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Local Court 22 June 2018

R v Fatima Mehajer

[2018] NSWLC 12

Fraud & dishonesty
CRIMINAL SENTENCE COMMONWEALTH OFFENCES ABOVE MID RANGE OF SERIOUSNESS RELIABILITY OF ELECTORAL ROLL AFFECTED

Citation: R v Fatima Mehajer [2018] NSWLC 12
Court: Local Court of NSW (Downing Centre)
Date: 22 June 2018
Judge(s): Magistrate B Schurr

Background

The offender pleaded guilty to 77 charges of providing false and misleading information to a Commonwealth agency, contrary to section 137.1(1) of the Criminal Code (Cth). The offences arose from a single day's activity in July 2012, when she participated in sending applications to the Australian Electoral Commission falsely amending the enrolled addresses of 77 people, including herself, family members, friends, and acquaintances.

The offender acted in a joint criminal enterprise with her brother, who stood as a candidate in the September 2012 Auburn Council elections and was subsequently elected. The offender also stood as a candidate but was unsuccessful. The magistrate accepted that she had stood as a candidate unwillingly and at her brother's direction.

A co-set of 51 more serious charges under section 145.1(1) of the Criminal Code (carrying a maximum of ten years' imprisonment) was withdrawn and dismissed following her guilty plea on the first day of hearing in June 2017. The maximum penalty for the charges to which she pleaded guilty was 12 months' imprisonment per charge.

  • Where the offending fell on the spectrum of seriousness for this type of offence, and what sentencing principles applied to Commonwealth offences under the Crimes Act 1914 (Cth)
  • What weight to assign the guilty plea, including its utilitarian value given its lateness and the circumstances of the co-accused's separate trial
  • The relevance of the offender's family dynamics and her brother's direction in assessing her personal culpability
  • Whether a custodial sentence was appropriate, and if so, whether exceptional hardship to the offender's family warranted immediate release on a recognizance

Decision

Magistrate Schurr found the offending fell above the mid-range of seriousness for this type of offence. The magistrate identified the planning involved, the scale of the fraud (77 false applications), and the direct damage to the integrity of the electoral roll as aggravating features. The offending struck at a fundamental element of the democratic process, and the offender's brother materially benefited through his subsequent election.

Despite this, the magistrate accepted several mitigating factors. The offender had no criminal history, was assessed as presenting a very low risk of reoffending, and demonstrated sincere remorse and contrition. The magistrate was satisfied that the prevailing family dynamic at the time, described as centred around her brother, reduced the offender's moral culpability. She had acted substantially under her brother's direction and was a reluctant participant.

A 20 percent discount was applied to reflect the guilty plea. Although the plea was entered late, the magistrate noted that an earlier hearing date had been vacated due to the offender's pregnancy, and that medical complications affecting her newborn twins had further occupied her in early 2017. The plea also carried some utilitarian value in avoiding a second set of cross-examinations in what was ultimately a joint matter. A full 25 percent discount was not applied given the overall lateness of the plea and the strength of the prosecution case.

The magistrate concluded that a custodial sentence of two months on each charge was appropriate but that immediate release on a recognizance was also warranted. The offender had three very young children, including twins with medical complications. The magistrate was satisfied this constituted exceptional hardship to the family sufficient to justify ordering release, with no supervision requirement given the low reoffending risk.

Orders Made

  • Sentence of two months' imprisonment imposed on each of the 77 charges, commencing 22 June 2018
  • The offender ordered to be immediately released on condition she enter into a recognizance (self in the sum of $500) for a period of nine months
  • No supervision requirement attached to the recognizance
  • The offender was warned that failure to comply with the conditions of the recognizance without reasonable excuse could result in revocation and service of the full sentence in full-time custody

Key Takeaways

  • Offending that corrupts the integrity of the electoral roll will be treated seriously, even where the offender played a supporting rather than leading role in the criminal enterprise; the magistrate placed this conduct above the mid-range of seriousness for the offence type.
  • A guilty plea entered on the first day of hearing attracted only a 20 percent discount (rather than the usual maximum of 25 percent), reflecting its lateness and the strength of the prosecution case, though mitigating circumstances around the timing were acknowledged.
  • Under section 16A of the Crimes Act 1914 (Cth), the probable effect of a custodial sentence on the offender's family is a relevant consideration; here, the health conditions of three very young children, including medically complicated twins, supported a finding of exceptional hardship.
  • The court drew a clear parity distinction between co-offenders based on role, culpability, and plea, recognising that acting under a dominant family member's direction can reduce an offender's moral responsibility even where the offending itself is serious.
  • Sincere remorse, a very low assessed risk of reoffending, and a positive pre-sentence report collectively supported the decision to impose a recognizance with no supervision, despite the custodial nature of the underlying sentence.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth) s 137.1(1) (providing false or misleading information to a Commonwealth entity)
- Criminal Code (Cth) s 145.1(1) (dealing with electoral matters dishonestly)
- Crimes Act 1914 (Cth) s 16A (sentencing factors for Commonwealth offences)

Cases
- Xiao v R [2018] NSWCCA 4
- 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)