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District Court 9 May 2024

R v Mehajer

[2024] NSWDC 240

Fraud & dishonestyDomestic & family violence
CRIMINAL LAW SENTENCE AFTER TRIAL DOMESTIC VIOLENCE FALSE DOCUMENTS

Citation: R v Mehajer [2024] NSWDC 240
Court: District Court of NSW
Date: 9 May 2024
Judge: Bennett SC DCJ

Background

The offender was convicted following two separate jury trials. The first, described as the domestic violence trial, concerned a sequence of offences committed between April 2018 and October 2020 against his then partner. The second, the fraud trial, concerned the creation and use of false documents during a two-week period in March 2020.

The sentencing proceedings were protracted. The offender was self-represented in the domestic violence trial and represented by counsel in the fraud trial. During the sentencing phase, he had separate legal representatives for each matter, and the proceedings were delayed by applications for psychiatric assessment, withdrawal of all legal representatives, and a series of notices of motion seeking the judge's recusal.

At the time of sentencing, the offender was already serving a sentence of imprisonment imposed in April 2021 for separate offences. The sentencing judge was required to fix an aggregate sentence that accounted for all offences across both trials, together with a related matter to which the offender had pleaded guilty.

  • What facts, bearing on the objective seriousness of the offences and the offender's subjective circumstances, had been established to the requisite standard of proof for sentencing purposes?
  • How should the sentencing judge deal with the various procedural applications, including recusal motions and late-tendered material, made during the sentencing phase?
  • What aggregate sentence was appropriate across the domestic violence and fraud offences, including the commencement date of the non-parole period?

Decision

Bennett SC DCJ applied the standard sentencing framework, noting that facts relevant to objective seriousness must be proved beyond reasonable doubt, while matters advanced in mitigation need only be established on the balance of probabilities. This reflected the established authority from Cheung v Regina, R v Olbrich, and Savvas v The Queen.

The judge declined to act on the recusal notices of motion after senior counsel announced, on 17 April 2024, that the offender would not press those applications. The first notice of motion, which sought intervention from the Chief Judge, was also found to be procedurally incompetent. The affidavits and other documents filed in support of those applications were not relied upon as substantive evidence, though the judge noted they demonstrated the offender's competence and capacity.

Last-minute material tendered by the offender on the morning of sentencing, including assertions about the conditions of his custody as a restricted association prisoner, was admitted by consent. However, the judge noted a tension between those assertions and the offender's custodial record of offences, and invited submissions from both parties on that point before proceeding.

Having considered all the material, the judge imposed an aggregate sentence. The non-parole period was fixed with a commencement date of 19 January 2022, reflecting time the offender had already spent in custody. Individual indicative sentences were also stated for each count, as required when an aggregate sentence is imposed.

Orders Made

  • The offender was convicted of each offence for which he was found guilty at trial, and the related offence to which he pleaded guilty, pursuant to s 166 of the Criminal Procedure Act 1986.
  • An aggregate sentence of imprisonment was imposed, comprising:
  • Non-parole period: 3 years and 6 months, commencing 19 January 2022 and expiring 18 July 2025
  • Head sentence: 7 years and 9 months, expiring 18 October 2029
  • The offender is eligible for release to parole on 18 July 2025.
  • Indicative individual sentences (had separate sentences been imposed) were as follows:
  • Fraud Count 1: 2 years
  • Fraud Count 2: 2 years
  • Fraud Count 3: 2 years
  • Fraud Count 4: 2 years
  • Domestic violence (assault) Count 1: 1 year 2 months
  • Domestic violence Count 2: 1 year 4 months
  • Domestic violence Count 3: 1 year 2 months
  • Domestic violence Count 4: 2 years 3 months
  • Domestic violence Count 5: 2 years
  • Domestic violence Count 7: 5 years
  • Related guilty plea offence: 9 months
  • An aggregate sentence for the fraud matters alone would have been 2 years and 9 months.

Key Takeaways

  • Where an offender is sentenced across multiple trials, an aggregate sentence may be imposed covering all matters, with the sentencing court required to identify the individual sentence that would have been imposed for each offence had separate sentences been ordered.
  • Facts going to objective seriousness must be established beyond reasonable doubt; facts advanced in mitigation need only meet the civil standard of balance of probabilities, consistent with the High Court authorities applied in this decision.
  • A notice of motion seeking reallocation of a matter by the Chief Judge, rather than an application made to the presiding judge with a right of appeal, is procedurally incompetent.
  • Late material tendered on the day of sentence may be admitted by consent, but a judge may still scrutinise its consistency with other evidence on the record, including the offender's custodial history.
  • The offender's decision not to give evidence at various stages of the proceedings did not attract any adverse finding or comment: the sentencing judge explicitly recorded that those were paths the offender was entitled to take.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases
- Callaghan v R [2006] NSWCCA 58
- Cheung v Regina (2001) 209 CLR 1
- Mehajer v R [2023] NSWCCA 101
- Muldrock v R (2011) 244 CLR 120
- R v Bollen (1998) 99 A Crim R 510
- R v Borkowski [2009] NSWCCA 102
- R v Engert (1995) 85 A Crim R 67
- R v Mehajer [2023] NSWCCA 98
- R v Mehajer (No 2) [2023] NSWDC 151
- R v Mehajer (No 3) [2023] NSWDC 197
- R v Olbrich (1999) 199 CLR 162
- R v Previtera (1997) 94 A Crim R 76
- Regina v Dang [1999] NSWCCA 42
- Regina v Isaacs (1997) 41 NSWLR 379
- Savvas v The Queen (1995) 183 CLR 1