Citation: R v Mehajer [2013] NSWDC 266
Court: District Court of New South Wales
Date: 18 December 2013
Judge: Berman SC DCJ
Background
A property developer sought to refinance a Suncorp Bank loan of more than $3 million in late 2008. His financial position made it unlikely that another lender would approve such a loan on the true facts, so he and an associate used two false documents as part of an application to the National Australia Bank. One document falsely represented his involvement in property developments; the other painted his financial position as considerably stronger than it was.
In addition to the fraudulent documentation, the developer paid $2,000 in cash to a National Australia Bank officer who was processing the loan application. The developer claimed at trial that the payment was simply to reward the officer for working overtime, even asserting he had said "this is not a bribe" when handing over the money. The jury rejected that account and found him guilty of corruptly giving a benefit to a bank employee.
No loan was ever approved, meaning the bank suffered no financial loss. The developer was convicted by a jury on both charges: conspiracy to cheat and defraud the National Australia Bank of more than $3 million, and corruptly giving a benefit contrary to section 249B(2) of the Crimes Act.
Legal Issues
- What sentence was appropriate for each of the two offences, having regard to objective seriousness, personal circumstances, co-offender comparisons, and delay?
- On what factual basis should the offender be sentenced for the bribery charge, given the jury direction that a guilty verdict was open even on the offender's own version of events?
- Whether the two sentences should run concurrently or involve some degree of accumulation, given that both offences arose from the same loan application.
- Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the balance of the term.
Decision
The judge resolved the factual dispute on the bribery charge by rejecting the offender's evidence and accepting the Crown case. Several circumstances supported this conclusion: the payment was made in private (unnecessary if it were a legitimate overtime gift); the money was returned when the loan was refused, without any objection from the offender; intercepted phone calls indicated the associate understood the payment to be a bribe; and the offender could offer no basis for how he arrived at the $2,000 figure if overtime was truly the purpose.
On objective seriousness, the judge acknowledged a mitigating feature of the conspiracy charge: the offender always intended to repay the loan, and no financial loss was ever suffered by the bank. However, both offences were characterised as serious dishonesty. The bribery was treated as an independent and discrete form of corruption from the document fraud, which led the judge to reject the submission that the two sentences should be served entirely concurrently.
The offender's personal circumstances attracted significant weight in mitigation. He was 57 years old with no prior criminal history, a strong record of community contribution, and a history of encouraging his children's education. The delay between offence and sentencing, for which the offender bore no responsibility, was also taken into account in his favour. The judge also noted the likely hardship of imprisonment for a man of his age and background, including language difficulties.
Comparing the offender's position with those of two co-offenders, the judge found that the associate who created the false documents was the more enthusiastic participant in that element of the fraud, but that the decision to bribe the bank officer appeared to be the offender's alone. Special circumstances were found on account of the offender's age and the fact that he was entering custody for the first time, justifying a longer parole period relative to the non-parole period.
Orders Made
- Count 2 (corruptly giving a benefit): fixed term of imprisonment of 18 months, commencing 18 December 2013.
- Count 1 (conspiracy to cheat and defraud): non-parole period of 18 months, with a head sentence of 3 years, commencing 18 June 2014.
- Overall sentence: non-parole period of 2 years, a parole eligibility period of 1.5 years, and a head sentence of 3.5 years.
- Earliest release to parole: 17 December 2015.
Key Takeaways
- The District Court found that the absence of any financial loss to the bank, and the offender's genuine intention to repay the loan, reduced but did not eliminate the objective seriousness of the conspiracy to defraud charge.
- Where a jury's verdict on a particular charge may have been reached on more than one factual basis, the sentencing judge must independently determine the facts for sentencing purposes, applying the standard of beyond reasonable doubt.
- Partial accumulation of sentences was ordered because the two offences, while arising from the same transaction, represented separate and discrete forms of criminality: document fraud directed at the institution, and personal bribery of an individual officer.
- Strong subjective circumstances, including a lifetime of good character, significant community contributions, first-time custody, advanced age, and delay attributable to the court, all operated in mitigation but did not displace the need for full-time imprisonment.
- A finding of special circumstances permitted a reduction in the non-parole period relative to the balance of the term, based on the offender's age and his status as a first-time custodial prisoner.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), section 249B(2) (corruptly giving a benefit to an agent)
Cases:
No cases were cited in the provided text.