers are only appointed on a “temporary” basis. Changing management, then having us return at a later date will only cause serious hardship, delays and tarnish our reputations.

50. Following the appointment of the Lefand Group as the interim building managers recorded in the agreement dated 8 September 2017, the Lefand Group appointed a contractor, Mr Donald Bong, to carry out the work of building manager. He gave evidence that he commenced on 11 September 2017 and continued in that role until 19 February 2018 when another colleague took over. He said that he attended the site daily, Monday to Friday, from 8 am to 4 pm, and he usually occupied the concierge desk and a security officer worked outside these hours. He was instructed by the receivers to contact them directly if the applicant entered the premises, which he did on one occasion, having seen the applicant on the CCTV recorder after hours on levels 9 and 10. Mr Raymond Diab was the relevant person at Sarraf Strata who undertook the duties as interim strata manager of Skypoint Towers. He gave evidence that once the Lefand Group was appointed by the receivers he did not deal with Ms Siaflina or the applicant; he said he dealt with Mr Bong from Lefand (J [250]).

51. On 11 September 2017, the applicant sent an email to Mr Gammel, copied to Mr Madsen, requesting that the receiver “reappoint” On Call Strata Services and Skypoint Strata Services until at least the first AGM. This email was referred to at trial as the “kind request” email, and relevantly stated:

A kind request:

1)   To reappoint Oncall Strata and Skypoint Strata Services, at least to the next AGM.

…

We are offering this service at zero dollars and zero cents to the companies.

…

The appointment of the concierge is required effective immediately.

52. Mr Madsen gave evidence that shortly after receiving this email he instructed Mr Gammel to reply to the applicant confirming that Sarraf Strata would remain the strata managers up until the first AGM and that the “Mehajer entities” would not be appointed as building managers or in any other role.

53. On 12 September 2017, Mr Hocking on behalf of the receivers sent an email to Ms Siaflina, copied to Mr Sarraf and Mr Gammel, informing her that the receiver’s position regarding the appointment of another building manager on an interim basis remained unchanged.

54. Mr Gammel sent an email to the applicant on 20 September 2017 at 3:07 pm, copied to Mr Madsen, which relevantly stated:

1. “[t]he position regarding the appointment of an interim building manager had been made clear”, and, the receivers understood that proposals to provide building management and concierge services on a permanent basis had been submitted to Sarraf Strata to be included in the first AGM notices of the residential strata plan and the building management committee, and would be put to owners for their consideration at the first meeting; and

2. occupation of units on level 9, including units 905 and 906, would likely erode the value in those units and increase costs to realise the units and the remaining assets of the building generally and the receivers had little option other than to remove any unlawful occupants from the development.

55. At 3:11 pm on 20 September 2017, the applicant replied by email to Mr Gammel, copied to Mr Madsen, stating that the two units (on level 9) were not occupied. Relevantly, the applicant did not assert that On Call Strata Services or Skypoint Strata Services was currently acting as the building manager of the Skypoint Towers.

56. On 5 October 2017 at 12:45 pm, the applicant sent an email to Mr Norman Sarraf of Sarraf Strata referring to a meeting which unfolded with the lender “today” and stated, “I am pleased to say concierge, security and building manager will be returned to us next week” (Ex J).

57. Mr Madsen gave evidence in cross-examination that it was highly likely that there were meetings or phone conversations (with the applicant) that occurred around this time, where the issue of the outstanding debt was discussed. He did not recall a meeting on or about 5 October 2017 where an agreement was reached that the applicant, or companies that he proposed, would be able to perform building management, concierge and security from the following week. He said that he had no ability to appoint the building management, concierge and security, that there was nothing the lenders could have done to give the applicant authority, and if the applicant had raised the matter he would have said, “You have to go to the receiver to get any of this approved. We don’t have the authority to grant this to you”.

58. During October 2017, Sarraf Strata received a proposal document, with a covering letter from Mr Abbas as director of Skypoint Strata Services and On Call Strata Services, for the appointment of Skypoint Strata Services as the building manager. A proposal for the provision of building services was also received from the Lefand Group.

59. On 25 October 2017, the applicant’s shares in On Call Strata NSW were transferred to Ms Zena Osman, the applicant’s sister. On 2 November 2017, Sarraf Strata informed the receivers that the applicant had confirmed that he was no longer associated “in any shape, way or form with any of the companies on the agenda” and that the disclaimers are no longer required on the agenda. This was a reference to the disclosure on the draft agenda for the first AGM of any association between the developer and the entity proposing to provide services to the owners corporation, such as building services.

60. On 27 October 2017, the applicant sent an email to Mr Madsen, copied to Mr Bill Yassine, stating that he had just driven past Skypoint Towers and that “you are wasting money with the security guards”. The email requested, “Please hand the job to Skypoint Strata Services and On-Call Strata”.

61. As indicated, on 29 November 2017, the receivers appointed Prestige Strata as the interim strata managers in place of Sarraf Strata until the first AGM of the residential and commercial strata plans for Skypoint Towers.

Events on 11 December 2017

62. On 11 December 2017 at 7:22 am, the applicant sent a letter to the Mr Gammel, copied to Mr Madsen and Mr Yassine, with the subject heading “Maniac urgent matters” (Ex 6), which included:

Dear Todd

I need confirmation in support of quashing my Bail conditions that On Call strata has the building management and Concierge Services (24/7) for Skypoint Towers. I need this to have no Curfew and to elongate having signing in required.

The Curfew and signing in is only in place to ensure “I attend court when needed next. Of Course that will happen.

…

Await your response.

Salim Mehajer

63. Mr Madsen responded to the applicant on at 10:37 am on 11 December 2017, relevantly:

Hi Salim

I have just spoken with Todd and the best person to provide this is Prestige Strata who are the interim strata manager, they issued the notices to call the meeting. Post the meeting on the 19 when On Call Strata is hopefully appointed we could provide it then.

…

Regards

Ben

64. Mr Gammel agreed in cross-examination that the effect of Mr Madsen’s response was to direct the applicant to pursue his request directly with the interim strata manager, Prestige Strata.

65. The applicant also sent a series of text messages to Mr Yassine on 11 December 2017 between 9:59 am and 11:39 am (Exhibit 33). The substance of these messages was that the applicant was “in court” (9:59 am) (he was in the Wollongong Local Court), that he urgently needed Mr Yassine to telephone “Todd” and inform him that if anyone called he should confirm that the building management is On Call Strata, “I’m building manager”, and also “the concierge” (10:02 am-10:11 am).

66. In a text message at 10:44 am, the applicant requested Mr Yassine to obtain a letter “now” from Prestige Strata confirming “that we are currently the appointed strata body” and “[t]he building management, concierge and security is On Call Strata NSW”. Mr Yassine replied at 10:54 am that he was “Working on it now”. The applicant texted Mr Yassine at 11:18 am, “Todd is in the office. They are on the phone with him now”. Mr Yassine replied by text message to the applicant at 11:18 am, “Check your email maree sent its her call”. This was a reference to an email which Mr Yassine had drafted and sent to Ms Lane of Prestige Strata by email at 11:01 am, to which Ms Lane responded in an email to the applicant at 11:12 am with the subject heading, “Prestige appointment of On Call Strata (NSW)”, in the following terms:

Dear Mr Mehajer,

We confirm that Prestige Strata is the newly appointed strata manager for the complex at 36-40 John Street, Lidcombe.

Oncall Strata (NSW) are appointed as the building management/concierge and security. Should you have any other queries, please let me know.

Warm regards

Maree Lane/Managing Director

Prestige Strata

67. Ms Lane was the licensee and a director of Prestige Strata. She gave evidence that she did not attend the Skypoint Towers site before the first AGM on 19 December 2017, that she was in constant communication with Mr Gammel and she believed someone else was performing the building management work at the site but did not know who it was and she thought that Mr Gammel had mentioned that there was an interim building manager. Ms Lane stated that she cut and copied the email she received from Mr Yassine for her own email to the applicant. She said the contents of her email were not true and she did not know what the email was going to be used for. When asked why she sent the email if it was untrue she answered, “A few reasons”, one being intimidation from Mr Yassine, another being she felt obligated because of business relationships she previously had with Mr Yassine and he had called several times pressuring for her to send the email. In cross-examination, Ms Lane confirmed that the reason she wrote this email was because Mr Yassine asked her. She adhered to her evidence that there was intimidation from Mr Yassine.

68. The applicant sent a series of further text messages to Mr Yassine at 11:18-11:19 am:

TODD FUCKED ME

HE SAID NO

BILL COME ON

YOU CAN’T DO THIS TO ME

THEY HAVE HIM ON SPEAKER

SERIOUSLY

Bill you can’t tell me everything is ok

When it isn’t

Seriously HE FUCKKKKED ME

69. Mr Yassine responded to the applicant at 11:20 am, “New strata appoints manager not todd”. Following further text messages from the applicant, Mr Yassine responded at 11:23 am, “It’s not todd’s call, it’s new strata”. Mr Yassine sent a further text message to the applicant at 11:30 am to similar effect.

70. At 11:39 am, the applicant texted Mr Yassine:

I just wasted a full day.

I told barrister to withdrew and adjourn.

They fucked me.

71. At 12:18 pm, the applicant texted Mr Yassine:

Court adjourned until Thursday.

Need letter from receiver

confirming they appointed Sarraf on

_____ then Sarraf appointed us

Then receiver appointed new guys

then new guys appointed us…for

BM, concierge and security

Is that at least possible? (Line in original.)

72. Mr Yassine responded at 9:30 pm on 11 December 2017, “Call me”.

Events on 13 December 2017

73. At 6.30 pm on 13 December 2017, Mr Yassine sent a text message to the applicant:

You need to get a letter from

onecall that you are the[ir] employee

on call for security and concierge.

74. At 9:49 pm, the applicant texted Mr Yassine:

I have court tomorrow regarding curfew

They will ask me for strata docs

And also what’s the update on the meeting tomorrow?

75. At 9:50 pm, Mr Yassine responded to the applicant:

You already have email from maree prestige strata you need a letter from onecall strata that they have employed you to undertake security and concierge.

76. At 9:51 pm, the applicant replied to Mr Yassine:

Sorry on the phone

I fear invade they call her and she says we haven’t started

The applicant agreed in his evidence at trial that the word “invade” is miss-typed and should have been “in case”.

77. At 9:55 pm, Mr Yassine texted the applicant:

Onecall will only accept your employment on the basis you can undertake the tasks that you are required to undertake you can not undertake them whilst you are at home.

The applicant’s 11 December 2017 affidavit

78. The applicant deposed in his 11 December affidavit:

…

4.   On or around 15 September 2017, I was awarded the contract work for Building Management, Security and Concierge for a high-rise development known as Skypoint Towers.

i.   ATTACHED AND MARKED ANNEXURE “A” IS A LETTER FROM “ON CALL STRATA SERVICES”

5.   My roles and responsibilities as a Building Manager include (but are not limited to):

a.   Attending to occupants needs around the clock without notice (on call)

b.   Listing and rectifying defective building works

c.   Supervising the cleanliness of the building and the appointed cleaner

d.   Building monitoring

e.   Retail premises business monitoring

f.   Reporting to the Strata Body on a day to day basis

6.   The building in question is under 3 months old. The first 10 months will be the busiest time for me as occupants begin moving into their new apartments. There are 141 apartments to this building and 16 retail shops.

7.   There are approximately 43 units and 11 retail spaces which are yet to settle and are expected to take place over the next couple of months. This included resales and new rental applications.

8.   In my capacity and role as a Building Manager, I am frequently called in to the building at random hours, including late at night to attend to occupant’s queries and concerns. This is often inside my curfew hours. This can include the following:

a.   Attending to locked out occupants

b.   Attending to fire drills (whether it will be a false alarm or a real emergency, I am still required to attend). The system automatically calls 000 as well as the Building Managers mobile phone.

c.   Attend and assist police, ambulance and Fire brigades in an event of an emergency (for access) For example – break and enters, medical treatment, and or fire/storm/flood call outs.

d.   Attend to emergencies relating to water loss. This happens frequently – a water pump fails and as a result, does not pump up water to all residents in the building.

e.   Attend to black outs, which are often caused by residents themselves, where they place a faulty good into their power point, it turns off the entire unit as the safety switch is triggered. Last week we were called out to the building because a van hit a plumbing pipe in the basement which lead to a small flood and no power to half the building.

f.   Attend to lift breakdowns, including residents stuck in the lift, lift out of services and the lift not stopping at selected floors. At times, I will have to open the fire stairs in such event and place all signage and alert all residents of the hazard.

g.   Disable the lifts – in an event of an emergency I am required to disable the lifts and provide alternative access to residents.

9.   The Building Management was rewarded to myself mainly due to the fact that I was Project Manager who worked on the erection of this building from day one, and I understand the building inside out. This allows me to deal with any issues with a lower working hour allowance. This has allowed me to attend to the concerns swiftly and within the strata budget, to keep the strata levies as low as possible.

10.   I have some employees that work with me in the Building Management Sector, and if I lose my position, I will have to automatically terminate their employment. Three of the five employees are university students all working on a part time basis, as assistance to myself. They are unable to replace my role as they have studies to attend to from time to time, and do not have the capacity to work without my supervision. There is also a cleaner who works full time and another assistant that works after hours.

11.   I have made enquiries as to whether I can appoint someone else whilst I am on bail. However, the conditions of my contractual agreement strictly state that ‘sub- contracting’ is not permitted. Even if I were able to subcontract, it would effectively mean that I would become unemployed. Even though I work as a property developer, this is not a source of income of cash flow. Property Development relates to unpaid work for the duration of the project (12 – 24 months) until occupation Certificate.

12.   Whilst working at these hours and times may seem odd, I have previously been in a similar role from 2014-2016 for another strata company. It involved similar requirements, including late night attendances and inspections.

13.   On top of my duties in paragraph 9, the building has someone at the concierge desk 24/7. From time to time I am there as I have to work during the night to make up for losses whereby I am unable to work in the day time. Concierge attendance is always required and mainly receives calls to complaints, booking of tradesman to rectify building defects, change of appointment times, laundry, food and inhouse services which we organise through our subcontracting body.

14.   Prior to my bail conditions, I was doing some of the hours of concierge, as a lot of the time I am there anyway dealing with other issues. From time to time, I sit in the concierge area and work a few hours as I may be occupied in the day time and unable to work for various reasons.

15.   The building effectively runs like a serviced apartment in that it has an eatery, as well as laundry and cleaning services that work around the clock. As the building manager I am also responsible for managing these services and dealing with any issues that arise at any time.

16.   Since my bail was granted, I have been unable to work closely with the Strata Body and we have received several complaints.

17.   I have been informed that my position will be immediately terminated should I not be able to attend to all my duties, including within the hours of my curfew.

18.   As this is my main source of financial income at this present moment, I am heavily dependent on this role to support myself and my family.

Mobile Telephones

19.   One of my bail conditions is to only use one mobile phone and notify the officer in charge of my number. I understand the officer was notified before my released from custody.

20.   As part of my duties, I usually carry a second mobile phone. This is effectively a 24-hour hotline for the building management. I am happy to provide the officer in charge the mobile phone number of this service if my bail is varied.

Reporting Obligations

21.   I also have other contracts where I do similar work with other buildings. From time to time I will have to travel interstate to attend our other contracts, mainly in Melbourne and Queensland. I do not get much notice when I have to travel interstate, as it is normally something urgent where I have to leave as soon as possible.

22.   On average, I will be required to go interstate at a minimum once a month. This involves going for a period of 3-5 days. My next interstate visit is scheduled for Friday 15 December 2017 where I have been appointed to supervise a team of contractors for the installation of balcony upgrades, window lock and flyscreen systems. This is following a recent accident whereby a toddler fell from an apartment window. I will then be required to return for waterproofing services of a rooftop terrace on 2-5 January 2018.

23.   I am at times required to supervise anywhere between 4-9 staff. Sometimes it is also onsite accommodation and we cannot leave the site for the duration of the job.

24.   About half of the staff I supervise whilst working interstate are either still studying at university or TAFE and/or are completing their apprenticeship course. I am the most senior out of the group and no one in my group has the experience I have to carry out my duties. If I am unable to attend to these jobs, my staff will also be affected.

79. The letter to the applicant from Mr Ramadan as General Manager of On Call Strata Services, referred to in par 4 of the applicant’s affidavit, was in the following terms:

7 December 2017

Salim Mehajer

…

Re: Letter of Engagement

As requested, this letter is to confirm your engagement with us as Building and Concierge Manager.

We confirm the following:

Building and Concierge Management as of 15 September 2017, for a period of three years. Position may be overturned if you breach any of our terms and conditions noted in our product disclosure.

Please do not hesitate to contact me on [mobile number] should you have any queries.

Kind Regards

Alidine (Ali) Ramadan

General Manager

(Emphasis in original.)

Events on and following the 19 December 2017 AGM

80. As indicated, at the first AGM of the residential strata plan on 19 December 2017, Prestige Strata was appointed as strata manager and the Lefand Group was appointed the building manager of the residential properties.

81. On 20 December 2017 at 11:30 pm, Mr Nathan Champley, managing director of the Eminent Group, a cleaning company, emailed the applicant stating that he had been indirectly told that the residential cleaning “is going to Lefand as they have undercut me” and this was a little disappointing to hear.

82. Following this email from Mr Champley, the applicant and Mr Yassine exchanged text messages on 20 December 2017. At 11:49 pm, the applicant texted, “I need to ensure we now get cleaning BM concierge”. Mr Yassine replied at 11:52 pm that he would call “marie”. The applicant responded at 11:54 pm, “That means we need to put a quote together overnight”.

83. At 8:36 am on 21 December 2017, Mr Yassine texted the applicant:

You must talk to todd ben and rouad about new company for security bm and concierge.

84. At 11:10 am on 21 December 2017, Mr Yassine sent an email to Ms Lane stating:

I have not been able to get you on the phone this morning.

At the meeting, please be nominated as the new strata manager.

For concierge, security and building management can you kindly hold off in nominating any party as Salim wants to make a submission for these services by a new party.

85. Ms Lane gave evidence that she did not recall receiving this email and noted that her office was closed from 20 December 2017, as was recorded on her email of 11 December 2017.

86. At 9:01 am on 22 December 2017, an email from [email protected] was sent by iPhone to Mr Yassine and the applicant:

Hi Bill and Salim,

May I confirm the cleaners that are there are currently your cleaners or the receivers appointed them?

Lefand group, not sure if you have hear (sic) of them? However receivers appointed them as onsite manager

We can sort this out in the new year

Cheers,

Maree Lane

87. Ms Lane gave evidence that the “timberlandre” email address was hers, but she could not recall writing this email. She said that no one would have access to her emails and was unsure how anyone else could have written the message and that she would never email anyone regarding the strata using the Timberland Real Estate email. She also said that the wording and vocabulary of the email was not hers and she did not have any association with the applicant after her first initial meeting when he came to her office with Mr Abbas before 11 December 2017.

88. At 9:18 am on 22 December 2017, the applicant emailed Ms Lane at her “timberlandre” address, copied to Mr Yassine:

Can we implement this, Prefer this structure;

I apologize for the informal email, I am currently away from my desk and it has been written through my cell phone.

The Strata Group / Maree

(Head of Group)

⇓

On Call / Skypoint

(Appointed to take on Concierege / Security / Building Management and Cleaning)

⇘ Oncall to (by way of in-house) maintain this with exception to The Cleaning; whereby they appoint The Eminent Group (details below) – but NO appointment to be carried out directly as this will limit our control.

Regards

Salim Mehajer

89. Ms Lane gave evidence that she had not received this email.

90. The next email in this chain was from [email protected] at 9:30 am on 22 December 2017 replying:

Yes, this could work.

…

Maree Lane / Managing Director

TIMBERLAND

91. Ms Lane denied writing this email. When asked if she could explain how the email came to be written from her account, she answered that she was not in the office and if emails were written to her, “[m]y out-of-office would have been on this email chain as well”, and since “out-of-office hasn’t popped up in the email chain” she did not know how it would have happened, but it was not written “from my cell”. She adhered to her evidence that the office was closed from 20 December onwards and that nobody else would have been in the office on this date. She agreed she had access to emails on her mobile phone and said that her signature block would not have been generated as shown in this email as “Maree Lane / Timberland”. She said anybody can cut and copy a signature, that she did not recall writing this email at all, nor the actual contents and anything in this email.

92. On 30 January 2018, the Lefand Group was appointed as building manager for the commercial properties at the first AGM for the commercial strata plan for Skypoint Towers.

Documents tendered on the release application on 7 March 2018

93. As indicated, the applicant tendered a bundle of documents on the release application on 7 March 2018, which included the three documents referred to below.

94. The first was a letter to the applicant dated 14 February 2018 on the letterhead of Skypoint Strata Services and On Call Strata Services, and signed by Mr Ramadan, Acting General Manager, which stated:

Re: Termination of Employment

We write to you in regards to your employment with Oncall Strata at project known as Skypoint Towers at 36-44 John Street Lidcombe NSW 2141. Regretfully we have unanimously voted to terminate your position with us as Building/Strata Manager as of 28th February 2018. This is due to the fact you remain in custody and are unable to fulfil your position with us. It is understood that you have made an application to seek bail, however if bail is granted in your favour, your position will be reinstated and will not be revoked.

In the interim, our position remains and your position will be terminated as of 28th February 2018. Should your application for bail be unsuccessful.

In the event is not granted, we will seek that the Executive Committee to hold an extraordinary meeting with strata board to re-elect a new Building and Strata Manager. No employee from your team can be rolled over to the new Management Board.

…

95. The second was a letter dated 24 February 2018, again on the letterhead of Skypoint Strata Services and On Call Strata Services, and signed by Mr Ali Ramadan, Acting General Manager, which stated:

Re: Termination of employment

Please accept our apology for this inconvenience at an already stressful time.

We write to you in regards to your employment with Oncall Strata at project known as Skypoint Towers at 36-44 John Street Lidcombe NSW 2141. In regards to the previous letter dated on the 14th February 2018, we have been informed that you have a bail application on the 7th of March 2018. As a result, we would like to extend our employment termination letter to reflect the 15^th March. We are giving you the benefit of the doubt and no further extension will be applied. If bail were not granted on the aforementioned date, we would not be in a position to offer you any further leniency. We will seek the Executive Committee to hold an extraordinary meeting with the strata board to re-elect a new Building and Strata Manager. No employee from your team can be rolled over to the new Management Board. However if bail is granted in your favour, your position will be reinstated and will not be revoked.

…

96. The third was the “proposal document” titled “Skypoint Towers Lidcombe” setting out a building management proposal and contained details of the services to be provided to the occupants of Skypoint Towers, including building maintenance onsite service seven days per week, concierge services onsite service seven days per week; Monday to Friday 9AM to 5PM; Saturday and Sunday 10AM to 2PM, security onsite as required and cleaning onsite service seven days per week. The final page contained a quotation for the provision of building management, concierge, security and cleaning amounting to $280,000 + GST. As noted, this document was signed by Mr Ramadan and the applicant and was dated 19 August 2018.

The applicant’s evidence

97. The trial judge referred in detail to the applicant’s evidence (at [280]-[349]) and summarised the defence case (at [350]-[363]). What follows is an outline of the main aspects of the applicant’s evidence.

98. In his evidence in chief, the applicant said that as of 11 December 2017 his understanding that he was the building manager was mainly through face-to-face conversations with Mr Madsen. He did not recall Mr Gammel being present for these conversations but said Mr Madsen told him he had informed Mr Gammel. He said it was “days to weeks” before 11 December 2017 that he had the last discussion with Mr Madsen confirming this; then he said it was “days, to be more precise, days”.

99. When shown Ex 33, the text messages between himself and Mr Yassine on 11 December 2017, the applicant said that he recalled his lawyer, Mr Matthew Ward, being on a conference or speaker phone to Mr Gammel, he did not hear Mr Gammel’s voice and he was told by Mr Ward that Mr Gammel said, “No”. The applicant said that his “Fuck him” text message to Mr Yassine was sent in disbelief, because he had approached Mr Gammel with the expectation that he would say what they had agreed upon. The applicant said that his message referring to his need for a letter from the receiver confirming that they had appointed Sarraf Strata and Sarraf Strata had appointed us, was a reference to his understanding of the agreement “with the receiver via Mr Madsen”.

100. In cross-examination, when taken to his “I am a fighter” 22 August 2017 email to his accountant, the applicant said that he knew there was an obstacle of the receiver’s approval, but ultimately Mr Madsen could retire the receiver at any time because it was a voluntary administration and he had control. The applicant said the approval was given over several phone calls, but then said it was mainly emails. He said that Mr Madsen was not telling the truth when he gave evidence that he was not in a position to do anything like that.

97. The applicant agreed that he knew that the receiver was the only person who had the authority to appoint an interim manager. He said that he knew the receiver was going to retire and he never thought of a time “on contract between the receiver, On Call or myself”. When asked “where’s the contract?” the applicant responded:

… It’s not the most, anywhere near solid, a solid contract, but that’s what I was referred to, and I was referring to Ben’s word on what, what we discussed”.

102. The applicant agreed that when the receiver found out that he and Ms Siaflina had been acting as building managers, they asked them to stop going to the site. The applicant also agreed that there was a period of a few weeks when the Lefand Group were interim managers. He stated that they were then sacked and On Call were retained on an informal basis. He said there was a “short window” where it was clear that the contract had been lost to On Call. He then said that Mr Madsen said Lefand should remain there because he is the face of the building management, but the applicant would still work there and Lefand “was just the face of it to appear”. The applicant said that this conversation with Mr Madsen occurred in September and October 2017 when he was trying to be reappointed again.

103. When asked if he was saying that he never knew about the Lefand Group up until the first AGM, the applicant responded that at one stage, when he was terminated from the building, he knew Lefand was the building manager “on paper”, but they were not acting and people were still contacting the applicant. The applicant said “there was a small window, a couple of weeks, where I couldn’t attend because I was obviously locked out. I negotiated with Ben Madsen, and I was appointed back again”.

104. When taken to the text message the applicant sent to Mr Yassine on 13 December 2017 stating, “I fear [in case] they call her and she says we haven’t started”, the applicant agreed that was what the message said but disagreed that was because he knew that what Ms Lane said in her email was not true.

105. The applicant accepted that there was “no formal proper contract in place between the receiver and myself”. He said, “There were all these agreements” and “so-called brochures”, which the applicant referred to as “contracts”, but he was poorly guided. He accepted there was an issue in September 2017 and he had been notified that the receiver had terminated “On Call and myself” and said that he had met with Mr Gammel and Mr Madsen to rectify the issue and believed that he had.

106. In response to the suggestion that the applicant knew in September 2017 that the Lefand Group had been appointed by the receiver to provide interim building management services, the applicant said that he knew they were appointed at one stage “to be the name on paper”.

107. The applicant gave evidence that he recalled receiving the email from Ms Lane on 22 December 2017 referring to the appointment by the receivers of the Lefand Group as onsite manager. He said that after replying to Ms Lane at 9:18 am setting out his preferred structure and receiving her email response at 9:30 am stating “Yes, this could work”, he believed that On Call’s rights to the building management contract were under control and that everything was still in place.

108. Addressing the letter from Mr Ramadan dated 14 February 2018, the applicant denied the proposition put by defence counsel that the letter is “false” and was just a “contrivance”. The applicant said, “It was what the agreement I had with On-Call, and On-Call had nobody to replace this”.

109. The applicant said that Mr Ramadan and Mr Abbas were interested in having him as an employee but were not interested in other employees doing the role that the applicant was meant to do. He said, “If there was other employees, they’re just not interested in taking on that role”. Addressing the second letter from Mr Ramadan dated 24 February 2018, the applicant said that he requested Mr Abbas to “get an extension”, that he spoke to On Call Strata and “Alli” (being a reference to Mr Ramadan) and obtained a new letter.

110. Addressing the proposal document, the applicant agreed that it was effectively a “promotional-type document”. The applicant said that the document was signed in August 2017, although someone had inadvertently dated the document 19 August 2018. He could not recall seeing a date when he signed it, as his focus was on his signature.

The trial judge’s findings – verdict judgment

111. The trial judge’s detailed findings in Part E of the verdict judgment can be conveniently grouped as follows.

112. Identity of building manager: On Call Strata Services was not, nor was the applicant personally, awarded a contract to provide interim building management services at Skypoint Towers (at [373], [375]). At no stage was the applicant engaged by the receivers in any role related to the building management of Skypoint Towers, and the applicant was aware he had no authority to act as the interim building manager (at [375]).

113. Rejecting the applicant’s evidence, the trial judge found that:

1. the Lefand Group was not simply the “face” of building management of Skypoint Towers: at [376];

2. the applicant did not continue to provide building management services with the authority of the financiers and receivers: at [376];

3. there was no basis for the belief asserted by the applicant that he had authority to provide building management services and was doing so pursuant to an agreement between himself and Mr Madsen, the representative of one of the financiers, SC Lowy: at [378];

4. the fact that Mr Madsen on behalf of the financier and Mr Gammel acting as the receiver did not provide the confirmation sought by the applicant in his 11 December 2017 email under the subject heading “Maniac Urgent Matters” that “On Call Strata has the building management and concierge services (24/7) for Skypoint Towers”, is consistent with their evidence that at no time was the applicant engaged or authorised to carry out building management services at Skypoint Towers: at [392];

5. the evidence of Mr Madsen that he did not authorise or approve the applicant, or any person or entity associated with him, to engage in building management, concierge services or security services in the interim period, was accepted: at [396];

6. there was no basis for the applicant believing that he personally, or On Call Strata Services, had the authority to continue to provide building services to Skypoint Towers, as he had maintained in his evidence: at [380];

7. the applicant’s evidence that until the time of his arrest (on 23 January 2018) he was still acting as the building manager at Skypoint Towers, could not be accepted: at [386]; and

8. the Crown had excluded beyond reasonable doubt the possibility that the applicant believed an agreement was in place from August 2017 for On Call Strata Services to provide building management services and concierge services: at [395].

114. No agreement between Prestige Strata and On Call Strata: During the period when Prestige Strata was acting as interim strata manager (from 29 November 2017 to 19 December 2017):

1. Prestige Strata did not undertake building management services, nor did they have the authority to appoint any person or entity to undertake building management services at Skypoint Towers, nor did Prestige Strata exercise any authority at any time to appoint On Call Strata Services or appoint the applicant personally to undertake building management services at Skypoint Towers: at [388];

2. the Lefand Group acted as interim building managers from 6 September 2017 up until the time of the first AGM of the owners corporation on 19 December 2017 when they were formally appointed by the owners corporation (of the residential strata plan) to carry out building management services at Skypoint Towers (at [386], [389]);

3. there was no agreement between Prestige Strata, the interim strata manager, and On Call Strata Services for the provision of building services by On Call Strata Services at Skypoint Towers, and the applicant knew no such agreement existed: at [400];

4. the text messages between the applicant and Mr Yassine on 11 December 2017 and the days following indicated that both the applicant and Mr Yassine were knowingly working together in preparing material to be put before the Court which was misleading: at [405]; and

5. the draft letter prepared by Mr Yassine (on 11 December 2017), that was “cut and pasted” by Ms Lane into a letter on the Prestige Strata letterhead and which noted that On Call Strata Services had been appointed to the provide “management / concierge and security”, did not represent the true position and was misleading because Prestige Strata did not appoint On Call Strata, nor did they have authority to do so. The applicant knew there was no arrangement in place between Prestige Strata and himself, or On Call Strata Services, for the provision of “building management / concierge and security” and knew the representation and the letter from Prestige Strata that he did so, was false: at [406].

115. Mr Ramadan’s February 2018 letters: The applicant’s evidence was not accepted that the letters authored by Mr Ramadan dated 14 and 24 February 2018 reflected the relationship between the applicant and On Call Strata Services, and that the structure in place was that Mr Ramadan and/or Mr Abbas had the power to terminate his employment contract and the power to surrender an asserted agreement for the provision of building management services by On Call Strata Services to the owners corporation of Skypoint Towers at [422].

116. Further, the applicant’s evidence that he accepted, understood and did not challenge Mr Ramadan’s purported decision to not simply dismiss him as an employee but to approach the owners corporation to withdraw On Call Strata Services from what would otherwise have been a lucrative contract, as simply within Mr Ramadan’s discretion, was implausible: at [423].

117. The “proposal document”: There is nothing in the “proposal document”, relied on by the applicant as the foundation of the contractual relationship between On Call Strata Services and the applicant, that appears to relate to the terms of any engagement of the applicant as an employee of On Call Strata Services to undertake building management services or concierge services “24/7”: at [426].

118. The identification and presentation of the proposal document by the applicant as an employment agreement between the applicant and On Call Strata Services entered into in August 2017 for the personal performance of building services, concierge services and security services were misleading, the production of that document by the applicant to the Court was intentionally misleading, and the applicant, in doing so, knowingly intended to pervert the course of justice: at [428].

119. The applicant’s belief: Rejecting the applicant’s evidence relating to counts 1 and 2, the trial judge found that:

1. the applicant did not hold a belief that in performing building management services at Skypoint Towers he acted under the guidance and approval of Mr Madsen and believed that he did so with the authority of the receivers (at [429]);

2. the applicant, at all times, maintained control of On Call Strata Services (at [430]), he knew that his representation that he held an employment agreement with On Call Strata Services for the provision of building services was false, and also knew when he made a representation that he had no control over the termination of his employment contract, that such representation was false (at [432]); and

3. the possibility that the applicant had a belief that he held the agreement he asserted in his 11 December affidavit and asserted in the two bail applications before the Burwood Local Court on 14 December 2017 and 7 March 2018, was excluded beyond reasonable doubt (at [436]).

120. Rejecting the applicant’s evidence relating to count 3, the trial judge found (at [437]-[438]) that:

1. the two letters authored by Mr Ramadan were false, and the applicant knew were false;

2. the representation that the proposal document was a signed employment agreement between the accused and On Call Strata Services was false, and the accused knew it was not an employment agreement as he had maintained; and

3. in presenting the two letters and the proposal document to the Burwood Local Court on 7 March 2018, the applicant intended to pervert the course of justice.

The trial judge’s conclusions

121. The trial judge’s principal conclusions, leading to the findings that the applicant was guilty on each count, are encapsulated in the summary findings in Part E of the verdict judgment (at [451]-[456]) which are reproduced in full below:

Count 1

[451]   Based on my findings set out in this part, Part E: Determination, I find that the Crown has proved beyond reasonable doubt:

(1)   The accused did an act; that he did swear a false affidavit; that the content of the affidavit was false in so far as it asserted that the accused had been awarded a contract for building management, security and concierge services at Skypoint Towers and that he was unable to perform his obligations under that contract unless the bail conditions previously set were varied.

(2)   That the accused knew the assertion that he was awarded a contract for building management, security and concierge services at Skypoint Towers was false.

(3)   That the act in making the false statement was done with the intent to pervert the course of justice; that when the accused swore the affidavit that the purpose of swearing the affidavit was because he intended that the affidavit be presented to the court in proceedings to determine his application to vary his conditional bail; that at time he made the false statement he intended that the statement mislead the court and intended that the content of the statement obstruct the proper assessment by the court of the matters the court was required to consider in making a determination under the Bail Act.

Count 2

[452]   Based on my findings set out in this part, Part E: Determination, I find that the Crown has proved beyond reasonable doubt:

(1)   The accused in or in connection with judicial proceedings made a false statement in an affidavit of the 11 December 2017 that he had been awarded a contract for building management, security and concierge services at Skypoint Towers. The accused relied on this false statement in his affidavit by presenting the affidavit to the court and using the content of the affidavit in support of his application to vary bail and falsely stating on oath that statement in the affidavit he was awarded the contract was true.

(2)   That the false statement was made on oath before the Burwood Local Court on the 14 December 2017.

(3)   The false statement made by the accused on oath concerned a matter which was material to the proceeding before the Burwood Local Court.

In making a bail decision the court is to consider matters set out in the Bail Act, which includes the need for an accused person to be free for any lawful reason. In the decision to vary the curfew it is material to such a decision whether the accused had a lawful reason to be at liberty which warranted a departure from the terms of the curfew. The content of the affidavit contains a number of matters relating to his performance of the agreement which were impacted by the curfew which the court was required to assess in determining whether there were lawful reasons for the accused to be at liberty during the curfew period. The matters asserted in the affidavit were material to the application to remove the curfew condition.

(4)   That the accused knew the statement he had been awarded a contract for building management, security and concierge services at Skypoint Towers was false.

[453]   As I have noted, the requirement that the falsity of the statement be corroborated can be satisfied firstly, by evidence of two witnesses attesting to the falsity of the accused’s statement; secondly, by one witness with corroboration; thirdly by the “…production of a record which proves itself shown to have known to the accused” (R v Linehan [1921] VLR 582 at 588) and, fourthly by “documentary evidence springing from [the accused] himself”.

[454]   I have referred to the evidence of two witnesses in particular, being Mr Madsen and Mr Gammel and the evidence in the Crown case that corroborates their evidence relating to the question whether the accused had been “…awarded the contract work” for building management, security and concierge services at Skypoint Towers, as the accused stated in his affidavit. I have made findings concerning the reliability of the evidence of these two witnesses and made findings consistent with their evidence that there was no agreement in place where On Call Strata Services was to provide building management services at Skypoint Towers. I have made findings accepting their evidence that there was no such agreement. In my view, the falsity of the accused’s statement that he was “awarded the contract” is proved by the evidence of these two witnesses. I find further that other evidence in the trial provides substantial corroboration to the evidence these two witnesses gave. I have extracted and referred to documents and email correspondence particularly in August and September 2017, which supports the evidence of these two witnesses. There is also a body of other evidence which supports the evidence of these two witnesses, including that from early September the Lefand Group had been appointed the building manager and had carried out those services on site at Skypoint Towers and that the provision of those services by them continued beyond the date the accused made the application for bail on the 7 March 2018. There is no significant evidence the accused was engaged in the provision of building management services from early October 2017. I find the falsity of the accused’s statement is corroborated by two witnesses and that their evidence is corroborated by other evidence.

Count 3

[455]   Based on my findings set out in this part, Part E: Determination, I find that the Crown has proved beyond reasonable doubt:

(1)   The accused did an act in connection with judicial proceedings by providing documents, being two letters authored by Mr Ramadan and a proposal document, to the Burwood Local Court the content of which was false and known to be false. The accused relied on the content of these false documents in support of his application for bail and falsely represented the content of the documents to be true; that by doing so the accused did provide false information to the court as to the circumstances of his employment which included the circumstances of the termination of his employment knowing that information was false.

(2)   That the accused knew the content of the letters was false and falsely represented that the proposal document was an employment agreement and that at the time of making the representation he knew the representations were false.

(3)   That the act in providing the documents to the Burwood Local Court in support of his application for bail was done with the intent to pervert the course of justice. I find that when the accused provided the documents to the court he intended the content of the documents mislead the court and intended that the content of the documents to obstruct the proper assessment by the court of the matters the court was required to consider in making a determination under the Bail Act.

[456]   I find the Crown has proved beyond reasonable doubt each of the counts on the indictment. (Emphasis in original)

Conviction appeal

Grounds of appeal against conviction

122. The following amended grounds were relied upon (adopting the numbering in the applicant’s written submissions):

1.   Intervention by learned trial judge had caused a miscarriage of justice.

2.   The learned trial judge erred in following his general directions of law in convicting the applicant on counts 1, 2 and 3.

273. Second, from at least 12 September 2017, the applicant was aware that another building manager had been appointed for the Skypoint Towers development on an interim basis until the first AGM, and it can be inferred that from about mid-September 2017 the applicant knew that this was the Lefand Group.

274. Third, the applicant knew from email exchanges with the receivers in September 2017 that he and his entities including On Call Strata Services were not authorised by the receivers to provide concierge or building management services for the Skypoint Towers development, either with or without charge, and that remained the applicant’s belief at the time of his 11 December 2017 affidavit, his statements on oath in the Local Court on 14 December 2017 and the information provided to the Local Court on 7 March 2018. The applicant also knew that Mr Madsen had not appointed the applicant or any of his entities as the building manager of Skypoint Towers.

275. Fourth, at the time of providing information to the Local Court on 7 March 2018, the applicant knew that his entity, Skypoint Strata Services, had not been appointed the building manager of Skypoint Towers at the first AGM of the residential strata plan held on 19 December 2017 or at the adjourned first AGM of the commercial strata plan held on 30 January 2018. The applicant also knew that the February 2018 letters authored by Mr Ramadan and the proposal document provided to the Local Court on 7 March 2017 were false in describing the employment relationship between the applicant and On Call Strata Services.

276. Having reviewed the totality of the evidence relating to the applicant’s argument, we are satisfied that the evidence established beyond reasonable doubt the elements of each offence the subject of counts 1, 2 and 3.

Conclusion

279. Leave to appeal against conviction is granted in relation to grounds 1, 2, 4 and 5, however, the application in ground 3 to admit fresh or new evidence on appeal is refused. The appeal against conviction is dismissed.

THE SENTENCE APPEAL

280. As indicated, Judge Zahra imposed an aggregate sentence of imprisonment of 3 years and 6 months, with a non-parole period of 2 years and 3 months.

281. In compliance with the requirement of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”), his Honour indicated the sentence he would have imposed for each offence were it not for the imposition of an aggregate sentence. The offences, their maximum penalties, and their indicative sentences were as follows:

Count	Offence	Act and Section	Maximum Penalty	Indicative Sentence
1	Between 10 December 2017 and 15 December 2017, in Burwood and elsewhere in the State of New South Wales, Salim Mehajer did an act, namely, the swearing and use of a false affidavit with intent, thereby, to pervert the course of justice.	s 319 of the Crimes Act 1900 (NSW) (“Crimes Act”)	14 years’ imprisonment	2 years’ imprisonment
2	On 14 December 2017, at Burwood in the State of New South Wales, Salim Mehajer, in connection with an application to vary bail conditions, made a false statement on oath, knowing the statement to be false, concerning a matter material to the proceedings, namely, whether he had employment which was impacted by bail conditions which had been earlier imposed.	s 327(1) of the Crimes Act	10 years’ imprisonment	1 year imprisonment
3	On 7 March 2018, at Burwood in the State of New South Wales, Salim Mehajer did an act, namely, provide false information as to the circumstances of his employment, with intent, thereby, to pervert the course of justice.	s 319 of the Crimes Act	14 years’ imprisonment	2 years’ and 6 months’ imprisonment

Grounds of appeal against sentence

282. The applicant relies on five grounds of appeal, which are set out in the applicant’s handwritten submissions on the sentence appeal as follows:

Ground 1 — The sentence imposed upon the Appellant is manifestly excessive;

Ground 2 — The learned sentencing judge erred in his assessment that specific deterrence was required to be “strongly engaged”;

Ground 3 — The learned sentencing judge erred in properly applying the appropriate aggregate sentence and as to consideration [of] whether the aggregate was just and appropriate;

Ground 4 — The learned sentencing judge failed to give adequate weight to the onerous conditions that the Appellant has been subjected to - i.e., solitary confinement and Covid-19; and

Ground 5 — The learned sentencing judge erred in so far as his Honour limited his consider[ation] of the psychological condition of the Appellant to the determination of the sentence period and did not adequately consider those factors with respect to the fixing of an appropriate aggreg[ate] non-parole period.

283. Given that at least Ground 4 is more appropriately considered as particulars of the manifest excess ground (Ground 1), rather than as an individual error, it is necessary to deal with Grounds 2 – 5 before determining Ground 1.

Facts of the Offending

284. The facts giving rise to the offences are set out in the sentencing judge’s Remarks on Sentence (“ROS”), dated 23 April 2021. A comprehensive analysis of the evidence adduced at trial, and upon which his Honour made findings, is provided in his Honour’s verdict judgment, delivered on 2 October 2020.

The Applicant’s Case on Sentence

285. In sentencing proceedings, the applicant’s case included two letters written by the applicant and addressed to the Court, dated 12 February 2021 and 31 March 2021 respectively (Exhibit 2 and Exhibit 8); a psychological report by Dr Antony Henderson, dated 9 September 2020 (Exhibit 4); and a psychological report by Ms Ann Marie De Santa Brigida, dated 17 November 2020 (Exhibit 6).

286. In addition, the affidavit of Mohamed Mehajer (the applicant’s father), dated 30 March 2021, and the affidavit of Zenah Osman (the applicant’s sister), dated 30 March 2021, were read.

The Remarks on Sentence

287. The sentencing judge identified the objective seriousness of each offence as within the middle of the range. In making that determination, his Honour found that the applicant engaged in significant planning and preparation of documentation. The applicant contemplated the matters the Court was required to consider under the Bail Act and tailored the content of his affidavit and false documentation to address the various bail considerations.

288. His Honour acknowledged that offences of perverting the course of justice are of substantial gravity, and that such offending strikes at the very heart of the justice system and must be severely punished whenever detected: Marinellis v R [2006] NSWCCA 307 at [10]; PO v R [2020] NSWCCA 129 at [40].

289. His Honour noted:

[T]he fact that an attempt to pervert the course of justice did not succeed was doomed to fail is a far less significant than in the case of sentencing for an attempt to commit some other substantive offence. It is the tendency of the conduct which is decisive and it is irrelevant whether or not the conduct brings about the miscarriage of justice.

290. His Honour did, however, have regard to the case of R v Finnie and Finnie [2007] NSWCCA 38, where it was noted that an offence intended to influence the grant of bail is not generally as serious as an offence intended to pervert a trial or sentencing proceedings.

291. In light of the findings made, his Honour concluded that the sentence imposed must contain a strong measure of both specific and general deterrence.

292. In relation to the applicant’s mental state at the time of the offending conduct, his Honour was not persuaded that the applicant’s underlying mental health condition was causally connected to his deliberate conduct in misleading the court in the course of his applications for bail. His Honour was not persuaded that any underlying condition operated to otherwise reduce the objective gravity of the offending.

293. The applicant committed Count 1 and Count 2 whilst on bail for an offence of assault occasioning actual bodily harm and an offence of destroy/damage property. He committed Count 3 whilst the subject of two good behaviour bonds imposed under s 9 of the CSPA. The sentencing judge clearly stated that the fact the applicant was subject to conditional liberty, does not elevate the objective seriousness of the offending. Instead, it demonstrated a continuing disobedience and lack of insight into his obligations to the Court, a matter to be reflected in the sentence imposed.

294. His Honour referred to the applicant’s prior criminal record, but found that the applicant’s antecedents did not operate to aggravate the offending. The applicant’s plea of not guilty and the length and complexity of the trial did not operate to increase the sentence nor the objective seriousness of the conduct. His Honour was unable to conclude, on the balance of probabilities, that the applicant is remorseful or has any insight into his offending.

295. Although unable to make any meaningful prediction in relation to the applicant’s prospects of rehabilitation, his Honour accepted that the applicant required long-term mental health treatment, including inpatient care. Such treatment would significantly enhance his prospects of rehabilitation and mitigate any risk of future offending. It was upon this basis that his Honour made a finding of special circumstances.

296. The applicant’s underlying mental health condition and need for treatment was also taken into account in making a finding of significant hardship in custody. The sentencing judge also considered the conditions in which the applicant served his pre-sentence custody, including the absence of adequate psychiatric care and the restrictive regime due to the COVID-19 pandemic.

297. In finding significant hardship in custody, his Honour took into account that the applicant had been placed in protective custody due to his “high media profile” which may result in continuing exposure to the risk of “custodial retribution”.

298. Affidavits sworn by members of the applicant’s family were relied upon in the sentencing proceedings. His Honour took into account the hardship to the applicant’s family as part of the general mix of subjective circumstances.

Ground 2 — The sentencing judge erred in his assessment that specific deterrence was required to be strongly engaged

299. The applicant submits the need for specific deterrence is usually regarded as greater where the offence is more serious. The applicant also submits that whilst there are “past minor offences” on his criminal record, the sentencing judge did not have any material relating to the facts of those offences and, therefore, could not have formed the view that the totality of the applicant’s convictions required “a strong measure of specific deterrence”.

300. The Crown submits that there was no error and his Honour’s finding that the sentence imposed “required a strong measure of specific deterrence” was based upon “the nature of the crimes committed and the demonstrated attitude of the offender in carrying them out rather than the applicant’s antecedents.”

Consideration

301. In his ROS, the sentencing judge stated that the “sentence imposed must contain a strong measure of specific deterrence.” Contrary to the applicant’s submissions, this finding was not made on the basis of the applicant’s criminal record. Instead, the sentencing judge found that the applicant placed his own interests over the community’s interest in the preservation of the integrity and authority of the courts.

302. It was the applicant’s conduct in making misleading statements to the Court and in relying on false documents that warranted a strong measure of specific deterrence. Given the nature of the offending, including planning and preparation of documentation to address matters that the applicant knew were relevant to the Court’s consideration of his bail applications, it was open to the sentencing judge to find that at the time of offending the applicant had attained a high level of knowledge of the principles applicable to bail applications.

303. Furthermore, there is clear authority for the proposition that offences of perverting the course of justice strike at the very heart of the justice system and warrant sentences that reflect a strong element of specific and general deterrence.

304. This proposed ground is not made out.

Ground 3 — The sentencing judge erred in properly applying the appropriate aggregate sentence and as to consideration of whether the aggregate was just and appropriate

305. The applicant submits that the sentencing judge did not correctly consider the similarity of the offences and the period within which the offences took place. The applicant contends that this alleged failure resulted in his “double punishment”. The applicant submits that the sentence is “crushing”, and a greater measure of concurrency is warranted in the circumstances.

306. In R v Van Ryn [2016] NSWCCA 1, R A Hulme J helpfully summarised some of the authorities going to the issue of totality in sentencing:

[228]   Street CJ described the principle of totality in sentencing in R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

[229]   In R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46], the Court (McClellan CJ at CL, Hulme and Hislop JJ) emphasised the need to maintain public confidence in the administration of justice when sentencing for multiple offences by endorsing the remarks of Sully J in the two-judge bench decision in R v Wheeler [2000] NSWCCA 34 at [36]-[37]:

... (There) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.

It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour."

[230]   In R v XX (2009) 195 A Crim R 38 at [52], Hall J set out a number of propositions derived from the case law concerning the discretionary exercise of ordering sentences to be served concurrently or cumulatively in accordance with the principle of totality. They included reference to the following passage in the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 at [27]:

… [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." (Emphasis added.)

Consideration

307. The sentencing judge considered the issues of accumulation and totality at [106] - [109] of his ROS. His Honour accepted that “all three counts significantly overlapped” but did not accept that they did so to a “considerable extent”. The principle of totality was considered with his Honour recognising that the sentence imposed must reflect the total criminality.

308. Although the criminality, broadly speaking, was directed to an attempt by the applicant to influence the result of two bail proceedings by knowingly providing false information, the offending constituted discrete criminal acts perpetrated over a number of months. In those circumstances, it was entirely open to the sentencing judge to impose an aggregate sentence that reflected a measure of accumulation. The total accumulation was a period of one year. The degree of accumulation is not excessive, having regard to the nature and extent of the deliberate acts engaged in over many months.

309. This proposed ground fails.

Ground 4 —The sentencing judge failed to give adequate weight to the onerous conditions that the applicant has been subjected to, namely, solitary confinement and COVID-19

310. The applicant submits that the sentencing judge failed to give adequate weight to the onerous conditions in custody by virtue of restrictions brought about by the COVID-19 pandemic and “solitary confinement”.

311. The Crown notes that the applicant’s complaints are not of any specific error, but of the weight that his Honour gave to these considerations. Accordingly, the Crown submits that these complaints are more appropriately considered as particulars of the manifest excess ground (Ground 1), as opposed to being considered as amounting to an individual error.

Consideration

312. The applicant’s custodial records contained an entry, dated 20 December 2020, which notes that the applicant had been classified as “PRNA [Protection Non-Association], high media profile, Hx self-harm, bipolar, depression and anxiety” (Exhibit A, Tab 4, p 13). The applicant was placed in protective custody, at least in part due to his “high media profile”. It is important to clarify that the material does not establish that the applicant was in “solitary confinement” as a punitive measure.

313. His status as a PRNA prisoner meant that he was subject to more restrictive conditions in custody. Further, the increased restrictions in custody caused by the COVID-19 pandemic meant greater isolation and increased restriction of the applicant’s movements and contact with other prisoners.

314. The restrictive conditions, which resulted in “significant deprivations”, were taken into account by the sentencing judge. Acknowledging the applicant’s hardship in custody, his Honour had regard to two letters prepared by the applicant which were tendered in his sentencing proceedings (Exhibit 2 and Exhibit 8). His Honour also took into account, and was alive to, the opinions of psychologists that it was unlikely that the applicant’s mental health condition would be stabilised in custody. Indeed, given the opinions expressed by the experts, and in particular Ms Brigida, his Honour made a finding of special circumstances.

312. It is apparent that his Honour took into account the conditions in which the applicant served his presentence custody, the absence of adequate psychiatric care in custody, the restrictive regime due to the COVID-19 pandemic and the applicant’s custodial status as part of “the mix of subjective circumstances”.

313. The applicant has not demonstrated that the sentencing judge failed to give adequate weight to the restrictions brought about by the COVID-19 pandemic and his status as a PRNA prisoner.

314. This proposed ground has not been made out.

Ground 5 — The sentencing judge erred in so far as his Honour limited his consideration of the psychological condition of the applicant to the determination of the sentence period and did not adequately consider those factors with respect to the fixing of an appropriate aggregate non-parole period

318. The applicant relies on the contents of Dr Henderson’s expert report (Exhibit 4) to support the contention that the sentencing judge erred in limiting his consideration of the “psychological condition” of the applicant to the determination of the sentence period, and did not adequately consider those factors with respect to setting the non-parole period.

319. The Crown submits there was “no substance to the ground as pleaded because his Honour specifically made a finding of special circumstances based upon the need for the applicant to engage in treatment for his underlying mental health conditions.” His Honour’s findings in relation to Dr Henderson’s expert evidence was open to him and was explained in detailed reasons.

Consideration

320. An application to re-open the defence case to hear further evidence was made on 16 September 2020 and was granted. The defence case proceeded to adduce evidence from Dr Henderson as to the applicant’s mental health.

321. That report set out the history of the applicant’s bipolar disorder, which although diagnosed after the offending behaviour, likely existed at the material time. The report stated that “around the material time”, the applicant was experiencing “grandiosity, feeling invincible, increased energy, racing throughs and impulsive behaviour”.

322. In his ROS, the sentencing judge did not accept the opinion of Dr Henderson that the applicant was “acting impulsively, being disorganised and lacking insight”. His Honour went on to state at [60]:

In my view, the offender engaged in many deliberate acts over many months. His manoeuvrings to obtain a strata and building management agreement were calculated and persistent. He engaged in continuing correspondence with financiers and receivers. He restructured companies in such a way that he presented himself at arms-length but was able to maintain control … Against the background of the conduct of the offender and the many steps he had undertaken in the months prior to and at the time he swore the affidavit and made applications for bail to which I have referred in my trial by Judge alone judgment I cannot accept the opinion of Dr Henderson that, because of underlying mental health conditions, that the offender was “disorganised” and “inattentive to detail” or that the offender was “probably not aware that he was making exaggerated or misleading statements or that he was aware of wrongdoing at the material time.

323. His Honour accepted the evidence that the applicant had a history of bipolar disorder; however, his Honour was not of the view that the condition “significantly impacted upon the offender’s cognitive or moral culpability for his offending.” There was no “causative nexus” between the mental health condition and the offending.

324. It was entirely open to the sentencing judge to make this finding in light of the deliberate acts perpetrated by the applicant, of which his Honour was satisfied beyond reasonable doubt. His Honour was satisfied that the applicant used corporate structures that he had designed to retain control of strata and building management of the Skypoint Towers development. These structures were previously in place to “shroud the [applicant’s] control of these corporate entities and to create the impression that he was at arms-length from any contractual arrangement entered into by the corporate entities relating to the Skypoint Towers development”.

325. Having established these entities for another purpose, the applicant misled the Court as to his position within those entities, and misled the Court about his obligation to perform strata and building management services at the Skypoint Towers development. In perpetrating this deception, the applicant prepared false documentation that he knew the Court was required to consider under the Bail Act. The applicant swore an affidavit falsely asserting his engagement in strata and building management, and the false documents would have taken some time to generate and collate.

326. The extent to which the applicant placed false material before the Court, and either gave evidence continuing to mislead the Court, or made submissions perpetrating the falsehoods contained in the documents he had presented, was conduct which the sentencing judge was entitled to take into account in assessing the cogency of the opinion expressed by Dr Henderson as to the applicant’s likely state of mind at about the time of the offences.

327. This is not a case where his Honour ignored the expert evidence relating to the applicant’s mental health conditions. His Honour referred to the contents of the expert reports of Ms Brigida (Exhibit 6) and Dr Henderson (Exhibit 4) and appears to have accepted their diagnoses of the applicant. Importantly, the sentencing judge accepted that the applicant’s prospects of rehabilitation would be significantly enhanced should the applicant undertake long-term mental health treatment, including inpatient care.

328. Although the sentencing judge was not persuaded of a causal nexus between the applicant’s mental health conditions and the commission of the offences, his Honour did take into account the expert material and, based on that material, made a finding of special circumstances.

329. This proposed ground fails.

Ground 1 – The sentence imposed upon the applicant is manifestly excessive

330. The applicant submits that the substance of Ground 1 is strengthened when Grounds 2, 3, 4 and 5 are considered. We have considered those individually above and determined that each Ground 2-5 has failed.

331. The applicant submits “there must have been some misapplication of principle or an error, as the sentence imposed is far outside the available sentencing range in this case.”

332. Further, the applicant submits that although the offending was serious, “there were factors present in this case which should have led his Honour to impose a lesser sentence.” Those factors are as follows:

1. The learned sentencing judge erred in attributing a higher level of responsibility to the applicant because the applicant had properly understood the Bail Act. The applicant submits this is an error because he is not a lawyer;

2. The full offending was not of a long duration and extended from December 2017 to March 2018;

3. No damage to the system actually resulted because bail was not varied or granted. Therefore, a perversion of the course of justice was averted; and

4. That there was no planning involved as “assumed by the learned trial judge”.

333. The Crown submits that the findings made by the sentencing judge were open on the evidence.

Consideration

334. When dealing with an appeal on sentence, the question is not whether the court hearing the appeal would have exercised the sentencing discretion differently: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29.

335. There is no single correct sentence, as sentencing is a discretionary exercise (Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [24]). The weight to be attributed to the evidence and various sentencing matters is a matter for the sentencing judge (Bugmy at [24]).

336. To establish that a sentence is manifestly excessive, it is necessary to show that it is “unreasonable or plainly unjust” (Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]).

337. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], R A Hulme J helpfully summarised the principles that relate to an appeal where it is contended that the sentence imposed was manifestly excessive:

When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

It is not to the point that this Court might have exercised the sentencing discretion differently.

There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

It is for the applicant to establish that the sentence was unreasonable or plainly unjust.

338. Appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases” (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]). Rather, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”: Wong at [58].

339. His Honour’s finding that the applicant had acquainted himself with and understood the Bail Act was open on the evidence. The documents prepared in support of the two bail applications were clearly directed to persuading the Court that the applicant’s employment required either a grant of bail or a variation of bail conditions.

340. Under the heading: “Assessment of Objective Seriousness of the Offending”, his Honour referred to R v Finnie and Finnie, noting that an offence intended to influence the grant of bail is not generally as serious as an intended perversion of trial or sentencing proceedings. As his Honour rightly observed, offences of perverting the course of justice are of substantial gravity because they strike at the very heart of the justice system. Sentences for such offences must reflect a strong element of specific and general deterrence.

341. The applicant’s crimes involved planning, preparation and organisation. His Honour’s finding that each offence fell within the middle of the range of objective seriousness was well open to him. Having regard to his Honour’s findings and the applicant’s subjective case, we are unable to conclude that the sentence imposed reflects some misapplication of principle, or that it was so far outside the range of sentence that there must have been error: JJ v R [2020] NSWCCA 165 at [14].

342. This proposed ground fails.

Application for leave to rely upon further medical evidence on appeal

343. After the Court reserved judgment on the appeal, the applicant made an application by letter dated 25 October 2022 to rely upon pars [3]-[6] of his unsworn affidavit dated 24 October 2022, which in turn sought to rely upon a report of Dr John Roberts, a psychiatrist, prepared in about February 2022, in support of a civil damages claim brought by the applicant in other proceedings. The report itself was not put before the Court on the application for leave to reopen as apparently it is not in the applicant’s possession.

344. The report would only possibly become relevant as evidence of events occurring since the sentence hearing, if the Court found error by the sentencing judge and proceeded to resentence: Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 at [124]. As the sentence appeal has failed and the issue of resentence does not arise, it is not necessary to address the application for leave to rely upon this report. Nor is it necessary to address the difficulty arising from the applicant’s inability to tender the report he seeks to rely upon, or the applicant’s related application for a suppression order in respect of the contents of the report.

Conclusion on sentence appeal

345. Although leave to appeal against sentence is granted, the appeal is dismissed.

RELEASE APPLICATION

346. After the Court reserved judgment on the appeal, the applicant filed a release application on 5 August 2022 pursuant to s 49(1) of the Bail Act 2013 (NSW). The applicant has standing to make a release application as “a person accused of an offence” which expression is defined in s 4(1) of the Bail Act as including “(c) a person in respect of whom proceedings on an appeal against conviction or sentence for the offence are pending”.

347. An earlier application for bail pending appeal was dismissed by this Court on 16 February 2022: Mehajer v Director of Public Prosecutions (NSW) [2022] NSWCCA 23. A further application for bail pending appeal was dismissed by this Court on 22 June 2022: Mehajer v R [2022] NSWCCA 135.

348. With respect to an application for bail pending appeal, s 22(1) of the Bail Act applies so that the applicant must demonstrate that special or exceptional circumstances exist that justify the granting of bail, otherwise the application must be refused.

349. In addition, s 74(1) of the Bail Act contains a limitation on the power of a court to hear another release application, unless there are “grounds for a further release application”. The phrase “grounds for a further release application” is, relevantly, defined in s 74(3) of the Bail Act in these terms:

(3)   For the purposes of this section, the grounds for a further release application are—

(a)   the person was not legally represented when the previous application was dealt with and the person now has legal representation, or

(b)   material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or

(c)   circumstances relevant to the grant of bail have changed since the previous application was made, or

...

Submissions

350. The applicant’s written submissions dated 5 August 2022, only addressed the issue of the special or exceptional circumstances. The applicant relied upon the following matters in support of his release application: (a) he has already served approximately 22 months of his non-parole period of 27 months; (b) it is possible that by the time the decision on the appeal is handed down, the applicant would have served most, if not all, of his non-parole period; (c) even if the appeal against conviction is not successful, the appeal against sentence has reasonable prospects of success; and (d) the applicant requires being at liberty so as to secure legal representation for other matters for which he is currently on bail and which are listed for hearing.

351. As the applicants’ written submissions did not address issue raised by s 74(1) of the Bail Act limiting the Court’s power to hear another release application, the applicant was afforded an opportunity to provide further written submissions directed to that issue. The applicant did not seek an oral hearing and the parties were informed that the Court would deal with the application on the papers.

352. In his further submissions, the applicant relied upon s 74(3)(c) of the Bail Act. He submits that the circumstances which have changed since his previous release application are:

1. the appeal has now been heard and judgment is reserved, and it is highly likely that the applicant will be successful at least on his sentence appeal; and

2. the applicant is currently self-represented, his fresh application to Legal Aid was refused with respect to other pending charges and he would be able to obtain funding for a psychiatrist report capable of satisfying Legal Aid that aid should be granted in a shorter timeframe, if at liberty.

353. The applicant also referred to other “mitigating factors” supporting his application, contending that he would have greater ability to address his debt or annul his bankruptcy, if at liberty.

354. In addition, by letter dated 26 October 2022, the applicant sought leave to rely upon the report of Dr John Roberts, a psychiatrist, prepared in about February 2022, in support of his release application. As indicated, the report itself was not put before the Court as it is apparently not presently in the applicant’s possession.

355. The Crown opposed the release application on the basis that the applicant has not demonstrated there are grounds for a further release application, nor are there special or exceptional circumstances.

Determination

356. None of the matters referred to in the applicant’s submissions amount to a relevant change in circumstances since his previous release application which was dismissed by this Court on 22 June 2022.

357. First, that the applicant is currently unrepresented in other matters, is seeking legal aid for those other matters and is also seeking to annul his bankruptcy, do not amount to a change in circumstances. All of those circumstances existed at the time of his previous release application.

358. Second, that the applicant has to wait for a decision in his appeal is not a relevant change in circumstances. Nor is the applicant’s opinion as to the prospects of success of his appeal a change in relevant circumstances.

359. Third, the applicant’s asserted psychological condition to which the report of Dr Roberts is said to be relevant, is not a relevant change in circumstances, as the issue of the applicant’s psychological condition was a matter agitated on his previous release application before this Court in June 2022, which was dismissed (Mehajer v R [2022] NSWCCA 135 at [8]) and this report was available at the time of the previous release application. It is no answer for the applicant to say as he does in his unsworn affidavit, which can be treated as a submission, that he did not put this report before the Court on his previous release application “because I had genuine fears, that I will not be believed”.

360. It follows that the Court must refuse to hear another release application: Bail Act, s 74(1). Accordingly, the release application will be dismissed.

361. Even if, contrary to our view, grounds for a further release application had been established, we are not satisfied that any of the matters identified by the applicant amounts to special or exceptional circumstances to justify the grant of bail. Moreover, given the disposition of the appeal we note that the Court’s power to grant appeal bail under s 22(1)(a) of the Bail Act no longer apples.

Orders

362. The Court makes the following orders:

1. Leave to appeal against conviction granted on grounds 1, 2, 4 and 5.

2. The application to admit fresh or new evidence on appeal is refused.

3. Appeal against conviction dismissed.

4. Leave to appeal against sentence granted.

5. Appeal against sentence dismissed.

6. Release application filed 5 August 2022 dismissed.

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Decision last updated: 18 November 2022