R v Fatima Mehajer - [2018] NSWLC 12

Local Court

New South Wales

Medium Neutral Citation: R v Fatima Mehajer [2018] NSWLC 12
Hearing dates: 15 & 26 June, 12 December 2017; 11 April, 14 & 22 June 2018
Decision date: 22 June 2018
Jurisdiction: Criminal
Before: Magistrate B Schurr
Decision:
On each charge – conviction, sentence of 2 months imprisonment to date from 22 June 2018, suspended immediately upon entering into recognizance for 9 months under section 20(1)(b) of the Crimes Act 1914 (Cth)

Catchwords: CRIMINAL – Sentence – Commonwealth offences - providing false and misleading information to a Commonwealth agency –above mid-range of seriousness - reliability of electoral roll affected - damage flow to democratic electoral system - guilty plea - utilitarian value - sincere remorse and contrition - reduced need for personal deterrence - custodial sentence appropriate - probable effect of sentence on family - exceptional hardship made out - health conditions of young children - ordered to enter in to recognizance
Legislation Cited: Crimes Act 1914 (Cth) s 16A
Criminal Code (Cth) s 137.1(1)
Cases Cited: Naizmand v R [2018] NSWCCA 25
R v Di Simoni (1981) 147 CLR 383
R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222
The Queen v Ehrmann [2001] QCA 50
The Queen v Sevastopoulos (unreported, Supreme Court of Victoria, Crockett J, 8 October 1985)
Xiao v R [2018] NSWCCA 4
Category: Sentence
Parties: Commonwealth Director of Public Prosecutions (prosecutor)
Fatima Mehajer (defendant)
File Number(s): 2015/00382505
Publication restriction: Nil

Judgment

Introduction

Fatima Mehajer pleaded guilty to sending applications to amend electoral addresses in the names of 77 people, including her own, to the Australian Electoral Commission on 30 July 2012 knowing that the address information contained in the applications was false. She has pleaded guilty to 77charges under section 137.1(1) of the Criminal Code (Cth).
Ms Mehajer committed these offences in a joint criminal enterprise with her brother Salim Mehajer. They then both stood as candidates in the September 2012 Auburn Council elections. Ms Mehajer was unsuccessful, but her brother was elected to the Auburn Council and was Deputy Mayor from October 2012 until January 2016. Mr Mehajer pleaded not guilty and has been convicted of more serious charges arising out of the same applications under section 145.1(1) of the Criminal Code.
The delay in proceeding to sentence has been caused by delays in finalising the case involving Salim Mehajer.

Charge and plea

Fatima Mehajer entered a plea of guilty to 77 charges under section 137.1(1) of the Criminal Code on 15 June 2017 on the first day of what was to be a joint hearing with her brother Salim Mehajer. On that same day 51 charges under section 145.1(1) of the Criminal Code were withdrawn and dismissed. The maximum penalty for the withdrawn charges is ten years. The maximum penalty for the section 137.1(1) charges is 12 months. All the charges relate to events on 30 July 2012.

Fact finding

Ms Mehajer did not give evidence in the sentencing proceedings. I take into consideration her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fatima Mehajer

Details

AGLC: R v Fatima Mehajer [2018] NSWLC 12
Case: [2018] NSWLC 12
Decision Date: 22 June 2018

CaseChat Overview and Summary

In the matter of R v Fatima Mehajer, the respondent, Fatima Mehajer, pleaded guilty to multiple counts of providing false and misleading information to a Commonwealth agency, impacting the integrity of the electoral roll. The court was required to determine the appropriate sentence for these offences, which were considered to be above the mid-range of seriousness due to the potential impact on the democratic electoral system. The court had to weigh various factors including the severity of the offence, the respondent's guilty plea, her sincere remorse and contrition, and the potential effect of a custodial sentence on her family, particularly her young children with health conditions.

The court acknowledged that a custodial sentence was generally appropriate for such offences, however, it considered the respondent's guilty plea and the demonstrated remorse, which reduced the need for personal deterrence. The court also took into account the probable effect of imprisonment on the respondent's family, particularly the exceptional hardship that would be caused by her incarceration. After balancing all these factors, the court determined that a suspended sentence was appropriate to avoid the significant family disruption that would result from imprisonment. Consequently, the court ordered that the respondent enter into a recognizance to be of good behaviour for a period of nine months and to pay a fine. The sentence was deemed to have commenced on 22 June 2018, but the imprisonment was suspended immediately upon the respondent entering into the recognizance.

Orders

Orders of the court

On each charge – conviction, sentence of 2 months imprisonment to date from 22 June 2018, suspended immediately upon entering into recognizance for 9 months under section 20(1)(b) of the Crimes Act 1914 (Cth)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Fatima Mehajer [2018] NSWLC 12
Hearing dates:	15 & 26 June, 12 December 2017; 11 April, 14 & 22 June 2018
Decision date:	22 June 2018
Jurisdiction:	Criminal
Before:	Magistrate B Schurr
Decision:	On each charge – conviction, sentence of 2 months imprisonment to date from 22 June 2018, suspended immediately upon entering into recognizance for 9 months under section 20(1)(b) of the Crimes Act 1914 (Cth)
Catchwords:	CRIMINAL – Sentence – Commonwealth offences - providing false and misleading information to a Commonwealth agency –above mid-range of seriousness - reliability of electoral roll affected - damage flow to democratic electoral system - guilty plea - utilitarian value - sincere remorse and contrition - reduced need for personal deterrence - custodial sentence appropriate - probable effect of sentence on family - exceptional hardship made out - health conditions of young children - ordered to enter in to recognizance
Legislation Cited:	Crimes Act 1914 (Cth) s 16A Criminal Code (Cth) s 137.1(1)
Cases Cited:	Naizmand v R [2018] NSWCCA 25 R v Di Simoni (1981) 147 CLR 383 R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 The Queen v Ehrmann [2001] QCA 50 The Queen v Sevastopoulos (unreported, Supreme Court of Victoria, Crockett J, 8 October 1985) Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions (prosecutor) Fatima Mehajer (defendant)
File Number(s):	2015/00382505
Publication restriction:	Nil