R v Mehajer [2013] NSWDC 266

District Court New South Wales

Medium Neutral Citation: R v Mehajer [2013] NSWDC 266 Hearing dates: 18th December 2013 Decision date: 18 December 2013 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of an overall sentence of non-parole period of 2 years and period of eligibility for parole of one and a half years Catchwords: CRIMINAL LAW - Sentence after trial - Conspiracy to cheat and defraud - Corruptly give a benefit Legislation Cited: Crimes Act Category: Sentence Parties: The Crown Mohamad Mehajer Representation: Mr A Robertson - Crown Mr I Barker QC - Offender Director of Public Prosecutions LawyersCorp Pty Ltd - Offender File Number(s): 2010/364191

SENTENCE 1HIS HONOUR: In late 2008, Mohamad Mehajer, a property developer, was anxious to refinance a large loan he had with Suncorp Bank. He needed to borrow more than $3 million from another source to pay out the Suncorp loan, but there were a number of matters which suggested, at least on paper, that any financial institution considering lending him that sum of money would have some concerns. One of the financial institutions approached was the National Australia Bank Limited. 2Acting on Mr Mehajer's behalf was a man known as Mohamed Diab. Mr Diab, aware of the concerns that the National Australia Bank Limited was likely to have, created a false document in order to pretend to the National Australia Bank Limited that Mohamad Mehajer was involved with the development of properties where there was no development planned. With the offender's agreement, that document was used as part of a loan application to the National Australia Bank. 3Another false document was created, probably by someone else. Mohamad Mehajer gave this further document to Mohamed Diab so that it could also be used as part of the application. This document showed Mr Mehajer's financial position to be much rosier than it really was. Those two documents were used as part of an agreement between the offender and Mohamed Diab to cheat and defraud the National Bank of more than $3 million. A jury found the offender guilty of that offence on 26 July 2013. 4The offender also faced trial at the same time on a charge of corruptly giving a benefit to Mohamad Sowaid. Mr Sowaid was employed by the National Australia Bank and was one of the bank officers who was to process the loan application. Mr Mehajer gave Mr Sowaid $2,000 in cash. At his trial, Mr Mehajer claimed that this was simply so that Mr Sowaid would work overtime and indeed he claimed that as he handed the money to Mr Sowaid, in private he said "this is not a bribe," but the evidence surrounding the circumstances of the payment clearly demonstrated that it was. The jury found Mr Mehajer guilty of an offence under s 249B(2) of the Crimes Act. 5There is one aspect of that verdict which requires examination by me as part of the sentencing process. I directed the jury that it was possible that even on Mr Mehajer's version of events he was guilty of the offence. Thus it falls to me to determine the facts on which I will sentence Mr Mehajer. I am satisfied beyond reasonable doubt that the version he gave in his evidence should be rejected and the version advanced by the Crown, based as it was on the evidence of Mohamad Sowaid, should be accepted. There are a number of reasons for this. 6Firstly, as I have hinted, if the payment was simply intended to be a gift to reward Mr Sowaid for working overtime, then there would be no need for that payment to be made in private. 7Secondly, the strongest evidence as to the purpose of the payment is to be found in what happened when the loan was not approved. Although the offender himself did not ask for the $2,000 to be returned, Mr Sowaid was asked by someone else to return the money, and an intercepted telephone call reveals Mr Mehajer making no protest when Mr Sowaid told him that he was going to return the money. 8Thirdly, the context of other telephone calls involving Mr Diab and others clearly suggests that Mr Diab at least understood the money to be intended as a bribe. 9Fourthly, Mr Mehajer could give no explanation as to how he had determined the amount of $2,000 was appropriate if it was only intended to cover Mr Sowaid's overtime work. There was no enquiry as to how many hours it would take Mr Sowaid to process the loan, nor what Mr Sowaid was paid for overtime work. 10In truth, what Mohamad Mehajer did was attempt to bribe Mr Sowaid to overlook any problems in his loan application because he was in urgent need of loan approval. 11It is important in assessing the objective gravity of each of these two offences to bear this important circumstance in mind: Although it was Mr Mehajer's intention to get more than $3 million out of the National Australia Bank, it was also his intention that the money would be repaid. This was not a case where Mr Mehajer intended to take the money and run. It is a case where he intended to get a loan which he thought he might not otherwise get. It was Mr Mehajer's intention to present himself to the bank as a better risk than he truly was. It is also important to bear in mind that no loan was ever granted and so the National Australia Bank never suffered any loss, nor, had the loan been granted, was it likely to have suffered any loss given Mr Mehajer's financial position at the time. 12On the other hand, that is not to suggest that these offences are not serious. They clearly are. They were both offences of significant dishonesty, significant even in the murky world of finder's fees, commissions, and seemingly random charges which became apparent as the evidence in Mr Mehajer's trial progressed. Although others may have suggested some of the dishonest means - I refer to the false documents - as a means of obtaining the loan, the offender readily embraced them and acted further in a dishonest way by attempting to bribe Mr Sowaid. The fact that the money was to be repaid, (it was always Mr Mehajer's intention so to do), means that this conspiracy charge is less culpable than most offences of this type but, I repeat, it is still a serious offence. The bribery charge was serious as well, especially given the findings of fact I have made. I referred when sentencing Mr Sowaid to some of the matters which make bribery offences such as these as serious as they truly are. 13It is somewhat remarkable that the offender has committed his first offences after a lifetime of good work. Until he committed these offences, he was a man of good character. He appears to have been a successful property developer who reaped the rewards of his hard work and astute investments. He is a father and grandfather, and he is rightfully proud of what he has achieved. He has worked hard to develop parts of Auburn. He is a successful businessman. He has encouraged his children to engage in their own education and he has been dramatically successful in that regard. His children are all either at university, have graduated from university or, in the case of the youngest, at high school. He has led his family in a manner of which all of us would be proud. 14There is more too. The offender has demonstrated much unselfish behaviour. He is involved in a not for profit organisation called the Australian Community Association. He is a leader in the Auburn community and done much good work there. 15References attesting to his good character were tendered to the Court today, although I do have to say that those referees who continue to assert the offender's innocence clearly provided references of lesser value because of that circumstance, but that is a very minor matter in the assessment of the offender's character. And so at 57 years of age he comes to be sentenced for serious crimes for the first time. He has a remarkable and extensive bank of good character on which he is entitled to rely. 16There is one particular matter that I need to refer to in assessing the criminality of the conspiracy charge which I should have mentioned earlier. That assessment requires more than just looking at the particular acts of a particular offender, it's the combination of minds with an illegal purpose which is part of the criminality involved in a conspiracy charge. 17The offender is not to have a justifiable sense of grievance when he compares the sentence that I impose upon him with those I imposed on two co-offenders, Mr Sowaid and Mr Diab. Mr Sowaid, who agreed to assist the authorities and did so, was ordered to perform 400 hours community service. Mr Diab received a discount for assistance and pleading guilty, and received a sentence of three years consisting of a non-parole period of 18 months and a period of eligibility for parole of 18 months. Before discount, those sentences would have been 27 months non-parole period with a head sentence of four years and six months. 18I have little hesitation in finding that Mr Diab was keener than the offender to use the dishonest means to promote Mr Mehajer's loan application. On the other hand, as I said before, the offender embraced those dishonest means enthusiastically and his decision to bribe Mr Sowaid appears to have been his alone. 19The Crown concedes that there is no need for any level of accumulation in the two sentences to be imposed. Not surprisingly, Mr Barker QC submitted similarly, but I do not agree. Although there is some overlap of course, the two offences represent separate and discrete elements of criminality. The conspiracy charge focused on the use of two documents without benefit to anyone at the bank. The bribery charge is of a different nature, it is a different form of corruption, and so I will partially accumulate the sentences to reflect that circumstance. 20It is to be remembered that the offender did not plead guilty. He of course is not to be punished for that, but he does not receive any discount for any utilitarian assistance that a plea of guilty would carry. 21It is also of course relevant to assess his prospects of rehabilitation that he does not admit, apparently to this day, that he did anything wrong. Sometimes that can be an impediment to a finding that an offender has good prospects for rehabilitation, but I will not make that finding in this case, if only because of the substantial personal deterrence that the sentences I am about to impose will carry with them. 22Mr Barker relied on extra-curial punishment. The offender's business will suffer and he may well lose licences he requires in order to carry on his business. I will take those matters into account, but I will not take into account any hardship to third parties that may eventuate. The law is clear. I am only able to do that in the event that hardship is exceptional. It is not exceptional that breadwinners are sent to gaol. It is not exceptional that families lose the support of a loved one. It is not exceptional that successful businessmen are less able to provide for their families because they are sent to prison. 23Of course, the offender will know that it is his misconduct which has led to this very situation. His time in prison will be affected by that circumstance, but there are probably more important features regarding the offender's time in prison than that. 24Prisons are terrible places. They are not places for a 57 year old with no prior criminal convictions. He will stand out. Other prisoners do not like people who stand out. He will have a time in gaol which is likely to be isolated and hard for him to understand. In making that last comment I do not refer only to his language difficulties, he being assisted by an interpreter throughout the sentencing proceedings and for most of the trial. 25Mr Barker also relies on delay. There has been a significant delay between when these offences were committed and when the offender is being sentenced for them. There has even been a delay between conviction in June this year and sentence. 26There are two reasons for that, none of which is attributable to the offender. The first is that when the matter was first listed for sentence, the Court neglected to order an interpreter for the offender. The second is that my arrangements were such that I could not return to this matter until today. I will take into account the delay between offence and today's sentencing proceedings in the offender's favour. The report of Dr Westmore tendered today referred to the difficulties that the offender has had waiting for this day to come. They are very real and understandable given what must necessarily happen today. 27This is a case where although imprisonment is of course a sentence of last resort, it is necessary that such a sentence be imposed. Indeed, the submissions of Mr Barker conceded that a sentence of imprisonment was required and concentrated on attempting to persuade me to impose a sentence of such length the alternatives to full time imprisonment were available. The length of the sentences that I have chosen is such that no alternatives to imprisonment arise. I make a finding of special circumstances in the offender's favour, his age and the fact that he is going into custody for the first time, justify reducing the non-parole period at the expense of the period of eligibility for parole. 28I impose sentences as follows. 29On count 2 I impose a fixed term of imprisonment of 18 months to date from today 18 December 2013. On count 1 I impose a sentence of imprisonment consisting of a non-parole period of 18 months with a head sentence of three years to date from 18 June 2014. Thus the overall sentence is one consisting of a non-parole period of two years, a period of eligibility for parole of one and a half years, and a head sentence of three and a half years. The offender is eligible to be released to parole on 17 December 2015.