Local Court New South Wales 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 1. 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. 2. 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 1. For the purposes of sentencing I find the following facts established beyond reasonable doubt. 2. 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 in the Auburn Council electorates onto the Auburn Council electoral roll in the first or, for one person, the second ward of the Auburn Council wards. Their text message exchanges on the day constituted direct evidence of the planning and intention: Exhibit 103. The intense activity arose from the fact that neither Mr nor Ms Mehajer had known - until later that day - that the electoral rolls were to close at 6pm that same day: Exhibit 103, messages. A large number of applications were sent over a short period and there was an implication in the messages that they could have sent more with more time: Exhibit 103, messages at 18:02 to 18:06. 3. The applications came from only two computers, one registered to a Mehajer family company and the other registered to the address where many members of the Mehajer family resided. 4. The applications contained a variety of personal identification information required in such applications to the Australian Electoral Commission. The source of that cache of data was not clear from the evidence at the hearing. The information included dates of birth, drivers licence numbers and passport numbers. Some of the detail in the applications – not just the addresses - was not correct or made up. Some of the applications were made in the name of persons who were not at that time enrolled to vote. There was evidence that Mr Mehajer obtained some of that information earlier that day from the six persons who were later nominated as candidates along with himself and Ms Mehajer. The information about the Mehajer family members was presumably easy to come by. 5. There was no evidence at the trial as to the source of the data. At the sentencing proceedings on 14 June 2018 Mr Mehajer offered an innocent explanation for the source of some of the information, and I deal with his evidence below in the context of plea or remorse. 6. The efforts of the two defendants succeeded only in part. Vigilant staff at the Australian Electoral Commission stopped processing the electronic applications late in the afternoon when they became suspicious of the number of applications and the repeated use of certain addresses. However, eighteen of the applications had already been processed before the freeze was imposed and the names of 18 ineligible persons had been placed on the electoral roll at the false addresses. 7. In summary, I was satisfied beyond reasonable doubt that on 30 July 2012 Mr Mehajer, in a joint enterprise with his sister Ms Mehajer, sent electronic applications to the Australian Electoral Commission in the name of 77 persons. The applications falsely asserted that the applicants lived within the Auburn Council electorate, particularly Ward 1, and applied to the Australian Electoral Commission to transfer their registration on the electoral roll to the false addresses. 8. I was satisfied that Mr Mehajer committed the 51 offences under s 145.1(1) of the Criminal Code Act 1995 (Cth) in that he sent the false information to the Australian Electoral Commission with the intention of inducing the Electoral Commission to accept the applications as genuine and to place these persons on the roll at false addresses. I was satisfied that he committed the 26 offences under s 137.1 of the Criminal Code in that he sent address information to the Australian Electoral Commission knowing that it was false and misleading. The charges 1. The 26 charges of supplying false or misleading information to a Commonwealth agency (Criminal Code s 137.1(1)) related to: * Members of the Mehajer family: Salim Mehajer, Fatima Mehajer, and Khadijeh Mehajer, Nouha Mehajer, Zena Mehajer, Amal Mehajer, Aisha Mehajer, Mohamad Mehajer and Khaled Mehajer, and the unsuccessful application in the name of Ayisha Learmouth – sequences (77), (78), (94)-(101) [10 charges]; * The six ineligible candidates - Jamal Elkheir, Fatima Kandil, Shi Lao, Abhinav Meht, Arjun Mehta and Ahmad Trad – sequences (93), (102)-(108), (110) [9 charges]; * Three of the four other applications submitted before 5pm – Sabah Bakkour and Robert El-Khoury, Rouba Zaoud – sequences (91), (92), (109). (The charge in relation to Doonya Tayar was laid under s 145.1 – sequence (69) [3 charges]) * Four other named persons – Majed Kanj, Omar Kanj, Fahdi Mustafa Kamal, Joe Portilla – sequences (87)-(90) [4 charges]. 1. The 51 charges of using a false document with intent to mislead a Commonwealth agency (Criminal Code s 145.1) related to the balance of the applications that indicated a false electoral address to a false address for each person. 2. I am satisfied beyond reasonable doubt that the personal information material was prepared beforehand in preparation for the offending, and that the offending was planned, notwithstanding that they made a mistake about the closing date for changes to addresses. Consequences of the offending 1. The sending of the applications had the following consequences. 1. The 18 persons named in the applications which were processed were registered to the false addresses on the electoral roll by the Australian Electoral Commission; 2. Votes were cast in the 2012 Auburn Council elections in the names of all 18 ineligible electors whose names had been placed on the Auburn Council electoral roll. I note that the identity of the person who cast those votes (many by pre-poll) was not established and no-one has been charged. 3. Mr Mehajer, Ms Mehajer and six other persons - Lao Shi, Fatima Kandil, Arjun Mehta, Ahmad Trad, Jamal Elkheir and Abhinav Mehta – stood as candidates in the September 2012 Auburn Council elections as part of the Mehajer groups under the false addresses entered on the electoral roll. These candidates received votes at the elections. 4. Mr Mehajer, Ms Mehajer and seven other members of the Mehajer family were registered to vote in the Council elections at a false address. They were Khadijeh Mehajer, Nouha Mehajer, Zena Mehajer, Amal Mehajer, Aisha Mehajer, Mohamad Mehajer and Khaled Mehajer; 5. Applications to change addresses into the Auburn electorate in the names of another three persons - Sabah Bakkour, Doonya Tayar, Robert El-Khoury – who were ineligible because they resided outside the electorate were accepted by the Australian Electoral Commission during the same period and votes were also cast in their names by persons unknown; and 6. The balance of fifty-nine applications were put to one side by the Australian Electoral Commission and not considered until after the Council elections. There followed many months of investigation as Commonwealth officials located and interviewed the named persons. Mr Mehajer was subsequently charged with 51 offences under s 145.1 of the Criminal Code as a result of these applications. 1. Salim Mehajer succeeded in being elected to Council from Ward 1 in September 2012. On the one hand the eighteen votes from the falsely registered voters were not decisive: cf. R v Ehrmann [2001] QCA 50 at 3. On the other hand, Mr Mehajer benefited from putting together two teams using the seven other falsely enrolled candidates to be two groups and therefore had the benefit of receiving votes cast "above-the-line", a benefit that I am satisfied existed but cannot be quantified. Court proceedings 1. The offences took place on 30 July 2012. Investigations commenced after the September 2012 Council elections. A great deal of paper and electronic evidence was compiled. 2. Court Attendance Notices were issued in December 2015. On 2 February 2016 the Commonwealth elected to have the charges dealt with summarily. On 19 July 2016 the defence notified the court that the accused elected to proceed indictably, however that election was withdrawn in September 2016. A hearing date was set for November 2016 but was vacated due to the pregnancy complications suffered by Ms Mehajer. In November 2016 a joint trial of Mr Mehajer and Ms Mehajer was set down for hearing for four weeks in June-July 2017. 3. On the first day of the hearing on 15 June 2017 Ms Mehajer entered pleas of guilty to 77 charges under s 137.1 of the Criminal Code, and 26 charges under s 145.1 were withdrawn and dismissed. 4. The hearing proceeded against Mr Mehajer alone. Fifty-four witnesses gave evidence and 137 Exhibits were tendered. Thirty-six of the persons named in the applications gave evidence and were cross-examined, and a further 18 named persons gave evidence by way of statements. 5. The only evidence at the hearing was that led by the prosecution. There was no case in reply. There were delays after the evidence was taken due to a change in representation which delayed the filing of written submissions. The defendant was found guilty of all charges on 11 April 2018. Maximum penalty 1. The maximum penalty for an offence under s 137.1(1) is 12 months. The maximum penalty for the offences under s 145.1(1) is 10 years if dealt with on indictment. I note the statement of the law by Grove J in R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 at [35] that the Local Court may take into consideration maximum penalties available on indictment when sentencing for offences dealt with summarily in the Local Court: Criminal history 1. At the time of the offences, Mr Mehajer had no prior convictions. He had received a s 10 bond in February 2008 for damaging property and a s 10 dismissal in December 2008 for possessing a restricted substance. 2. Mr Mehajer is currently on bail and is the subject of bonds – all for unrelated matters committed or allegedly committed years after these offences. Prosecution submissions on sentence 1. The prosecution relied on a 26-page written submission dated 4 June 2018, provided to the court in accordance with a timetable. These were supplemented by oral submissions after the unexpected evidence of Mr Mehajer on 14 June 2018 at the sentencing proceedings and the tender by the defence of the report of Dr Nielsson on that day. 2. The prosecution's written submissions call for a custodial sentence to reflect the serious criminality. It was submitted by the Commonwealth that the court could not backdate the sentence to take into account time spent in custody bail-refused on other unrelated mattes: Crimes (Sentencing Procedure) Act 1999 s 47(3). I agree with the submission in relation to backdating. 3. The prosecution referred the following comparative cases – The Queen v Ehrmann [2001] QCA 50 and The Queen v Sevastopoulos (Unreported, Supreme Court of Victoria, Crockett J, 8 October 1985). Both cases were appeals from sentences imposed in the District Court under similar legislation and involved enrolling persons at false addresses in the relevant electorate. I take into consideration that these were sentences imposed in the higher courts. However I also note that both persons pleaded guilty. 4. Ms Ehrmann entered a plea of guilty to 47 charges after committal but before a trial had been set down. The offences had been committed over a period of years. Ms Ehrmann was sentenced to 3 years imprisonment with a release order after 9 months in custody upon entering into a recognisance. The charges against her involved false registration of voters in the council electorate, initially with the intention to effect party pre-selections. Ms Ehrmann succeeded in obtaining pre-selection – and would have even without the votes of the falsely registered persons – but had to stand aside as a candidate after she was charged. A co-accused who pleaded guilty at the start received a sentence of 3 months that was suspended immediately on the condition that he enter into a recognizance. 5. Mr Sevastopoulos pleaded guilty on arraignment to 64 charges. The offences were committed over a period of years. He was sentenced to 1 year 10 weeks, with an unclear release date. The charges related to falsely registering people to vote for him in Richmond Council elections. He said in evidence that he wished to join the famously-corrupt Richmond Local Council in order to reform it. He was a person of prior good character. 6. After Mr Mehajer gave evidence on 14 June 2018, the prosecution submitted that Mr Mehajer had dissembled and not told the truth during his evidence. It was submitted that Mr Mehajer had minimised his role and also had not accepted responsibility for intention to commit offences. In relation to rehabilitation, it was submitted that the number of convictions he had received since 2015 was a better indication of a poor future prognosis. I agree that the apology was far from a full acknowledgment of guilt and I deal with Mr Mehajer's evidence below under the heading of contrition. 7. In relation to Dr Neilsson's report, the prosecution submitted that the report contained elements of "troubling partisanship". I agree in that Dr Nielsson wandered far from his area of expertise when he commented, in response to questions raised by the instructing solicitor, in relation to the following issues: * The effect of incarceration on Mr Mehajer's ability to prepare for his civil matters before the courts * Difficulty Mr Mehajer faced in consulting files and documents in preparation for his cases * Mr Mehajer's need to be at liberty to address bankruptcy proceedings * Dr Neilsson's comment that Mr Mehajer's "abnormally strict bail conditions, and the events that led to his bail being revoked, are also consistent with an extraordinary degree of police surveillance, considering the extent of Mr Mehajer's alleged criminal activity" 1. However, there is no challenge to the actual diagnosis. 2. I address other issues in relation to Dr Neilsson's report below under the heading of mental health. Evidence and submissions on behalf of Mr Mehajer 1. No written submissions were received on behalf of Mr Mehajer. 2. Oral submissions were made in court on 14 June and 22 June 2018 following the evidence of Mr Mehajer. Mr Mehajer's barrister submitted on Mr Mehajer's behalf that the defendant accepted the submissions on behalf of the Commonwealth. It was submitted however that Mr Mehajer's evidence could be accepted as evidence of remorse, in hindsight, for what he had done, even though he was equivocal in relation to some charges, and that it would assist the court in having confidence in his prospects for rehabilitation. 3. The defence also submitted that the court could rely on the report by Dr Neilsson as evidence that there is a lessor role for general and specific deterrence: DPP (Cth) v De La Rosa [2010] NSWCCA 194. The submissions also referred to the more onerous conditions Mr Mehajer faced in custody – he had been in segregation when in custody on remand – because of his notoriety. It was noted that he has not yet started treatment for his mental illness, but that was in the context that his life had been chaotic recently, being in and out of custody. His prior good character and charitable works were referred to. There was a reference to delay in proceedings, but I note the number of the charges and the complexity of the evidence, requiring interviews with a large number of persons and the examination of a great deal of evidence in electronic form on computers and telephones. I also note that the trial was delayed for a further seven months because of Ms Mehajer's illness, and the decision delayed for several months after Mr Mehajer changed lawyers and submissions were delayed. I do not agree that there was unusual delay. Assessment of criminality 1. For the purposes of proceeding to sentence I am of the opinion that these matters fall towards the top of the scale of criminality for this kind of offence due to the planning, the number of applications and the consequences of the applications. 2. The offences took place on a single day, however there was a high level of planning. Names, addresses and identifying information of the person's whose addresses were to be changed were immediately at hand, as can be seen by the fact that applications were sent at the rate of one a minute between 5.06 pm and 6.05 pm on 30 July 2012. There may have been some email exchanges between the accused and his sister about the destination addresses, but the original personal data was apparently at hand in summary form. 3. The purpose of the applications the subject of the charge under s 145.1 was to influence the Australian Electoral Commission to register more than 51 persons as being eligible to vote in Auburn council elections in which they were not eligible to vote. All the persons who gave evidence said that they were unaware of the applications. 4. Mr Mehajer benefitted from the applications. He was able to stand as a candidate in Ward 1 with a group of candidates most of whom lived outside the electorate. A vote was cast in his name when registered at the false address. Extra-curial punishment 1. In further submissions on 22 June 2018 it was submitted on behalf of Mr Mehajer that the court should take into consideration the extra-curial punishment of Mr Mehajer, being his media notoriety and the impact upon his life arising from these charges: Einfeld v R (2010) 200 A Crim R 1; [2010] NSWCCA 87 at [980-[101]; R v Wilhem [2010] NSWSC 378. This submission was accompanied by an unsworn letter from Mr Mehajer complaining about media harassment, negative publicity and humiliation dating from when he was charged with electoral fraud in December 2015. He said that after the charges were laid that "it was from this day forward that my world was turned upside down". 2. Mr Mehajer had the opportunity to put such matters before the court in proper form on 14 June 2018, and to be cross-examined on them. I do not accept the letter as a form of sworn evidence. I will address the issue of "extra curial punishment" in relation to the settled law, although the facts here are contested, unlike the case of Mr Einfeld. 3. I note at the start that Mr Mehajer seems to have first come to the attention of the press after his wedding in August 2015 – before he was charged. The complaints about the conduct of that well-publicised wedding led to his notoriety. 4. Mr Mehajer has continued to be in the public eye due to various unrelated civil and criminal proceedings commenced after he was charged with these offences in December 2015. There were no other proceedings involving Mr Einfeld. Mr Wilhelm's notoriety arose from the long-running coronial inquiry into the death of Ms Brimble on a cruise ship prior to his being charged. 5. In Mr Mehajer's case, he has been involved in many subsequent events of public interest justifying media interest. He has attempted to manage some of that interest by posting material on-line, not always successfully. I am not satisfied that media interest in a person with many cases before the courts, and who has now been convicted of serious criminal offences, is unreasonable, and I note that there is no law of privacy in Australia. 6. In the case of Mr Einfeld, the court took into consideration that Mr Einfeld lost his right to practice law upon his conviction for perjury and perverting the course of justice. I note that it appears that Mr Mehajer's on-going civil matters may have been the cause of changes in his legal status (particularly the convictions and the contested bankruptcy) in relation to his capacity to conduct business and work, and that is not a matter of extra-curial punishment arising from these offences. I also note that in Mr Einfeld's case it was accepted that prior to his offending Mr Einfeld held a position of high social status in the community as a former judge and a lawyer. Mr Mehajer was not widely known before 2015. 7. Further, there was no expert evidence before me as to Mr Mehajer's mental condition in 2016 arising from media coverage. The report of Dr Nielsson tendered on 14 June 2018 may be relied upon as evidence that Mr Mehajer had developed a bi-polar disorder by the time of his wedding in August 2015, before these charges were laid. 8. Justice Howie was quoted as saying that a case must be "exceptional" before the psychological impact of the publicity about offending could be taken into consideration as extra curial (or out of court) punishment: Kenny v R [2010] NSWCCA 6 (cited in Einfeld at [100]). I am not satisfied that there are "exceptional" conditions here, as there is no expert evidence that these December 2015 charges caused Mr Mehajer's suffering. I am satisfied that offences committed subsequent to these charges simply increased media attention. I am not satisfied on the balance of probabilities that the media attention is a mitigating circumstance in this particular case in sentencing. Commonwealth sentencing considerations 1. I take into consideration the following matters pursuant to s 16A of the Crimes Act 1914 (Cth). Personal circumstances and character 1. Mr Mehajer was aged 26 at the time of the offences and has recently turned 32. There was no evidence of mental or physical incapacity at the time of the offending. He was single at the time of the offences and is now separated. He told Dr Nielsson that he now suffers from a back injury. He has no children. He has attended university studying engineering and construction. He wishes to study law. He was the director of several companies involved in construction and development. He was involved in the family charity established by himself or his father. He currently faces various civil and criminal proceedings concerning unrelated matters. 2. References were tendered at the sentencing proceeding on 14 June 2018 (see Annexure). Among them were references from Mr Mehajer's mother and father - Amal and Mohamad Mehajer. They did not refer to the fact that they were the subject of fraudulent applications to the Australian Electoral Commission and votes were cast against their names in the 2012 Auburn Council elections on the basis of those false addresses. Mr Mohamad Mehajer blamed himself for Mr Mehajer's problems, saying that he spoilt his son and treated him as the "golden child". Mohamad Mehajer also expressed fears that the family could lose their home if Mr Mehajer were to be in custody and unable to sort out the bankruptcies of the various businesses. Injury, loss or damage: s 16A(1)(e) 1. In relation to the assessment of any injury, loss or damage resulting from the offences I take into consideration the following loss suffered by the community. 2. The direct effect of the offences was that the reliability and integrity of the electoral roll was affected by the registration of persons based on false information. This strikes at the heart of the democratic electoral system. 3. The indirect effect of the offences included that candidates stood who were not eligible because they lived outside the electorate and votes were cast (by persons unknown) at the subsequent election against names that were falsely enrolled in the electorate. 4. The prosecution further submitted that the court should take into consideration the votes cast by Mr Mehajer as a Councillor of Auburn Council between October 2012 and December 2015. A chart of the council votes was annexed to the written submissions. I note that there is no evidence of any finding that Mr Mehajer committed offences while exercising the role of councillor. I am not satisfied that there is evidence of loss or damage, apart from the fact that his election was secured after he committed these offences. Contrition or plea: s 16A(2)(g) 1. A sentencing court may take into consideration contrition and a plea of guilty: Crimes Act s 16A(2)(g). This includes consideration of the utilitarian value of the plea in saving time and cost to the community. 2. Mr Mehajer pleaded not guilty to all charges and put the prosecution to the test of proving all offences during the hearing in June and July 2017 and the subsequent written submissions. He did not give evidence in the hearing and the defence called no witnesses. 3. However on 14 June 2018, the day set down for sentence, Mr Mehajer did give evidence and said that he "apologised" for his actions and said that he was taking responsibility for them. He commenced by saying that he was apologising for "my actions, my behaviour – the verdict explains it". He described his actions as "reckless". He was sorry for having involved his family members in the saga. 4. However, in cross-examination he seemed to equivocate. He was asked if he now accepted the verdict of the court and that he knowingly and deliberately set out to commit a fraud, he replied: "Even if I didn't have the intention, it happened and I am guilty". 1. Some offences were not acknowledged: "I will accept some, some I think should have been dropped because I was not clearly involved in the offence". 1. Referring to those applications in which he was "not involved" he said: Some I didn't do. I was given those papers at a campaign dinner. I will give an explanation. A person who worked for me – Kanj – he went and got details from family members – he told me these were current. I didn't get their information. They had the same surname. 1. Twenty of the charges related to applications in the name of persons with the family name of Kanj. In relation to getting the information at a "campaign dinner", I note that a Council election campaign dinner was held but it was after the 30 July 2012 electoral roll cut-off date and after the date on which all the applications the subject of these charges had been sent to the Australian Electoral Commission. I also note that during the hearing, while some witnesses were asked in cross-examination whether they knew a Mr Yasseen, none were asked about a Hassan Kanj. 2. I am not satisfied that Mr Mahajer's evidence was a complete acknowledgement of the mental elements of even the offences for which he now acknowledges responsibility. 3. That view is reinforced by parts of the letter from Mr Mehajer handed up in court on 22 June 2018, in which he refers to the events involving the electoral roll charges as "just a mistake". 4. In relation to the utilitarian value of the qualified admissions, they saved no time at all and slightly delayed the sentencing procedure. Nor did they finalise the proceedings in that the court's findings in relation to "some" of the charges, as Mr Mehajer said in his evidence, could still be the subject of an appeal "down the line". 5. There is some evidence of remorse and contrition in the apology. Mr Mehajer said that the illegality of his actions had become clearer after he had spent some time on remand on other charges. He also said that he had since studied law for one semester and that his level of understanding "is much greater now". 6. I take the late and partial admission of guilt into consideration. I indicate a very small discount of 5% for the expression of regret and apology for some of the offences, as going towards prospects for rehabilitation. Mental illness, general deterrence, specific deterrence and prospects for rehabilitation 1. Mr Mehajer received a diagnosis of bi-polar mood disorder in the report dated 13 June 2018 by Dr Nielssen, psychiatrist, and tendered in the sentencing proceedings on 14 June 2018. The diagnosis was based on two interviews, and self and family reports of elevated mood and mania. Dr Neilsson also stated at page 6: I am unable to comment on Mr Mehajer's state of mind around the middle of 2012, which was before his much-publicised wedding, during which he was probably in the hypomanic phase of the disorder. However the diagnosis of bipolar disorder is often delayed, as the average duration between the emergence of the symptoms of bipolar disorder and the initiation of treatment for the condition worldwide is about five years, with the condition often being mistaken for narcissistic and other abnormal personality traits and attention deficit hyperactivity disorder. 1. I note that the wedding took place in 2015. 2. It appears that Mr Mehajer has not commenced treatment, although he said in evidence on 14 June that he accepts the diagnosis. I note in his mother's character reference she said that he has promised her that he will get treatment "as a priority". 3. Several issues arise. The first is that Dr Neilsson cannot say whether Mr Mehajer had developed bipolar disorder by July 2012 so therefore the diagnosis carries less weight in relation to sentencing for the 2012 offences. Secondly, Mr Mehajer has not commenced to see medical practitioners about treatment, even though he was released on bail on 7 June 2018. Finally, there is no evidence of a nexus between the illness and the offending. While a person with grandiose ideas may contemplate getting involved in public life by way of being a member of a Local Council, there was no evidence as to any nexus with obtaining that position by way of fraud. It was Mr Mehajer's evidence that he wished to enter politics in order to help the community. I note that it was Mr Sevastopoulos's to become a member of the-then apparently corrupt Richmond Council in order to reform it, but he received a prison sentence (see The Queen v Sevastopoulos (Unreported, Supreme Court of Victoria, Crockett J, 8 October 1985)). 4. Both parties addressed on the issue of mental illness and nexus with offending. I set out the summary of issues by McClellan CJ at CL in De La Rosa at [177] : Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiaras [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. 1. The defence bears the onus of proof on the balance of probabilities to establish that Mr Mehajer's mental health in 2012 contributed to "the commission of the offence in a material way". There is no satisfactory evidence of it having had a material influence. 2. The protection of the integrity of the electoral roll requires a sentence that reflects an element of general deterrence, to deter persons or institutions that may wish to interfere with the electoral roll. Given the absence of evidence that mental illness in 2012 had a material effect on the commission of the offences, the need for denunciation in the sentence is not reduced. It may be more relevant to more recent offending. 3. I do accept that if Mr Mehajer commences and continues treatment for the disorder that the prospects for rehabilitation are enhanced and the need for specific deterrence reduced. 4. In relation to whether the diagnosis would make the sentence weigh more heavily upon Mr Mehajer, I am satisfied that he would have access to adequate medical treatment in custody, although it would not be as easily and regularly accessed as it would in the community because of the well-known demands upon the prison medical service. Dr Nielsson's report does not contain a treatment plan apart from the recommendation that he consult a psychiatrist and commence treatment with "mood stabilizing medication". That treatment has not yet commenced. 5. In summary, I take into consideration the recent diagnosis of bi-polar disorder. Even though there is no evidence that it was a factor in the offending six years ago, I take it into consideration as a factor promoting prospects for rehabilitation and reducing the need for specific deterrence. Custodial sentence 1. Before I may impose a full-time custodial sentence I am required by law to be satisfied that no other sentence other than a full-time custodial sentence is appropriate: Crimes Act 1914 (Cth) s 17A. 2. I am satisfied that only a full-time custodial sentence is appropriate. I do so because of the serious criminality of the offending, which strikes at the heart of the democratic process and the integrity of the electoral roll. The offences were aimed at manipulating electoral officials to act to include on the electoral roll persons not eligible to be there at the nominated addresses. The offending was planned. There were consequences such as ineligible candidates standing for elected office and for ineligible persons voting in elections. The sentence I am going to impose must reflect the severity of the offending. Sentence 1. I impose a full-time concurrent custodial sentence for these offences, taking into consideration the matters set out above under ss 16A and 17A of the Crimes Act. I also note that the Local Court may take into consideration the penalties that could have been imposed in the District Court if the matters had proceeded indictably when considering the two-year jurisdictional limit in the Local Court: R v Doan [2000] NSWCCA 317. 2. In relation to the 51 charges under s 145. 1 of the Criminal Code, for each of those charges I record a conviction. For each of the offences I impose a sentence of imprisonment of 21 months to date from today, 22 June 2018. 3. In relation to the 26 charges under s 137.1(1) of the Criminal Code, for each of those charges I record a conviction. For each of the charges I impose a sentence of imprisonment of seven months to date from today, 22 June 2018. 4. In relation to all the offences, I take into consideration the matters considered under ss 16A and 17A of the Crimes Act, including the steps that Mr Mehajer may now take towards rehabilitation if he accepts the diagnosis of bi-polar disorder. I direct that Mr Mehajer be released from custody, after having served 11 months imprisonment, on 21 May 2019 on condition that he enter into a recognizance in the sum of $500 for a period of three years and accept supervision from Community Corrections NSW and report to the nearest Community Corrections office within seven days of release. 5. I inform Mr Mehajer that if during the life of the recognizance he fails without reasonable excuse to comply with the conditions of the recognizance then he may face revocation of the recognizance and be required to serve the balance of the sentence in full time custody. ADDENDUM Sentence Sequences(1)-(9), (11), (13)-(37), (39)-(48), (50)-(54), (69) – charges under s 145.1 1. For each charge, sentence of 21 months concurrent, to date from 11 June 2018. Sequence (77), (78), (87)-(110) - charges under s 137.1 1. For each charge, sentence of 7 months, concurrent, to date from 22 June 2018. 2. I direct that Mr Mehajer be released from custody after having served 11 months imprisonment on 21 May 2019 on condition that he enter into a recognizance self in the sum of $500 for a period of three years and accept supervision from Community Corrections and to report to the nearest Community Corrections office within seven days of release from custody. Magistrate Schurr Local Court of New South Wales NOTE: Sentence appeal to NSW District Court withdrawn. ********** ANNEXURE Documents provided by the prosecution 1. Sentencing submissions (26 pages) 2. Comparative cases 3. Criminal record 4. Instagram post 5. List of Auburn Council planning decisions in which Mr Mehajer participated (for the purpose showing the effect of his election, not for the purpose of showing any voting to benefit himself). Exhibits tendered on behalf of defendant 1. Report of Dr Neilssen, psychiatrist, dated 13 June 2018 2. Twelve character references: 1. Sanaa Mehajer (sister) 2. President of the Al Minia Charitable Association 3. Mamdouh Sukkarieh, journalist and community leader 4. Abdul Kareem Farache, business acquaintance 5. Tripoli Fayhaa Muslim Association (Hassan Marhaba, General Administrator) 6. Mary Mehajer (sister) 7. Amal Mehajer (mother) 8. Australian Community Association (Joe Rifai, Vice President) (a charity established by Salim Mehajer in 2010) 9. Ali Ramadan (acquaintance) 10. Fayez Hatahe (business acquaintance) 11. Mohamad Mehajer (father) 12. Hussein Allouche (acquaintance, on letterhead of the Australian Lebanese Council) Amendments 25 October 2018 - Added note at end of decision regarding sentence appeal 20 March 2019 - Updated note at end of decision regarding outcome of sentence appeal - withdrawn DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2019