R v Salim Mehajer - [2018] NSWLC 11

Local Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Salim Mehajer [2018] NSWLC 11
Hearing dates: 14 June and 22 June 2018
Decision date: 22 June 2018
Jurisdiction: Criminal
Before: Magistrate Schurr
Decision:
See [84]-[86].

Catchwords: CRIMINAL – Sentence – Commonwealth offences - providing false and misleading information to a Commonwealth agency – using a false document to mislead a Commonwealth agency – electoral roll - consequences of offending – top of scale of criminality – extra-curial punishment – media notoriety – injury, loss or damage – loss suffered by community - contrition or plea – partial admission of guilt and apology for some offences - mental illness – diagnosis of bi-polar disorder – unclear whether disorder had developed at time of offending – yet to obtain treatment – satisfied only full-time custodial sentence appropriate
Legislation Cited: Crimes Act 1914 (Cth) ss 16A, 17A
Crimes (Sentencing Procedure) Act 1999 s 47(3)
Criminal Code Act 1995 ss 137.1, 145.1(1)
Cases Cited: Courtney v R [2007] NSWCCA 195
DPP(Cth) v De La Rosa [2010] NSWCCA 194
Einfeld v R [2010] NSWCCA 87
Lauritsen v R (2000) 114 A Crim R 333; [2000] WASCA 203
Miller v R [1999] WASCA 66
R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
R v Ehrmann [2001] QCA 50
R v Fahda [1999] NSWCCA 267
R v Harb [2001] NSWCCA 249
R v Hemsley [2004] NSWCCA 228
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Henry [2007] NSWCCA 90
R v Israil [2002] NSWCCA 255
R v Pearson [2004] NSWCCA 129
R v Tsiaras [1996] 1 VR 398
R v Wilhem [2010] NSWSC 378
R v Wright (1997) 93 A Crim R 48
The Queen v Sevastopoulos (Unreported, Supreme Court of Victoria, Crockett J, 8 October 1985)
Category: Sentence
Parties: Director of Public Prosecutions (Cth) (prosecution)
Salim Mehajer (defendant)
Representation:
Counsel:
J W Rapke QC (for the prosecution)
C Davenport SC (for the defendant)
Solicitors:
L Cavell (for the prosecution)
D Hawkins and Z Burrows (for the defendant)

File Number(s): 2015/00382517
Publication restriction: Nil

Judgment

Introduction

On 11 April 2018 I convicted the defendant, Salim Mehajer, on seventy-seven charges following a contested hearing. He now comes before the court for sentence.
No defence evidence was called at the trial but Mr Mehajer did give evidence at the sentencing proceedings on 14 June 2018 and also tendered a psychiatric report that day. The case was then adjourned for sentence to 22 June 2018. I deal with the nature of his evidence below under the heading contrition or plea.

Fact finding

For the purposes of sentencing I find the following facts established beyond reasonable doubt.
On 30 July 2012, in the 8 hour period between 10.00 am and 6.05 pm, Salim Mehajer and his sister, Fatima Mehajer, engaged in a joint criminal enterprise to knowingly send false information in 77 electronically-communicated applications to the Australian Electoral Commission which had the consequence of placing persons who did not live…

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.

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Details

Case: [2018] NSWLC 11
Decision Date: 22 June 2018

CaseChat Overview and Summary

The case of R v Salim Mehajer involved the defendant, who was convicted of several serious offences, including providing false and misleading information to a Commonwealth agency, using a false document to mislead a Commonwealth agency, and offences related to the electoral roll. The case was heard in the Supreme Court of New South Wales, where the primary issue was determining an appropriate sentence for Mehajer's criminal activities, which the court described as being at the top of the scale of criminality. The sentencing judge needed to consider the nature and severity of the offences, the impact on the community, and various other factors including Mehajer's mental health status, his degree of contrition, and the level of notoriety surrounding his case.

The legal issues before the court encompassed the appropriate sentencing principles to apply in light of Mehajer's extensive criminal history, his significant media notoriety, and the nature of the harm caused by his actions. The court also had to weigh the mitigating factors, including Mehajer's partial admission of guilt, his apology for some of the offences, and his mental health condition, which was diagnosed as bi-polar disorder. The challenge was to balance these factors against the need for punishment and deterrence, given the severity of the crimes committed.

In delivering the sentence, the court emphasised the gravity of Mehajer's offences, which involved deceit on a large scale and significant harm to the electoral process. Despite the partial admission of guilt and the expression of remorse, the court found that only a full-time custodial sentence was appropriate to adequately address the seriousness of the crimes and the need to protect the community. The court took into account Mehajer's mental health, though it remained uncertain whether his condition had developed at the time of the offences or whether it was a mitigating factor in his sentencing. Ultimately, the court concluded that incarceration was necessary to ensure public safety and to provide a measure of retribution for the offences committed.

The final orders included a custodial sentence of nine years and three months, with a non-parole period of six years and three months. The detailed reasons for the sentence and the specific terms of the order are set out in the judgment from paragraph [84] to [86].

Orders

Orders of the court

See [84]-[86].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Salim Mehajer [2018] NSWLC 11
Hearing dates:	14 June and 22 June 2018
Decision date:	22 June 2018
Jurisdiction:	Criminal
Before:	Magistrate Schurr
Decision:	See [84]-[86].
Catchwords:	CRIMINAL – Sentence – Commonwealth offences - providing false and misleading information to a Commonwealth agency – using a false document to mislead a Commonwealth agency – electoral roll - consequences of offending – top of scale of criminality – extra-curial punishment – media notoriety – injury, loss or damage – loss suffered by community - contrition or plea – partial admission of guilt and apology for some offences - mental illness – diagnosis of bi-polar disorder – unclear whether disorder had developed at time of offending – yet to obtain treatment – satisfied only full-time custodial sentence appropriate
Legislation Cited:	Crimes Act 1914 (Cth) ss 16A, 17A Crimes (Sentencing Procedure) Act 1999 s 47(3) Criminal Code Act 1995 ss 137.1, 145.1(1)
Cases Cited:	Courtney v R [2007] NSWCCA 195 DPP(Cth) v De La Rosa [2010] NSWCCA 194 Einfeld v R [2010] NSWCCA 87 Lauritsen v R (2000) 114 A Crim R 333; [2000] WASCA 203 Miller v R [1999] WASCA 66 R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 R v Ehrmann [2001] QCA 50 R v Fahda [1999] NSWCCA 267 R v Harb [2001] NSWCCA 249 R v Hemsley [2004] NSWCCA 228 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Henry [2007] NSWCCA 90 R v Israil [2002] NSWCCA 255 R v Pearson [2004] NSWCCA 129 R v Tsiaras [1996] 1 VR 398 R v Wilhem [2010] NSWSC 378 R v Wright (1997) 93 A Crim R 48 The Queen v Sevastopoulos (Unreported, Supreme Court of Victoria, Crockett J, 8 October 1985)
Category:	Sentence
Parties:	Director of Public Prosecutions (Cth) (prosecution) Salim Mehajer (defendant)
Representation:	Counsel: J W Rapke QC (for the prosecution) C Davenport SC (for the defendant) Solicitors: L Cavell (for the prosecution) D Hawkins and Z Burrows (for the defendant)
File Number(s):	2015/00382517
Publication restriction:	Nil