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Local Court 22 June 2018

R v Salim Mehajer

[2018] NSWLC 11

Fraud & dishonesty
CRIMINAL SENTENCE COMMONWEALTH OFFENCES ELECTORAL ROLL CONSEQUENCES OF OFFENDING TOP OF SCALE OF CRIMINALITY

Citation: R v Salim Mehajer [2018] NSWLC 11
Court: Local Court of New South Wales
Date: 22 June 2018
Judge(s): Magistrate Schurr

Background

The defendant was a candidate in the September 2012 Auburn Council elections. Following a contested hearing, he was convicted on 77 charges arising from a joint criminal enterprise with his sister on 30 July 2012. Over an eight-hour period on that day, the two submitted 77 false electronic applications to the Australian Electoral Commission, falsely asserting that named individuals resided within the Auburn Council electorate in order to place them on the electoral roll at fictitious addresses.

The applications were sent from two computers connected to the Mehajer family. Vigilant AEC staff grew suspicious and halted processing late in the afternoon, but 18 applications had already been accepted before the freeze was imposed. Those 18 ineligible persons were registered at false addresses, and votes were subsequently cast in their names in the 2012 Council elections by persons who were never identified or charged.

The defendant was ultimately elected to Auburn Council from Ward 1. While the 18 falsely registered votes were not found to have been decisive to his election, the court found that he obtained a tangible, unquantifiable benefit from assembling two candidate groups using falsely enrolled candidates, thereby attracting "above-the-line" votes.

  • What sentence was appropriate for 51 offences of using a false document to mislead a Commonwealth agency (Criminal Code Act 1995 (Cth) s 145.1(1)) and 26 offences of providing false or misleading information to a Commonwealth agency (s 137.1)?
  • Where did the offending sit on the scale of criminality, and what weight should be given to the consequences of the fraud for the electoral process?
  • What relevance, if any, did the defendant's subsequent media notoriety and extra-curial punishment have to the sentencing exercise?
  • How should the court treat a partial admission of guilt, limited contrition, and a recently diagnosed mental illness of uncertain onset?
  • Was a full-time custodial sentence appropriate, or could a non-custodial alternative be justified under ss 16A and 17A of the Crimes Act 1914 (Cth)?

Decision

The magistrate placed the offending at the top of the scale of seriousness for this type of offence. The conduct was planned, involved a large volume of false applications submitted in a concentrated period, targeted the integrity of a democratic electoral process, and resulted in actual harm: 18 ineligible persons were enrolled and votes were cast in their names. The court was satisfied that the community suffered real loss through the corruption of the Auburn Council electoral roll and the casting of votes by unknown persons on behalf of ineligible enrollees.

On contrition, the defendant gave evidence at the sentencing proceedings and offered explanations for the source of some of the personal information used in the applications. The court characterised his evidence as a partial admission accompanied by an apology for some offences only. The court found his contrition limited and gave it correspondingly limited weight.

The court accepted that the defendant had been diagnosed with bipolar disorder. However, the psychiatric evidence did not establish that the disorder had developed or was operative at the time of the offending in 2012, and the defendant had not yet commenced treatment. These factors reduced the mitigating weight available from the diagnosis.

The court acknowledged that the defendant had experienced significant extra-curial punishment through media notoriety and public attention. This was taken into account as a mitigating factor, though it did not alter the court's conclusion that only a full-time custodial sentence was appropriate given the nature and consequences of the offending.

Orders Made

  • 51 charges under s 145.1 (Criminal Code): 21 months imprisonment each, concurrent, commencing 11 June 2018.
  • 26 charges under s 137.1 (Criminal Code): 7 months imprisonment each, concurrent, commencing 22 June 2018.
  • The defendant to be released from custody after serving 11 months (on 21 May 2019) on condition that he enter into a recognizance of $500 for a period of three years.
  • Conditions of release include supervision by Community Corrections NSW and reporting to the nearest Community Corrections office within seven days of release.
  • The defendant was informed that failure to comply with recognizance conditions without reasonable excuse could result in revocation and service of the full balance in custody.

Note: A sentence appeal to the NSW District Court was subsequently withdrawn.

Key Takeaways

  • Offending that targets the integrity of a democratic electoral process, results in actual enrolment of ineligible voters, and produces votes cast by unknown persons will be treated as sitting at the top of the scale of seriousness for Commonwealth false information offences.
  • Where a defendant offers only a partial admission and limits apology to certain charges, the mitigating value of contrition is reduced proportionately.
  • A diagnosis of mental illness carries limited mitigating weight where the evidence does not establish that the illness was operative at the time of the offending and where treatment has not yet commenced.
  • Extra-curial punishment through sustained media notoriety is a recognised mitigating factor in NSW sentencing, but it does not displace a full-time custodial sentence where the objective gravity of the offending warrants one.
  • The benefit derived from electoral fraud need not be precisely quantifiable for the court to treat it as an aggravating feature; a finding that an unquantifiable advantage was obtained is sufficient.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth) ss 16A, 17A
- Criminal Code Act 1995 (Cth) ss 137.1, 145.1(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 47(3)

Cases
- 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)