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 1. 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). 2. 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. 3. The delay in proceeding to sentence has been caused by delays in finalising the case involving Salim Mehajer. Charge and plea 1. 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 1. Ms Mehajer did not give evidence in the sentencing proceedings. I take into consideration her conversation reported in the report of Anthony Diment, Consulting Psychologist, and in the pre-sentence report prepared by Community Corrections. 2. There was no Agreed Statement of Facts. On 14 June 2018 Ms Mehajer's legal representatives disputed the relevance of paragraphs [24] and [25] in the prosecutions Statement of Facts. Those paragraphs refer to alleged follow-up postal applications containing false information which were sent in August 2012. I note that these actions were not the subject of charges. I do not take them into consideration. 3. For the purpose of proceeding to sentence I find the following facts established beyond reasonable doubt. 4. During the course of 30 July 2012 until the close of business at the Australian Electoral Commission Ms Mehajer participated in the production and transmission of false information to the Australian Electoral Commission. The subjects of these applications included close family members – herself, her parents and siblings - and friends and even people with whom she had little or no contact. For example, Ms Mehajer knowingly allocated herself and her brother to the false address of "1/275 Park Road Auburn": text message at 2.39. 5. The source of the detailed personal information contained in these applications is not clear. I am satisfied that the pair's capacity to send so many applications so quickly is however evidence of pre-planning and preparation of the data. 6. There was evidence of follow-up by Ms Mehajer after the applications sent between 5pm and 6pm were not processed by the Australian Electoral Commission, but those activities were not the subject of charges. Assessment of the Criminality 1. Ms Mehajer knowingly participated in sending in applications that affected the reliability and integrity of the electoral roll, which is a fundamental document in the parliamentary election system. The seriousness of the offence was increased by the evidence of planning, in the form of accumulating correct information then using it to attempt to change electoral details. 2. I am of the opinion that this matter falls above the mid-level of seriousness of this type of fortunately rare offence. 3. The criminality had consequences for the electoral system generally and her brother benefitted with his subsequent election to Auburn Council. Ms Mehajer did stand as a candidate too, but I accept that that was done unwillingly and under the direction of her brother. Criminal history of offender 1. The offender has no criminal history. Pre-sentence report 1. The pre-sentence report presents a positive image of a young married woman with a stable network of supports and who has the responsibility of caring for three very young children. Ms Mehajer admitted her guilt and expressed remorse for her actions to Community Corrections. She was assessed as having a very low risk of re-offending. The report concludes that there is no need for supervision. That positive report is echoed in the psychologist's report dealt with elsewhere, and I accept its conclusions. Parity 1. I distinguish this offender from Salim Mehajer in that she has pleaded guilty, and that she was acting at his direction to support him. It appears from the text messages that she was a reluctant candidate and had other study and personal commitments she wished to undertake. Personal circumstances 1. The following information is taken from the report by Mr Diment, psychologist. At the time of the offences in 2012 Ms Mehajer was aged 22, single with no dependents and living at home with her parents. She is now married with three children aged 3 and 15 months (twins). Ms Mehajer studied law at University of Western Sydney and University of New England, but deferred on becoming pregnant. She had worked with her brother Salim and her father in the family businesses, and in 2012 was working for a firm of solicitors as a Legal Secretary. Family dynamics 1. I am satisfied that in 2012 the family dynamic was centred around Salim Mehajer. At the time Ms Mehajer was single and living in her parent's home. This was confirmed in the text message evidence, the psychologist's report, the report of Dr Neilsson in Salim Mehajer's case, the letter from the father Mohamad Mehajer, and Salim Mehajer's own evidence. Given Ms Mehajer's position in the family hierarchy, I am satisfied that that lessens her criminal culpability. 2. Ms Mehajer reported to Mr Diment: In the past it was all "Team Salim" but (her father) understands more now. As I said, there was "Team Salim" pressure from my family …I want to own what I did and it can't be all about him anymore. 1. The family dynamic was recognized in the prosecutions' submissions at the end of the hearing of charges against Salim Mehajer. The prosecution wrote the following, based on the SMS evidence: 2. Fatima generally followed the defendant's directions and sought his advice, for example: After the defendant complained that too many of the candidates were enrolled at addresses in Gibbs Street Auburn ("too may gibz") Fatima responded "Well refer to your sms on 30.07.2012. That's what you told me to do" and "I called to confirm and you said yes and yelled at me". "Work is work. Then your work is more work! So really, it's 24/7 work which is not what normal ppl do. I'm not a robot! I do my best to help you and send emails and make phone calls during my lunch breaks at work". When she was too busy to campaign Fatima apologised: "I just reminded dad and I'm reminding you, I sincerely have no time to campaign for elections this year. Sorry". Injury, loss or damage: s 16A(2)(e) 1. 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. The damage flowed on to the democratic electoral system. Plea and contrition: s 16A(2)(f), (g) 1. I take into consideration that Ms Mehajer pleaded guilty to the lesser charges: Crimes Act 1914 (Cth) s 16A(2)(f), 16A(2)(g). A plea of guilty may provide evidence of contrition and remorse, and may also possess a utilitarian value as saving time and cost to the community of a contested trial: Xiao v R [2018] NSWCCA 4; Naizmand v R [2018] NSWCCA 25. 2. I am satisfied from the reports and the four character references that Ms Mehajer expresses sincere regret and remorse for her actions, and is prepared to answer for them. 3. In relation to the utilitarian value of the plea, it is deserving of less than a 25% discount. The plea was late, being entered on the first day of hearing in June 2017. I note the history that an earlier trial date of November 2016 had been vacated due to the health of Ms Mehajer during her pregnancy and that the twins who were subsequently born in early 2017 had medical complications that pre-occupied the mother. 4. The pleas were entered as the result of plea negotiations and 51 charges involving more serious allegations in relation to the same behaviour were withdrawn. There was a strong case against the accused, including the text message evidence. However, Ms Mehajer should not be punished because the trial proceeded against the co-accused Salim Mehajer upon his pleas of not guilty. That was out of her control and some time may have been saved because witnesses were not subjected to two lots of cross-examination. 5. Ms Mehajer is afforded consideration for facilitating the course of justice and in particular for her sincere remorse and contrition. I consider that a 20% discount for the plea is appropriate. General and personal deterrence s 16A(2)(j),(ja) 1. 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. I am satisfied that a custodial sentence is called for. 2. Ms Mehajer's expression of contrition for the offending, and the circumstances in which the offences were committed, do reduce the need for personal deterrence as an element in the sentence. These considerations the form in which the sentence may be served. Character, antecedents, age, means and physical or mental condition – s 16A(2)(m) 1. Ms Mehajer was aged 22 at the time of the offences in July 2012 and is now 28. 2. There was no evidence of mental or physical incapacity at the time of the offending. The reports all present a picture of an intelligent young woman who now has insight into the errors of her actions in 2012. 3. Ms Mehajer now has three dependent children. I address the issue of the impact of a sentence on the family below. 4. The report of Mr Minden provides evidence of the strain upon Ms Mehajer resulting from the delay in finalising the case. At first the case was delayed due to complications in her pregnancy. It is now 12 months since she entered the pleas of guilty, and I accept that she has suffered stress and anxiety while waiting to be sentenced. The effect that any sentence or order under consideration would have on any of the person's family or dependants – s 16A(2)(p) 1. In assessing the appropriate severity of the sentence to be imposed a court must take into account the probable effect that any sentence or order under consideration would have on the person's family or dependents: Crimes Act 1914 (Cth) s 16A(2)(p). 2. This provision has been interpreted as requiring an exceptional hardship before the impact on the family could be given substantial weight: R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 at [97] per Hoeben JA: I am not satisfied on my reading of this material that even if those parts which related to the effect of the respondent's incarceration on his family were taken into account on sentencing, it would significantly affect the outcome. As her Honour concluded, those circumstances do not amount to "exceptional" hardship. Except for the nervous symptoms likely to be experienced by the respondent's (9 year old) son, it is the sort of reaction that one would expect from most close families if a father received a prison sentence. Accordingly, even if as the respondent urged upon the Court, hardship to third parties was taken into account in the sentencing process, it would not operate to significantly mitigate the sentence which should be imposed. 1. In Ms Mehajer's case I am satisfied that exceptional hardship on the family has been made out if a full-time custodial sentence were to be imposed, and that it can be given substantial weight. Ms Mehajer has full-time care of her three children, one aged 3 and twins aged 15 months. She is still breastfeeding the babies. Her husband works full-time and she has limited assistance from the grandparents. The twins were premature and have several medical conditions that require more intense care and medical appointments and may require surgery in the future. 2. I am satisfied that the medical conditions of the babies signifies that a sentence that would take their mother away from them would amount to "exceptional hardship" upon Ms Mehajer's family. I take that into consideration in determining the mode in which the sentence may be served. The prospects of rehabilitation - s 16A(2)(n) 1. The prospects for Ms Mehajer's rehabilitation are excellent, given her conduct over the past six years and her remorse and acknowledgement of the wrongdoing she committed. Prosecution submissions 1. The prosecution repeated the submissions made in relation to Mr Mehajer's hearing that Salim Mehajer had a more dominant and active role in the offending than his sister. The prosecution was also alert not to breach the De Simoni principle (R v Di Simoni (1981) 147 CLR 383), that is, not to punish a person for a more serious offence than that to which they have pleaded guilty. 2. I accept that Fatima Mehajer had a continuing role leading up to the Council elections, but I also note the text message evidence that she was only being a candidate because of pressure from Salim and from her family attitude of "Team Salim". 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. I note that in the case of Ehrmann a co-offender who pleaded early at committal was sentenced to three months imprisonment, to be released forthwith upon entering into a recognizance. The co-offender was also distinguished on the basis that he was charged with a smaller number of the same offences as Ms Ehrmann, was not himself running for public office and had offered to assist the authorities. Ms Ehrmann and the co-accused had many fine qualities in common – including no prior record and voluntary work in the community. So in that case, Ms Ehrmann and the co-offender were facing the same maximum penalty, which is not the case here. 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 a 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 sentence I am going to impose must reflect the severity of the offending. 3. I am satisfied that a period of imprisonment of two months is appropriate, given the pleas, remorse and contrition, the impact on the family, the maximum penalty and the manner in which Ms Mehajer was directed to undertake the work by her brother, with whom she had a very close bond. On each charge I impose a sentence of 2 months to date from 22 June 2018. 4. I am also satisfied, taking the above matters into consideration, that it is appropriate to order the immediate release of Ms Mehajer on the condition that she enter into a recognizance self in the sum of $500 for a period of 9 months. I am satisfied from the pre-sentence report that there is no need for supervision. 5. I inform Ms Mehajer that if during the life of the recognizance she fails without reasonable excuse to comply with the conditions of the recognizance then she may face revocation of the recognizance and be required to serve to sentence in full-time custody. Magistrate B Schurr Downing Centre Local Court 22 June 2018 CHRONOLOGY 30.6.12 Applications sent to AEC 9.12.15 CANs issued 2.2.16 1st mention 10.5.16 2nd mention Adjourn for hearing date 7.6.16 3rd mention Mobile phone material yet to be served 19.7.16 4th mention Defence elected to have charges dealt with indictably. Date for s 91 submissions set. 9.8.16 5th mention Defence withdrew election. Hearing date set: 28.11.16, 5.12.16 22.11.16 6th mention Hearing date vacated – defendant medical unavailability for hearing (pregnancy) (Mag Viney) 2.12.16 7th mention Pre-trial date set: 5-6.4.17 Hearing dates 13-23.6.17, 3-14.7.17 5.4.17 Submissions on preliminary evidence issues Adjourned for decision: 8.5.17 8.5.17 Decision published Adjourned for hearing commencing 15.6.17 Adjourned for hearing 15.6.17 Guilty plea – seq 77, 78, 87-161 Adjourned until completion of Salim Mehajer trial CDPP withdrew seq 1-9, 11, 13-37, 39-48, 50-54, 69 11.4.18 Adjourned for sentence following conviction of Salim Mehajer Pre-sentence report ordered. Draft Statement of Facts to be sent to Bankstown CC. Any material to be exchanged and filed with the court by 30.5.18. 22.6.18 Sentencing proceedings Adjourned to be heard with sentence of Salim Mehajer on 22.6.18 ********** 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: 19 November 2018