R v Mehajer

District Court of NSW|2024-02-14|Before: Health J

Solicitors: Office of the Director of Public Prosecutions O'Brien Criminal and Civil Solicitors File Number(s): 2020/369490; 2021/16899; 2020/139506; 2021/29321

Introduction

Salim Mehajer is before the Court for the determination of sentences arising from findings of guilty suffered from two trials. I shall deal with each trial in turn and announce my sentences for each offence and the aggregate sentence I propose when I have done so. I shall first deal with the issues common to both proceedings.
The first trial (the domestic violence trial) determined a sequence of offences between 1 April 2018 and 4 October 2020, the subject of Court files 2020/369490 and 2021/16899. The offences were in the nature of domestic violence offences against the offender's then partner.
The second trial (the fraud trial) determined a sequence of offences between 13 March 2020 and 27 March 2020, the subject of Court files 2020/139506 and 2021/29321. The offences were in respect of the creation of false documents and their use.

The Offender's Evidence

The offender did not give evidence in the domestic violence trial but called evidence. He was self-represented in those proceedings.
In the fraud trial he was represented by counsel with instructing solicitors and gave evidence denying his guilt.
After the verdicts of guilty in the fraud trial, when both sets of proceedings were before me in the sentencing phase, the offender had separate counsel and solicitors representing him in each matter. Thus, when the sentence proceedings were underway, there were two sets of submissions presented with material personal to the offender.
There was delay for the final hearing of the evidence and submissions on sentence because, from comments the offender said were made to him by a nurse from Justice Health he wanted to be assessed for agoraphobia. The matter was listed for sentence on 8 December 2023. Beforehand, a notice of motion was filed with the Court asking to vacate the hearing from that date to mid-April to allow a further psychiatric assessment. An affidavit in support from a solicitor asserted that he had instructions to engage a psychiatrist but efforts made with 30 psychiatrists were not fruitful until Dr Andrew Ellis agreed to a consultation on 15 March 2024.
I granted the adjournment but set the matter down for final hearing on 23 February 2024 and concurrently ordered an assessment by Justice Health, which in due course was provided by Dr Gordon Elliot but not by the adjourned date. When the matter resumed on 17 April 2024, the report from Dr Elliot was available and tendered by the Crown by consent. There was no report from Dr Ellis tendered.
A further significant development on 17 April 2024 was the announcement by the dual representatives that instructions were withdrawn and leave was sought for all solicitors and counsel to withdraw from the proceedings. I gave leave whereupon senior counsel announced that he was now briefed in the matter. In the meantime, the offender once again indicated his wish to have me recused from the proceedings. In steps he took without the assistance of his former representatives, he filed with the Court two notices of motion dated respectively 25 March 2024 and 26 March 2024 with supporting affidavits of the same dates and a release application.
The documents allude to his unrepresented status and request the response to go to his "authorised third party." The first notice of motion sought an order in the following terms: "That the Chief Judge of this honourable Court allocates the above matter/s to any judicial officer other than the sentencing judge, Bennett, for the reason that in my view at least, my application for appeals bail consists of ground of appeal which would impact the sentencing judges impartiality in determining my applications (sic). Those grounds of appeal relate to the conduct of the sentencing judge during the course of the trial. The ground of appeal are (sic) briefly summarised below."
The first ground of appeal was that the trial miscarried because I failed to stay or adjourn the trial until counsel could be arranged, thereby denying him the right to a fair trial and real chance of acquittal. This appears to refer to my decision published at R v Mehajer [2023] NSWDC 98, after which the offender unsuccessfully appealed to the Court of Criminal Appeal: Mehajer v R [2023] NSWCCA 101.
The second ground of appeal was the assertion that I failed to adjourn the trial until his mobile phones was (sic) forensically downloaded. Additionally, he complained that I was on leave, that the application should be dealt with expeditiously and without further delay, that he was convicted in May and June 2023 respectively, and further delay would deprive him of the full benefit of the appeal.
The offender's affidavit of 15 pages and 64 paragraphs provided descriptions of the proceedings, what he asserted was relevant background of his proposed appeals, of anticipated further evidence, of delay in the proceedings, of opportunities for rehabilitation, of his mental health, of the opportunities for reintegration into the community, and of the delay in the sentence proceedings.
The second notice of motion sought that I recuse myself from the proceedings. His affidavit supporting this was not upon the basis of actual bias but that a fair-minded member of the community might perceive bias.
No action was taken in response to the application for relief from the Chief Judge, for it was incompetent. The relief in the second notice of motion might have been sought from me as presiding judge from which the offender could appeal if my decision were averse.
On 17 April 2024, senior counsel announced that the offender would not move on the notices of motion or read the affidavits in support. As evidence relevant to the determination of sentence, I have put them aside other than to demonstrate the competence and capacity that the offender revealed in preparation of the documents.
The offender did not give evidence in the sentence proceedings other than on 17 April 2024 when he adopted a form of affidavit marked exhibit two. He had not had the opportunity to swear or affirm the document before the hearing on that day and appeared via AVL. The Crown did not cross-examine him.
His decisions to delay the proceedings to have all aspects of his circumstances the subject of assessment and evidence, if available, and his decisions not to give evidence on those occasions he exercised that right, were paths he was entitled to take in the proceedings and he does not suffer any adverse comment or finding because he did so.
The delivery of judgment and imposition of sentences was set for 9 May 2024. On 8 May 2024, the Registry sent to me an email from the offender attached to which was his hand-written request to reopen the evidential phase of the proceedings so that he could tender a letter of apology which he represented would be sent on 8 May 2024. This did not arrive at the promised time.
On 9 May 2024, shortly before Court, the registry received further material which I admitted by consent as exhibit 1A. This came from the offender, independent of his legal team and though they acquiesced in the offender's action, it was not intended to address on his behalf upon other than a portion of that material, which, as with the Court, they had received during the morning.
The material included representations that he was kept in lockdown as a restricted association prisoner and for 600 days had been held for 23 hours each day in his cell. This did not sit comfortably with his custodial record of offences to which I refer elsewhere. I adjourned to allow the parties to consider the material and for Mr Rowe, his solicitor, to communicate with the offender from the courtroom using the AVL system. I asked that all other parties remove themselves from the courtroom to allow privacy.
When I resumed, discussion followed upon the comment I made regarding the apparent anomaly between the custodial record and the assertions in the document concerning his restriction in custody. Both the Crown and Mr Rowe for the offender made submissions regarding this. I shall make further reference to those when I come to deal with that aspect of the offender's subjective case.

Pre-sentence Custody

Throughout both trials, the offender was in custody serving a sentence of imprisonment imposed by Zahra SC DCJ on 23 April 2021 for two offences of doing an act with the intention to pervert the course of justice contrary to s 319 Crimes Act 1900 and one offence of making a false statement on oath contrary to s 327(1), Crimes Act 1900. His Honour imposed an aggregate sentence of three years, six months, with a non-parole period of two years, three months from 19 October 2020, the non-parole period to expire on 18 January 2023, the head sentence to expire of 18 April 2024. The offender was refused parole after the expiration of the non-parole period.
According to the custodial history from the Department of Corrective Services, he was admitted into custody on 27 November 2020 and thus the backdated commencement of the sentence must have been to bring to account pre-sentence custody to which the offender was subject prior to that date.
This earlier sentence must be brought to account when determining the commencement date of the aggregate sentence I intend to impose pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. This provides in subsection (1): "A Court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any two or more of those offences instead of imposing a separate of sentence for imprisonment for each."
This section has other requirements the Court must meet in the exercise of determining an aggregate sentence. I must consider what is appropriate accumulation and concurrence between the sentences selected for the individual offences with which I'm concerned and that imposed by Zahra SC DCJ, reflecting with reference to each case the totality of the misconduct of which the offender was found guilty and upon my finding in respect of the related offence to which the offender pleaded guilty determined here pursuant to s 166, Criminal Procedure Act 1986.
The commencement of the sentence must be with reference to the sentence imposed by Zahra SC DCJ to ensure to the extent possible that the offender is not punished beyond what is appropriate for the array of misbehaviour upon which engaged throughout the period. It will be necessary to specify the commencement date for the sentence to be imposed. The Court has discretion as to when the sentence will commence bringing into account the custody for the other misconduct to ensure that punishment he now suffers is no greater than the totality of his offending requires, and to ensure that the appropriate non-parole period specified gives effect to special circumstances.
Also relevant to the discretion is the probability that but for these findings of guilt, the offender would not be denied the opportunity to seek an order for parole upon the expiration of the non-parole period specified by Zahra SC DCJ, which concluded on 18 January 2023. The Court's discretion in this regard, well stated in the principles discussed by Simpson J in Callaghan v R [2006] NSWCCA 58, are consistently applied in the determination of sentences.
I shall order the commencement of the aggregate sentence I intend to impose today or tomorrow, depending upon when this judgment has concluded, on 27 January 2022.

DURING THE READING OF THE JUDGEMENT UPON FURTHER CONSIDERATION I CORRECTED THIS DATE TO 19 JANUARY 2022.

The Domestic Violence Trials, Files 2023/369490 and 2021/16899

On 27 March 2023, the offender was presented upon an indictment that alleged seven offences. As I noted, he appeared unrepresented. He asked the Court to stay the proceedings. I refused the application; R v Mehajer [2023] NSWCCA 98.
He appealed unsuccessfully to the Court of Criminal Appeal; Mehajer v R [2023] NSWCCA 101. I suspended the trial pending determination of the relief he sought there until Tuesday 18 April 2023 when the trial resumed.
The offender represented himself in this trial with assistance from an appointed questionnaire for cross examination of the victim. The jury retired to consider their verdicts on Tuesday, 9 May 2023. On Wednesday 10 May 2023 the jury returned with verdicts of guilty to all counts except for Count Six, the alternative to Count Five, which did not require their decision after the verdict of guilty for that count. The offences charged were: 1. Count One. Between 1 April 2018 and 30 April 2018 at Lidcombe in the state of New South Wales did assault MB: s 61 Crimes Act 1900. 2. Count Two. Between 1 April 2018 and 30 April 2018 at Lidcombe in the state of New South Wales did assault MB: s 61 Crimes Act 1900. 3. Count Three. Between 30 April 2018 and 5 May 2018 at Lidcombe in the state of New South Wales did assault MB: s 61 Crimes Act 1900. 4. Count Four. Between 30 April 2018 and 5 May 2018 at Lidcombe in the state of New South Wales did intimidate MB with the intention of causing the said MB to fear physical or mental harm: s 13 Crimes (Domestic and Personal Violence) Act 2007. 5. Count Five on 4 October 2020 at Lidcombe in the state of New South Wales, did assault MB thereby occasioning actual bodily harm to her: s 59(1) Crimes Act 1900. 6. Count Six in the alternative to Count Five. On 4 October 2020 at Lidcombe in the state of New South Wales did assault MB: s 61 Crimes Act 1900. 7. Count Seven. On 4 October 2020 at Lidcombe in the state of New South Wales did intentionally suffocate MB so as to render her unconscious, insensible or incapable of resistance and was reckless as to causing that result: s 37(1) Crimes Act 1900.

Available Penalties

The maximum penalty for an offence contrary to s 61 Crimes Act 1900, is imprisonment for two years.
The maximum penalty for an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, is imprisonment for five years and a fine represented by 50 penalty units.
The maximum penalty for an offence contrary to s 59(1) Crimes Act 1900, is imprisonment for five years.
The maximum penalty for an offence contrary to s 37(1) of Crimes Act 1900, is imprisonment for 10 years.
There is no standard non-parole period specified for any of these offences for the purposes of Part (4) Division (1A) Crimes (Sentencing Procedure) Act 1999.
The maximum penalty for the related offence before the Court pursuant to s 166 Criminal Procedure Act 1986, discussed below, of knowingly contravening a prohibition specified in an order contrary to s 14(1) Crimes Domestic and Personal Violence Act 2007, is imprisonment for two years and/or a fine represented by 50 penalty units.

The related offence

Pursuant to s 166 Criminal Procedure Act 1986, an offence contrary to s 14(1) Crimes (Domestic and Personal Violence) Act 2007, is before the Court as a related offence within the meaning of that term defined in s 165 Criminal Procedure Act. It appears as sequence H77477932/1. It is charged in the following terms: "Between 9pm on 21/12/2020 at 3pm on 28/12/2020 at Silverwater in the state of New South Wales, Salim Mehajer did knowingly contravene a prohibition specified in an order."
Initially, there were in all five related offences before the Court. The offender sought to have them remitted to the Local Court for determination. I refused that application: R v Mehajer (No 2) [2023] NSWDC 151. Afterwards, the Crown and the offender embarked upon discussions which led to the offender pleading guilty to this charge with indication by the Crown that it would withdraw the other related offences.
The offences upon which the offender was tried were during the period between 1 April 2018 and 4 October 2020. The victim of those offences was the person in need of protection for whom the orders were made after the commission of those offences allegedly breached in the related offence now prosecuted.
The sentence to be selected for this offence is subject to a discount for the utility provided by the plea of guilty. This offence would not be prosecuted until the conclusion of the trial and although the accused sought to avoid the determination of this and the other related offences in the Court, within a short compass he pleaded guilty to the first of the offences upon which the Crown proceeded, with the Crown's indication that the others would be withdrawn.
It is relevant that the offender indicated an attitude consistent with this outcome in his written submissions for the remission of the charges to the Local Court. There he advanced the following points which, though in terms inconsistent, implied at least that not all of the related offences would be contested. He said: 1. He would be defending the charges and it would be in the interests of justice that he and the complainant give evidence to be assessed by another judicial officer. 2. In the event that the summary matters returned to the Local Court delay was not irrelevant and insignificant. It is not clear to me that he expressed himself accurately in this sense. In his document he perhaps intended that delay was irrelevant and insignificant with a lack of the addition of the word "not." He continued that he had already written to the officer‑in‑charge and indicated his consent to an apprehended violence order subject to facts. 3. Upon remission of the charges to the Local Court the issues could be simplified with a plea of guilty with an explanation or agreed facts. This he suggested without prejudice and subject to the terms of agreed facts and with a further qualification in keeping with the letter he wrote to the first officer‑in‑charge that he maintains, despite any plea of guilty, his belief that the apprehended domestic violence order would be in effect only once the matters returned to Court. 4. He invited the Crown to reconsider the number of these charges which should be reduced to three rather than five with the accompanying representation that he did not contact the complainant on two of the occasions as alleged. He did not reach her voicemail. She previously informed police that he had never made direct contact with her via his telephone system including reaching her voicemail and once orders were in place his telephone system would not allow phone calls to go through that were linked to the complainant since the phone number is disabled by default.
Accepting these representations, as the Crown has, the offender was intending to contest aspects of these allegations but not all, in which case the principles for which R v Borkowski [2009] NSWCCA 102 are enlivened. Thus, applying the relevant nine of the twelve points from the judgment of Howie J omitting the citations provided by his Honour. 1. The discount for the utilitarian value of the plea is determined largely by the timing of it which attracts the greater of discounts since, in the course of the overall prosecution, it should be considered as an early plea. 2. This would not have been a complicated or lengthy prosecution. 3. The discount does not reflect any other consideration arising from the plea such as saving the complainant and other witnesses if any from giving evidence, which is relevant to remorse, nor is it affected by post‑offending conduct, which is relevant to the assessment of the appropriate sentence in this matter since there were other occasions after the subject offence when the offender was in breach of the order. 4. The utilitarian discount does not consider the strength of a prosecution case. 5. There is no component in the discount for remorse, nor is there a separate quantified discount for remorse. 6. The utilitarian value of the plea for this offence is separately considered without regard to the guilty verdicts after trial. 7. There may be offences that are so serious that no discount should be given, where the protection of the public requires a longer sentence, but this is not such a case since I do not find the breach of the order to be so serious as to warrant a finding that protection of the public is engaged by this offence. 8. Generally, the reason for the delay in the plea is irrelevant because if it is not forthcoming the utilitarian value is reduced. However, as indicated, I am satisfied that there was moderate delay relevant to the assessment of the utility of his plea of guilty. 9. The utilitarian value of a delayed plea is less and consequently the discount is reduced where there has been a plea bargain, or where the offender is awaiting to see what charges are ultimately brought by the Crown, or the offender has delayed the plea to obtain forensic advantage such as having put matters on a Form 1.
I find that the offender has had the advantage of the discussions leading to a plea bargain complicated by the assertions of fact he made inconsistent with the facts upon which a sentence is to be determined for this offence. The Crown submits that a discount of 5% should be extended to the offender. In my assessment he ought to have the benefit of a discount of 15% to the sentence that I would have otherwise imposed.
The legislative scheme for sentence discounts in Part 3, Div 1A Crimes (Sentencing Procedure) Act 1999 applies to indictable offences and not summary offences which this related offence is.

Fraud Trial - Files 2020/139506 and 2021/29321

After the first trial the offender appeared for trial upon an indictment alleging four offences. He was represented by counsel. The trial commenced on 19 June 2023 and on 30 June 2023 the jury found the offender guilty of all four counts. At this point, the offender had bail for these offences but was part way through the sentence imposed by Zahra SC DCJ to which I referred. Upon the verdicts of guilty I granted the detention application sought by the Crown for these matters. I have already dealt with the need for concurrence and accumulation in the aggregate sentence to be imposed and application of the totality principle.
The offences charges were: 1. Count One: On 13 March 2020, at Sydney in the State of New South Wales, did make a false document, namely an affidavit sworn by the accused and purportedly witnessed by Zali Burrows on 13 March 2020, intending it to be used to induce some person to accept it as being genuine and because of it being accepted as genuine to obtain a financial advantage: s 253(b)(ii) Crimes Act 1900. 2. Count Two: On 13 March 2020, at Sydney in the State of New South Wales, did knowingly use a false document, namely an affidavit sworn by the accused and purportedly witnessed by Zali Burrows on 13 March 2020, intending it to be used to induce some person to accept it as genuine and because of it being accepted as genuine to obtain a financial advantage: s 254(b)(ii) Crimes Act 1900. 3. Count Three: Between 16 March 2020 and 27 March 2020, at Sydney in the State of New South Wales, did make a false document, namely a statutory declaration purportedly declared by Zenah Osman and purportedly witnessed by Zali Burrows on 26 March 2020, intending to induce some person to accept it as being genuine and because of it being accepted as genuine to obtain a financial advantage, namely $6,530.00: s 253(b)(ii) Crimes Act 1900. 4. Count Four: Between 26 March 2020 and 27 March 2020, at Sydney in the State of New South Wales, did knowingly use a false document, namely a statutory declaration purportedly declared by Zenah Osman and purportedly witnessed by Zali Burrows on 26 March 2020, intending it to be used to induce some person to accept it as genuine and because of it being accepted as genuine to obtain a financial advantage, namely $6,530.00: s 254(b)(ii) Crimes Act 1900.

Available penalties

For each of these offences the maximum penalty is imprisonment for ten years. There is no standard non-parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

The Facts

As said previously, with reference to authority, it is my task to find facts upon which to determine sentence consistent with the verdicts of the jury. I am to form my own view of the facts. Where there might be controversy I am not bound to proceed upon facts that most favour the offender, but those which inform the objective seriousness of the offences must be proven to the standard beyond reasonable doubt. Those which the offender would advance in mitigation will be accepted if proven upon the balance of probabilities.

The Domestic Violence Trial

The jury must have accepted the victim as credible. I agree that she was so and accepted beyond reasonable doubt the evidence she gave of the offender's misconduct. Upon my assessment of the evidence the following facts are established for the assessment of sentence for these offences. The offences were committed in breach of conditional liberty to which I shall refer when dealing with what is known of the offender.
Count One, assault: The first event, described as the necklace incident, is described at p 113 of the transcript, beginning at 36. The victim said that she believed this was around April 2018, which she placed in time shortly after an overseas trip in March that year.
During the morning, before lunch, she had on a necklace with a crucifix which the offender told her to remove because as a Muslim it embarrassed him. She complied, removed the necklace, and left it at the house. He drove them towards Paramatta Road to go to lunch. She noticed that he wore a beaded necklace and asked him how it was that he was allowed to wear his necklace but she was not allowed to wear hers. He became aggressive, said that she did not even know the significance of her necklace and said, "Shut the fuck up you stupid slut. Fuck you and fuck your God."
She felt scared, he kept driving. At an intersection on Paramatta Road with a right lane turn, he attempted a right turn from the incorrect lane and veered to the right. She grabbed the steering wheel to try and stop him. He pinned her arm against her body which she demonstrated. He completed the turn, pulled into a less busy street, and punched her in the head ten times. This was the first time he displayed anger toward her. She apologised as he struck her. They continued on to the restaurant. She was shaken and crying. He asked her to stop crying because people were looking and it was embarrassing him. She said she was in shock. She suffered no injuries from this event.
Objectively this offence I find falls above midrange. It involves striking on multiple occasions when the victim was within the control of the offender in a motor vehicle of which he was in charge. It occurred within a domestic relationship. I agree with the Crown submission that this is where the offence should be placed on the scale of seriousness.
Count Two was in respect of conduct in the bedroom of the house they occupied at Lidcombe. The evidence appears at line 15 p 117. It was to the effect that this was the second incident around about the same time as the first. There was discussion about other premises connected to the offender in Vaucluse and about his mother and business associates who came to collect property when he was, before this occasion, held in custody. He was angry with the victim allowing those others into the house and accused her of helping them to take his belongings. Leading to the assault the offender blamed her for the loss of his belongings. She messaged her mother and he demanded to see who it was she was messaging on her phone. She did not give him access to the phone immediately but then showed him. He often took her phone from her when they fought.
She showed him that she was communicating with her mother. This occurred in the spare bedroom. He pinned her arms against her body, which she demonstrated. He used his legs to hold her lower body down and with his free hand grabbed her hand holding the phone. He squeezed it and crushed it as she held the phone. The screen cracked on the glass and some penetrated her thumb. This offence is objectively just below or at midrange. I agree with the Crown submissions in regard to that.
Count Three, assault; Count Four, intimidation: These events were connected. The evidence regarding Count Three is at p 120 line 9 and for Count Four, from p 121 line 44. The offender inspected her phone and found the search history from her Instagram account including a search for her former partner. She searched after the offender told her he had contacted him on Instagram. She saw that he was following her former partner. The offender said that he had sent a message but would not show her what it was. She checked herself by looking at the phone and found that the offender was following her former partner. The offender told her he would meet up with the other man and when she asked why he said she would not understand, and "It is just what boys do."
He was aggressive and angry from her examination of Instagram to see what had been going on. He loudly yelled such that she feared the neighbours might call the police. She asked him to lower his voice; he said he would scream if he wanted to and dragged her into the laundry. He pinned her against the wall. She said: "He began telling me in detail that if I ever went to the police he would come for me and then he said, 'no, no, I'll come for your mother first.' He told me that's what gangsters do. They don't kill the person they want first, they kill their family and make them watch." He said he would put a bullet through her mother's head.
These offences are about midrange of objective seriousness. I agree with the Crown's submissions regarding that assessment.
Count Five, assault occasioning actual bodily harm and Count Seven, suffocation. The evidence begins at p 133 line 31. There was dispute about water bottles. The complainant said: "I could tell he was going to become aggressive so I started collecting my items. I have a spare bag that had my second phone in it because Salim would often take my phone off me, so I grabbed my emergency bag and I went to the fridge to grab something to eat and Salim pegged something at my arm from - so we're on level 1 in the house, the kitchen is also part of what Salim used as his study. He was sitting in a chair at his computer and he pegged something at my arm, I didn't see what it was but it gave me a dead arm."
I understand the use of the term "pegged" if it is correctly recorded was to represent that the offender threw an item at her.
The offender admitted that he assaulted the victim by throwing a piece of confectionary at her, a piece of chocolate as I recall, a significantly less serious offence than the Crown alleged. By their verdicts it is clear the jury rejected this version.
The victim said she could not move her arm. It bruised badly and she produced a screen shot showing the bruise on the arm which she said she had sent to more than one person. This was actual bodily harm upon which the Crown relied.
After he threw the item that hit her arm she said: "He continued yelling at me. I went to go out the door but then I thought I would use the bathroom quickly, so I went back to use the ensuite bathroom to the main bedroom, which is at the end of level 1 and Salim followed me into the bathroom, he cornered me between the sink and the toilet, he again pinned me up against the wall with is forearm across my chest". She demonstrated this. At first she was screaming. She said: "He put his hand over my nose and mouth...so he was still holding me against the wall like that and he had his hand, which is quite large, and it covered my nose and mouth, so he went like that over my face."
She demonstrated this. She said she was still against the wall at this stage. She was standing. She continued: "So he had it, he just kept pressing his hand over my nose and mouth so that I couldn't scream and I couldn't breathe, and he was telling me that he could easily kill me, he could keep beating me until I wouldn't wake up."
She said he was the most aggressive she had ever seen him. She said: "He kept repeating that he could easily kill me. He said, 'You got that? You got it?' and then eventually I felt like my arms and legs get weak and I started shaking uncontrollably and then I passed out."
When asked about the period of time that she might have been passed out she said: "I don't know. I think it must have been moments because Salim was still standing over me. The last thing I remember, and when I woke up, he was kneeling down next to the toilet bowl."
I agree with the Crown's submission that Count Five falls below midrange in objective seriousness and Count Seven is above midrange.
I shall summarise the reasons for these conclusions in respect of all of these offences when I come to deal with the Crown submissions.

The related offence

The agreed statement of facts describing this offence signed by the offender and on behalf of the Crown is part of exhibit A in the sentence proceedings. I have drawn the following description from that document.
The offence charged is said to have occurred between 9pm on 27 December 2020 and 3pm on 28 December 2020. On 23 December 2020, a provisional apprehended domestic violence order was served on the offender at Metropolitan Reception and Remand Centre by police who explained the conditions to him. The order named the victim as the person in need of protection. The order prohibited the offender from contacting the victim in any way unless through a lawyer.
On Sunday 27 December 2020 at 9.54pm the victim received a text message from the offender's sister, Zenah Osman. The victim read the message on 28 December 2020. It said: "Hi babe. Sal called me today. He was broken about the AVO. He said he never did anything wrong. He said the AVO, there's no need and so-forth. He wants u to withdraw it. I don't know man, he was saying all this stuff about loving u. I felt sorry for him."
"Sal" is a nickname for the offender.
The victim attended Auburn Police Station on 30 December 2020 and showed police the message; they thereupon obtained a search warrant for the offender's call activity report and recorded calls he made in custody.
The records indicate that the offender had a video visit from Zenah Osman on 26 December 2020, the day before the message was sent. The records also indicate that the offender had a phone call with Zenah Osman on 27 December 2020 at 11.13am for five minutes and 57 seconds, the day of Zenah Osman's message to the victim.
The records further indicated that the offender had a phone call with Zenah Osman on 28 December 2020 at 1.17pm for five minutes and 56 seconds. The offender concedes that in this call he reminded his sister to speak to the victim for him. There is no evidence currently available that Ms Osman contacted and spoke to the complainant.
The records further indicate that the offender had a phone call with his sister, Mary Mehajer, 29 December 2020 at 1.49pm for five minutes and 30 seconds. The offender made the call to Mary Mehajer to see whether she would speak to the victim to try and "soften" her and "speak to her." There is no evidence currently available that Mary contacted and spoke to the victim.
The records also indicate that the offender had a phone call with Zenah Osman on 30 December 2020 at 1.22pm for five minutes and 54 seconds in which he asked Ms Osman whether she had spoken to the victim for him and reminded her again to ask the victim if she would "take off" the AVO. Zenah Osman later sent a message to the victim which said: "Look, I guess u got to do what needs to be done. It's sad things ended this way, but I guess it wasn't meant to be. I think u should now close that chapter and walk away."
The police undertook the following investigation.
At 8.50am on 20 January 2021, police attended Silverwater Correctional Centre and met the offender. They introduced themselves and placed the offender under arrest. The offender agreed to participate in an ERISP.
The offender said that his sister told him that the victim was going to put on an AVO. He told his sister:
"Look speak to her. Tell her, 'don't be silly, don't do anything like that." His sister said, "Look just accept the AVO otherwise she's going to take your stuff." The offender said, "She's got all my money. She's got my watches. She's got my wallets. She's got my phones."
He said he told his sister: "Look I'm happy to accept the AVO for five years but two conditions. A, the facts have got to be amended, and the second thing is, um, the facts and return of my property. And I also want an AVO, because she could set me up and, you know, rock up somewhere and I don't want to be in breach."
The offender stated that he had met the victim's parents and have never been rude to them. In relation to the breach offences the offender agreed that he was served with a provisional AVO on 23 December 2020. He did not know who served it and said, "within five seconds, he was, the person left."
He said he did not know the AVO was effective until at Court. He said he never intended to breach. He then said that before he received the AVO his sister told him he was going to receive an AVO and he asked his sister to, "Calm her down. Speak to her."
He said that apart from that there was never any breach. He denied that the condition of the AVO were read out and explained to him. It was put to the offender that he read the AVO and one of the conditions was no contact. The offender said: "You're, you're trying to corner me now and I, respectfully, I've answered the question, so - I, I just, I just don't want to be cornered into, something that, I, I don't, I'm not saying."
The objective seriousness of the offence is slightly less than midrange. The offender was in custody and was without question subject to the apprehended domestic violence order which he admits he breached. It is implausible to think that he did not know of the limitations imposed when they were served upon him. It is also without doubt that he was aware that it followed the institution of the domestic violence offences which occurred between 1 April 2018 and 4 October 2020.
He sought contact with the complainant, albeit predominantly through others, on multiple occasions over the 27 and 28 December 2020 seeking to have the victim controlled and discouraged from the lawful actions that she had taken through the Courts to protect herself from him. For this offence I accept that there is no sentence other than fulltime imprisonment appropriate.

Victim Impact Statement

In her statement of 2 August 2023, all of which I have read, the victim described how the offender's misconduct has impacted. When she met him she had a promising business career supported by success in her tertiary studies. Her ambitions were shattered by the offender's violence from which she suffered three years of severe physical, mental, emotional, and financial abuse. The assaults caused a seizure, bruises and other injuries requiring medical attention.
She continues to suffer what she writes are emotional scars. She suffered fear and anxiety responding to the offender's endless demands, fearful of repercussions from failure to comply. She suffered sleeplessness. She suffered loss of contact with friends and family. She missed noteworthy events with them in the time she was with the offender under his controlling influence.
Telephone contact with her sister exposed her to violent rage. He isolated her from her friends and family, controlled all aspects of her life and caused feelings of worthlessness and loss of power. She felt safe at work but not in the home they occupied. She subordinated her needs to those of the offender, experienced fight, or flight responses to his behaviour, and became hypervigilant.
She wrote that she continues to feel these impacts. She was drained and exhausted by the extensive cross-examination to which she was subject; participation in the proceedings triggered responses to the trauma she suffered from the offender leaving her distressed and hyperventilating in her home where she ought to have felt safe.
She suffered financially from the obligation that she had to participate in the extended proceedings. Her trauma left her unable to enter an intimate relationship from which she hoped she would have a family. Her fear is that she will be unable to do so before she reaches the ages when this will be difficult or the opportunity lost to her.
The abuse she suffered escalated over the time of the relationship becoming worse each time. She feared for her life regardless of whether she left or remained in the relationship. She took the opportunity to leave when he went into custody.
She continues to work through her responses to the trauma. She is more timid than she needs to be in her career because of her fears, which has negatively impacted on her career opportunities.
The Court has been given insight into the magnitude of the impact of these offences. I have not overlooked that the victim impact statement extends to areas that were not the subject of prosecution but provide context in which the offences were perpetrated for the determination of sentences.
I have taken the representations in this document into account but I make clear not to aggravate the offender's culpability or the sentences to which he is justly exposed, but as is appropriate in my view to mark the impact of this appalling behaviour upon the victim in the circumstances of coercive control to which she was subject by this offender.
I have reviewed R v Previtera (1997) 94 A Crim R 76, R v Bollen (1998) 99 A Crim R 510, Regina v Dang [1999] NSWCCA 42 per Adams J at [25] to [26]. There are other authorities dealing with the approach of the Court in the assessment of a victim impact statement which the Court is permitted to consider when assessing the culpability of the offender in the misconduct charged of which he has been found guilty.
The statement is a compelling reminder of what follows for victims after such misconduct to which she was persistently subject.
I note that apart from the evidence in the trial there is no medical evidence against which to assess the subjective assessments of the emotional impact asserted by the victim, but her description is as one might expect. The material before me does not permit a finding that she suffered substantial psychological harm, which is I understand is the proposition advanced by the Crown, but I do accept that the impact upon her psychological health must have been, and is, significant.

The Fraud Trial

The evidence in the Crown case, in this trial, provided the following circumstances of context in which the accused committed the offences.
On 20 March 2018, the offender was declared bankrupt whereupon his divisible property vested in his trustee in bankruptcy, Paul Weston. The staff member, who had the day-to-day dealings with the accused's estate, was known by the shortened name of Ragu Nith. He was the accountant responsible for the day-to-day administration of the estate. Among other things, the role of the trustee is to take control of the divisible property and make it available in the estate for the benefit of the creditors.
On 4 March 2020, the police searched the offender's unit at Kirribilli and found in a cupboard $6,530 in cash with the accused's driver's licence. The police seized the cash and notified the trustee. The cash was acquired after bankruptcy, vested in the trustee, and became part of the estate.
On 9 March 2020, the accused contacted Mr Nith and said the seized cash belonged to his sister and her company, Mehajer Vision.
On 10 March 2020, Mr Nith received a letter of the same date purportedly from Zenah Osman on Mehajer Vision letterhead stating that she was operating a home office out of the accused's residence and that the seized cash belonged to her and Mehajer Vision and seeking that the cash be transferred to a bank account of Mehajer Vision. The letter had earlier been forwarded to Zenah Osman's email account from the accused's email account.
On 12 March 2020, the accused contacted the trustee by telephone in the presence of Osman and reiterated that the seized funds were Osman's. The trustee requested that further documentary evidence be provided.
On 13 March 2020, the subject affidavit by the accused was filed in the Federal Court in respect of a bankruptcy, challenging the debts and claiming that the trustee failed to adjudicate the claims of the creditors. It is said that the offender had completely lost confidence with his trustee in bankruptcy.
The affidavit did not refer to the cash seized but provides context relevant to the assessment of these offences. The affidavit was purportedly signed by Zali Burrows, a solicitor who had previously acted for the offender. The Crown case was that it was not Zali Burrows' signature.
Counts One and Three are offences of forgery of the affidavit and a statutory declaration. Counts Two and Four are offences of using those false documents.
Count One relates to the forgery of the affidavit and the swearing of a witness who did not sign it. On 13 March 2020, it was filed in the Federal Court and was thereby used.
On 16 March 2020, the trustee emailed to the offender and Osman seeking further evidence of ownership of the cash including a statutory declaration from Osman, evidence of the nature of the business activities that were carried out by Mehajer Vision, and any evidence of Osman conducting the business from the accused's premises. The trustee, the same day, received an email from the offender, copied to Osman, demanding the return of the cash but without provision of the evidence required. There was no statutory declaration. The email said in part, "On another note, I'm happy to have the trustee resign now, and I may consider not pursuing the allegations I have raised in my affidavit." The trustee responded with an email on the same day stating that if the requested further documentation were not provided, the trustee would be claiming the funds.
On 19 March 2020, the trustee received an email purportedly attaching a response by Osman dated 17 March 2020 claiming that she was too ill to provide the requested information, and a statutory declaration making various statements about Mehajer Vision and demanding the return of the funds. The email was from Osman's email account that had earlier been forwarded to Osman's email account from the accused's email account.
On 20 March 2020, in response to a further email from the accused that day, the trustee emailed the accused and Osman stating, in effect, that the requested information was still required in order to resolve return of the cash.
On 26 March 2020, the trustee issued a letter to the accused, which was copied to Osman, stating among other things, effectively, that the information so far provided by the accused and Osman as to the origin of the cash were unconvincing and setting out further documentary evidence required, which included a statutory declaration, and advising that if this was not provided the cash would be claimed as part of the estate.
On 27 March 2020, the trustee received an email from the accused, a copy to Osman, providing a response to the trustee's letter dated 26 March 2020. The offender therein addressed in part the return of the cash to Osman, threatened that if the money was not returned that day the accused would commence legal action, and stated that the accused had spoken to solicitor Zali Burrows about this and she was willing to assist him.
Attached to the email was a statutory declaration dated 26 March 2020 which was purportedly signed by Osman and witnessed by Zali Burrows, solicitor, claiming that the seized cash belonged to Osman and Mehajer Vision and that Burrows had previously acted for Mehajer. The statutory declaration signed by the declarant purportedly had the signature of Ms Osman and was purportedly witnessed by Zali Burrows. Neither were the people who had signed them.
On 3 April 2020, the trustee told the accused that the money would be claimed as part of the estate. On 27 January 2021, police spoke to the accused. As far as the affidavit is concerned, he confirmed that it was his signature on it. He also said that it appeared to be Burrows signature on it and he believed she had signed it. He went on to say that he did not have an electronic account for the filing of documents with the Court and that it would have been lodged with the Court in person. He said there is always a JP at Court available to witness documents so there was therefore no need for him to forge or fabricate the witness's signatures.
Upon my assessment of the evidence, these facts were established and provide context for the behaviour of the offender and the assessment of sentence for these offences. Once again, these offences were committed in breach of conditional liberty.

Counts One and Three

These counts are the offences of making and using the false affidavit. This included the affixing of the signatures represented to be those of Zali Burrows who gave evidence that she did not sign the affidavit or any of the documents that were attached to it. The Crown case was that the offender forged her signature in each of the places where it appears, to induce another to accept the document as genuine and to obtain the financial advantage of accessing $6,530 which was held by the offender's trustee in bankruptcy.
The Crown case did not include any evidence of a statement or representation by the accused that he wrote the signatures or of his intention in doing so. He denied that he forged these signatures. The issue he raised by way of counsel's opening address was whether the affidavit was in fact a false document and whether ,at the time he used it, he knew it was false, which carries the connotation that as far as the accused is concerned, his perception is and was that Ms Burrows signed it.
The offender gave evidence regarding this at p 113 line 31. He was shown exhibit B: "Q. Go to page 11 please? A. Yes, page 11. Q. That is the affidavit that was filed in the Federal Court? A. Yes. Q. Did you file that affidavit? A. To the best of my recollection, this affidavit was filed by me. Q. If I take you to page 20 of that document, sorry, page 11 of that document, page 20 in the bundle? A. Page 20, yes, page 20. Q. Now, if we start with the typed lettering, that says sworn. Affirmed is crossed out by the deponent. A. Yes, I see that. Q. And that then Sydney CBD, New South Wales 2000 has been linked in? A. Yes, I see that. Q. I'm asking you a question, I'm asking you to go back more than three years, but do you have a recollection yourself of signing this document? A. I do recall signing this document with almost certainty, yes. Q. Do you recall where you signed the document? A. I do not recall precisely, no. Q. Now, we've got the signatures and name of Ms Zali Burrows on each page, do you recall whether she signed this document? A. Yes, so I do recall her witnessing this document. Now, the only thing that comes to mind is a possibility where there's electronic. I'm not 100% sure that this document was signed by Zali Burrows."
The effect of this and other evidence given by the offender was that he had no role to play in affixing Zali Burrows' signatures to the documents where they appeared, which I find to have been untrue.

Counts Two and Four

These offences were charged upon the statutory declaration. The Crown case was that the offender forged the signatures of Ms Zena Osman and Ms Zali Burrows. Both gave evidence that they did not sign the document. The issue he raised by way of counsel's opening address was whether it was in fact a false document and if so, whether the offender knew it to be so. His evidence regarding this by which their verdicts of guilty the jury rejected is at p 117 line 16. Q. "If we go to the statutory declaration on p 81 or the signature on p 81? A. Yes. Q. The signature of the declarant, did you sign that? A. No, I did not. Q. And what about the authorised witness, did you sign that? A. No, I did not. Q. Did you ask anyone to sign those documents? A. To prepare to have these documents signed? Q. Yes? A. If I could put it that way, is that okay. Q. Did you ask anyone to sign these documents? A. I asked someone to get these documents witnessed and signed, yes. Q. Who did you ask? A. My, my employees at the time that were assisting me, there were two persons. There was partner, my then partner and the person named Ali Ramadan. What comes to mind is Mr Ramadan. Q. You asked Mr Ramadan to what, regarding the statutory declaration, what did you ask Mr Ramadan to do? A. I asked Mr Ramadan, it was during COVID at the time, Zena didn't have, to the best of my memory, she didn't have a printer at her home so she would normally go to an Officeworks and have the documents printed. So I asked him and from memory it was, my ex‑partner was also there to have this document, to assist me by having this document signed, get Zena to sign it and a JP and get witnessed so the--
His Honour: Q. Just before, where did this occur? A. At the Kirribilli address. Q. Who was present did you say? A. To the best of my memory, my ex-partner MT and also Ali Ramadan. Q. And just how do you spell Mr Ramadan's family name?"
He spelt the name. "Q. Was this document already prepared to the point that you were asking him to execute or have it signed? A. Yes, that would have been prepared."
Mr Hart, the offender's counsel: "Q. Just in relation to his Honour's question, part of his question was, what in effect did you ask Ali Ramadan or anyone else to execute this document? A. To have it executed by Zena. Q. How did you receive this document, the signed document, how did you receive that? A. There's two possible ways which come to my mind is either it was hand delivered to me or emailed to me and I would have printed it out from my email address. Q. When you sent the statutory declaration that was in that ...(not transcribable)... were you aware that she hadn't signed it? A. I became aware later as at the time, I was not made aware, no."
I find that evidence to have been untruthful.
Senior counsel who finally appeared for the sentence proceedings sought to minimise the seriousness of the fraud offences by casting the complexion that the offender's conduct was not to gain money which he knew was not his or his sisters. He submitted that the unchallenged evidence was that the $6,530 belonged to his sister. The substance of the offences was failing to complete the documents correctly. It was said that these would have been dealt with in the Local Court but for the extent of the prosecutions against the offender. He drew a contrast between electoral fraud, of which the offender had previously been found guilty, said to have been more serious than this conduct. The proposition advanced in those submissions was that the offences should be seen to be minor. This was the essence of what was said, which I do not accept.
The Crown's submission in writing focussed upon the propositions advanced on the offender's behalf that he was burdened by a mental illness that informed the moral culpability of the conduct of which he has been found guilty, but also made clear with regard to other important features of the case that denunciation, and personal and general deterrence were of particular importance here. The Crown noted the difference between these offences and the domestic violence offences upon which sentences are to be imposed and submitted that there is sufficient difference between the two sets of charges that there must be some accumulation between the sentences for these fraud offences and those to be imposed for the domestic violence misconduct.
The submissions do not address the propositions that were advanced on behalf of the offender, which prompted Mr Ozen of senior counsel to submit that the Crown has thereby made the concession that the conduct of the offender was not to gain money to which he was not entitled. The Crown's position in relation to this was that it would beggar belief to accept that if the money were released from the estate, that it would not, at least in part, find its way into the pockets of the offender.
This is perhaps a matter of inference, or more likely conjecture in the absence of evidence. However, that said, the context of these offences and the vigour which is apparent with which the offender pursued the trustee in bankruptcy seeking access to the money, including the source of emails that were delivered from his sister in whose name and in respect of whose business the money was sought, are more consistent with the position for which the Crown has contended on this point. Even giving the benefit of the doubt to the offender regarding the submission and where the Court should come to upon this point, bearing in mind the burden of proof upon the Crown to prove beyond reasonable doubt the objective facts informing the seriousness of the offence, it remains that this conduct was in blatant disregard of our system of law which for its success depends upon the veracity and the integrity of documents that are filed in whatever court for whatever curial purpose.
I do not see this as minor misconduct. I see it as serious misconduct impacting upon our system for the administration of justice. I agree that it is deserving of punishment and requires a custodial sentence that must be served.

The Offender

The offender was born in 1986 and this year will be 37 years of age. He has a record of antecedents which commenced in New South Wales with an appearance in the Local Court, Bankstown, where on 15 July 2008, he was ordered to submit to a 12-month bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 for an offence of damage to property. He was then 22 years of age.
On 9 July 2009, when 23 years old, he was fined for possession of a prohibited drug. He successfully appealed to the District Court and pursuant to s 10 of the Act was found to have committed the offence but with the charge dismissed without conviction.
On 28 January 2016, when he was 30 years of age, he was fined for driving without carrying his licence and had a charge of using an unregistered vehicle dismissed pursuant to s 10 of the Act.
On 23 February 2018, when he was 32 years of age, for assault occasioning actual bodily harm committed upon a journalist, he was convicted without penalty pursuant to s 10A of the Act. He appealed unsuccessfully to the District Court against the sentence.
On 1 March 2018, again when 32 years of age, for assault occasioning actual bodily harm when he struck a taxi driver with the EFTPOS machine, he was convicted and ordered to submit to a bond pursuant to s 9 of the Act for three years, with conditions requiring him to attend counselling and educational development, and for drug and alcohol rehabilitation and anger management. For an offence of damage to property he was ordered to enter a bond pursuant to the same provision for 18 months. His appeals to the District Court for these sentences were withdrawn.
In the next sequence of antecedents he was subject to conditional liberty, in breach of which he committed the offences upon which he is today to be sentenced.
On 25 February 2019, when he was 33 years of age, for contravening an apprehended violence order for the protection of his ex-partner, he was fined and ordered to submit to a Community Corrections order for 12 months. For negligent driving he was fined. In the District Court he withdrew an appeal from the sentence for the driving offence, but the sentence for the breach of the order was varied to a conditional release order of 12 months.
On 22 July 2020, when he was 34 years of age, for possession of a prohibited drug, he was ordered to submit to a conditional release order of 12 months. On appeal to the District Court this was varied to a conditional release order of 12 months without conviction. The offence was charged on 23 January 2018.
On 23 April 2021, when the offender was 34 years of age, he was sentenced to an aggregate sentence of three years and six months, including a non‑parole period of two years and three months from 19 October 2020, with the expected date of release of 18 January 2023. This was for offences of doing an act to pervert the course of justice and make a false statement on oath. He sought leave to appeal unsuccessfully to the Court of Criminal Appeal. These offences were respectively between 15 and 16 October 2017 and 14 December 2017.
In addition to the offences against the laws of this State, the offender was charged for offences against the Commonwealth, of which he was convicted on 18 April 2018 in the Local Court and sentenced on 22 June 2018. There were two offences of publish false and misleading information for each of which he was sentenced to seven months imprisonments, to be released upon recognizance to be of good behaviour for three years. For an offence of using a false document intending it to be accepted as genuine by a Commonwealth official, he was convicted and sentenced to 20 months imprisonment to be released upon recognizance in similar terms. For an offence of failing to help a liquidator as a company officer, he was fined, and for failing to report the company affairs to a liquidator, he was fined.
In custody he accumulated an array of offences between 17 February 2018 and 7 October 2022. There were 29 occasions when he was called upon to answer for misconduct of diverse kind, consistent with an attitude that he has no obligation to comply with the rules necessary in the arrangements under which he was detained.
The offender presents as a complex man and one who is, I find, not so burdened as those who provided reports would have the Court accept. I have had the opportunity to observe him over the years, from when he first appeared before me as list judge at Parramatta following his release to bail in the Supreme Court by Fagan J, shortly after which he sought variation of the conditions which his Honour imposed. He appeared before me regarding bail on several occasions, before he came before me for the conduct of these trials.
Before the trials commenced he sought a stay of the prosecution for the domestic violence offences of which I refused: R v Mehajer [2023] NSWDC 98. He appealed my decisions unsuccessfully to the Court of Criminal Appeal: Mehajer v R [2023] NSWCCA 101. He pursued other applications before me, representing himself for the domestic violence prosecutions: R v Mehajer (No 2) [2023] NSWDC 15; R v Mehajer (No 3) [2023] NSWDC 197.
Throughout the proceedings he questioned witnesses, produced documents in the form of affidavits, notices of motion, and subpoenas, and addressed the Court with argument. I noted in my first interlocutory judgment beginning at [44]: By way of summary only, it is apparent that Legal Aid NSW and the accused's trustee in bankruptcy were not satisfied that he had been complete and entirely accurate or honest in material that he provided them from time to time, in the course of the myriad of proceedings in which he has been involved. The question that then arises is whether if that evidence is accepted the accused has satisfied the burden of proof upon him to show to the Court that he is indigent and is unable to provide the necessary resources to have legal representation for him in the course of the trial. I am not satisfied that he has discharged that burden. Lest I be wrong in that view, I would add the following. I have had the opportunity to observe the accused throughout the conduct of this voir dire. He has addressed me both in writing and orally in the courtroom. He gave evidence and faced cross‑examination from a competent and thoughtful Crown Prosecutor who carefully raised the matters for consideration by the Court upon which the decision is to be reached. I have no doubt that he is competent and capable for the conduct of the trial which is to now commence next week. I note that in the most recent document provided outlining the submissions he makes in support of his application that he was assisted in that regard by Mr Adam Cranston, who I understand to be the accused in the trial that was before his Honour Beech-Jones CJ at CL. Without knowing the extent of that assistance for preparation of that document, when I compare the documents in the form of affidavits that he has prepared from time to time throughout the conduct of this voir dire, it is apparent that he is articulate, can marshal his thoughts, and present argument in a logical and sensible manner. The conduct of this trial will involve a person who will be engaged to conduct cross-examination of the complainant because of the nature of the offences upon which the accused is presented. Thus, he will not face alone the task of formulating questions and putting them to the witness as she is tested in her assertions, though I accept that he must at least identify the topics for cross examination and identify the facts he would wish to elicit in cross examination. I note that the assistance is to be provided for him and that this is a requirement be followed in this trial.
These passages were in respect of the application to stay the proceedings for the domestic violence offences upon the grounds that the offender could not arrange representation. Earlier in the judgment I dealt with the offender's application that I recuse myself from the trial and referred to my decisions in response to his pursuit of bail variations. Beginning at [14] I wrote: 14. When sitting as the list judge at Parramatta, I determined the accused's application for variation of bail granted by Fagan J in the Supreme Court. I delivered ex tempore judgements on 28 June 2019, 25 July 2019, and 23 October 2019. I accessed these to bring to mind my decisions and reasons for them. I provided the accused with copies of the judgements and the transcripts of the proceedings on 22 May 2019, 28 May 2019, 29 May 2019, 6 June 2019, 11 June 2019, 13 June 2019, 18 June 2019, 20 June 2019, 21 June 2019, 24 July 2019. 15. The reference to an affidavit from the complainant extended to the transcript at page 33, where the accused acknowledged that he did not lead evidence from the complainant because of her mental health and the Crown would not consent to the tender or filing of her document without the opportunity to cross examine her. After this discussion, the accused said: ACCUSED: Yes, that's right. So, that put a bit of pressure to [the complainant], and we thought it in her best interest, mental health and so on, that she not be called. But the affidavit was executed on the day. So, in light of that, your Honour, I think the best way moving forward, and I say this with my utter respect to your Honour, that the recusal application should only extend potentially to the stay application because the jury trial, I don't think there'll be much of an impact having your Honour appear for the jury trial, but for the stay application is what I would be seeking the Court to have his Honour step aside, and I say that respectfully, and the main basis for that, your Honour, is the adverse findings made in his Honour's judgment. 16. I invited the accused to identify those findings. The relevant judgement was on 23 October 2019. He noted page 43 and the passage, There is one further aspect upon which I would comment and that is this: he represented to this Court that there was grave difficulty in him having a landline to his premises for various reasons proffered and an expert witness was called in that regard as well as evidence from investigations by police with regard to Telstra. The evidence led me to reject the representations advanced by the applicant in respect of those matters. 17. The accused amplified the circumstances behind that summary and concluded, So, I just have genuine fears, and I say this respectfully, that you may be unconsciously perhaps have a pre‑judgment against me in that regard. That's all I really have to say. Unless the Crown has to say something, I may respond. 18. I asked if there was anything else in the judgement that he would have me consider, and he added, alluding to my reference to a detention application, It was for a detention application. So, page 43, third paragraph beginning, "I am satisfied". As to the adverse findings, that's all I wanted to point his Honour to and as I was saying earlier, what I'm concerned about and I used the Telstra line as an example where I had an expert witness and documentation from Telstra if I wasn't able to convince his Honour that I was telling the truth. I don't know how I'm going to be able to satisfy your Honour that I'll be telling the truth in respect to unable to self‑represent myself adequately and the fact that I don't have legal representation not because I choose to, but because it's out of my control. 19. I identified the relevant passage beginning on page 43 and extending over onto page 44: I am satisfied that the concern that the applicant might commit further serious offences or interfere with witnesses or evidence are such as would require the Court to give careful consideration to an application for detention by the Crown, however, the Crown does not seek such an order. Regrettably the applicant has demonstrated that he is unable to comply even with the most easily observed conditions of limiting himself to the use of one mobile telephone. There is one further aspect upon which I would comment and that is this: he represented to this Court that there was grave difficulty in him having a landline to his premises for various reasons proffered and an expert witness was called in that regard as well as evidence from investigations by police with regard to Telstra. The evidence led me to reject the representations advanced by the applicant in respect of those matters. 20. The accused said that his argument was that even though the bail variation went in his favour, the adverse findings were about his credibility, important for his application to stay the proceedings and how the jury would perceive him representing himself. He suggested there was scope for an unconscious bias, or lack of impartiality, and held fears that the stay application might work against him.
From his conduct in the trial in the domestic violence offences and as presented in the applications leading to the judgments from which I have noted, and from when he gave evidence in the fraud trial, there is no doubt that the offender demonstrated intelligence and the unqualified capacity to pose questions to witnesses, address both writing and orally in the courtroom, and demonstrated his abilities when he gave evidence and faced cross‑examination from the Crown upon which the decision was to be reached. I remain of no doubt that he is competent and capable and was so for the conduct of the trial which was to commence in the next week.
My assessment of the offender over the extended periods he has been before me in these various processes causes me to doubt much of what is said of him by psychiatrists and psychologists willing to offer mitigation for his criminal conduct.
I noted on the record at this point of the judgement that whereas I said previously that the aggregate sentence would commence on 27 January 2022, noting that the sentence imposed by Zahra SC DCJ commenced on 19 October 2020 with the expiration of the non-parole period on 18 January 2023. To reflect what I intended with the part accumulation on that sentence I will start this aggregate sentence on 19 January 2022.
I am now dealing with the offender and the starting point is of course a sentence assessment report that was prepared. This was written on 19 June 2023 after the conclusion of a second trial. The report notes that he had been living with his then partner, the victim in the domestic violence trial. He intends to reside with his parents once he is released. His close relationship with his immediate family was verified with the offender's father who confirmed that the offender will have their ongoing support. The offender said that he had a mix of positive and antisocial peers in the community. He has been consistently employed but with issues within his public appointed role (I take that to be a reference to his local government service), and also in his private business ventures.
In custody he has held periods of employment within textiles technology and as a stores clerk and according to the records he has had mixed experiences regarding his custodial work ethic. He has been unemployed since 30 August 2022 in custody. His antecedents are summarised. here is a reference to him having current alerts within Corrective Services New South Wales for known associations with members affiliated with outlaw motorcycle gangs and/or organised crime networks. There is no material before me to support that and I put that to one side.
There is reference to his 46 institutional misconduct episodes since 2018 and what they were. It is noted however that there has been abatement since October 2022. He denied a problematic history of substance use but conceded the abuse of pain killers following an injury. There was a urinalysis on 27 July 2021 which returned a positive reading for methadone. I have no further material before me to explain how it might be that he would have the residue of that substance in his system.
He maintains his innocence in respect of the offences. I note that this document is concerned with the domestic violence trial charges. He is said to have attributed blame to the victim, suggesting that the allegations of violence arose after she became aware of text messages he had sent to other females. He suggested she was acting jealously and vindictively. He suggested she amplified the allegations to make the case against him stronger. He denied assaults and referred to her as delusional. Understandably, further antecedents and insights were not determined fully because of his express attitude to the allegations against him.
He acknowledged verbal arguments in the relationship but suggested that he was all bark and no action. He denied violence towards his partners and was disgusted that there should be such allegations or accusations against him. He implied that the victim fabricated her injuries using an application on her mobile phone. Part of the case he argued was that on the face of the images that were before the jury it was apparent that there were fabrications misrepresenting injuries that he denied she had suffered. I paraphrase but that is the essence of the position he took in the course of the trial. The report notes that these offences do not appear to be isolated. There is reference to the apprehended domestic violence orders, one for his ex-wife and one for the current victim. He identified depression and decline in mental health during his past antisocial behaviour but said he was not experiencing these symptoms during the offences. That stands in some contrast to what is offered in other material that has been presented in his case.
There is a reference to his diagnosis of a bipolar mood disorder in 2018. I take that to be a reference to the report by Dr Olav Nielssen. Subsequent reports are said to have remained consistent with this diagnosis. Of note is that in Justice Health records which I have read he is said to present with a narcissistic personality disorder. There is also a reference to a report that represented grandiosity and a propensity to be impulsive and to be sensation seeking.
He demonstrated minimal insight into the impact of his offending.
The offences in the domestic violence trial roadblocked him financially and occupationally. Regarding the victim he said respectfully he has no remorse and no intentions of having further contact with her.
He is willing to undertake interventions in the community and in custody but as noted in light of his denial of the offences it does not appear he has identified the criminogenic factors that he needs to address.
He can perform and is willing to perform community service, notwithstanding a spinal injury which required surgery in 2016. He indicated no further ongoing medical complications.
Response to supervision in the past was labelled superficial.
He has remained engaged with his psychiatrist and psychologist and completed the EQUIPS Foundation program.
It is noted that he engaged in intimidatory behaviour towards a Community Corrections Officer in 2022.
He is assessed with a medium risk of reoffending. There are further passages discussing the supervision plan that he might need, recommended conditions, and community service assessment.
Medical evidence that was produced included a report by psychologist Paul Pusey of 2 August 2023. This was prepared in anticipation of sentencing late last year. Dr Pusey had available the Crown case statement and various other documents listed in his report. The assessment was by way of AVL on 28 July 2023. The information contained in the report is based upon self‑reporting by the offender. He interviewed him for about two hours.
The behavioural observations included that he did not present as guarded, suspicious, or hostile. He displayed an appropriate attitude and was open in disclosing with a reasonable level of engagement. No overt abnormalities were evident. He demonstrated a partial level of insight into the factors related both to his current and historic offending. He displayed a broadly congruent range of emotional expressiveness.
The current situation included that he had been in custody at that point since October 2020. This was not his first period of incarceration, the first of which occurred in 2018.
He acknowledged his contact and domicile with the victim.
He denied guilt in relation to all of the charges with the exception of the charge of contravening the apprehended violence order and he said that the statement of agreed facts in relation to that offence was an active reflection of what transpired in relation to it.
He assisted with the representation that his understanding was that it did not come into effect until the Court appearance later in the year, but this notwithstanding he accepted that the breach of the apprehended domestic violence order occurred. He admitted the contact by way of his sister summarised in the report. He suggested that his approach by way of his sister was after the victim had told him that she would not continue in a relationship because of photos of himself and another woman found on his mobile phone. When asked about his motivation for the attempted contact through the use of an intermediary he said that his mind was convoluted and he believed that his emotions got the better of him. He had not been charged with any of the domestic violence charges or assault at that time and the contact was aimed at attempting to save the relationship and not for any other reason. His sole focus he said was to save the relationship, he said he was an emotional wreck at the time.
He challenged the accuracy of the Crown case statement that the doctor had. He did not accept that he was guilty. He was attributed with the proposition that he was in this predicament because she was motivated to bring the allegations after finding images of him with another woman. She allegedly told him that she could not speak to him because he had been unfaithful and told him not to contact her again. She was unwilling to listen to his explanation which he had to offer her.
Some of the evidence regarding text messages he suggested were creations by the victim sent by way of her phone while he was in custody.
He accepted there was conflict in the relationship but denied there was any violence.
He attributed his criminal offending to impulsive behaviour. He said it was never calculated. He said he would fall into emotional states which would lead to poor judgment, particularly when he felt elevated. His mind feels on overdrive; he said, "It's hard for me to determine right from wrong." I have difficulty accepting the voracity of that representation.
He attributed his historic episodes of offending to mental health symptoms, particularly episodes of mania. His deteriorating mental state led to poor decision-making. The value of that proposition is to be weighed against the history of proceedings in which he was prosecuted in the Local Court and on a number of occasions sought to take the opportunities that were available to him by law to pursue appeals in the District Court seeking to go behind or have mitigated the outcome in the Local Court.
The offending in 2015 to 2016 was a consequence of silly actions on his part. He had cameras in his face, he felt blocked whichever way he turned. He said he was not diagnosed with bipolar disorder until after these offences occurred. He did not begin medication until between the middle and the end of 2018. He was frightened he said to take medication because he thought it would change the person that he is.
He referred to charges of perjury and perverting the course of justice; that was with regard to a bail application. I will put to that one side for the moment.
He said that when he is in manic state and experiencing that extreme high, "I do not realise how small actions lead to offending or that anyone would view my actions differently to how I would." He said his brain is in overdrive and feels like he has up to 1010 things going on in his mind at once.
His psychosocial history is discussed. His relationship with his wife is discussed; that ultimately broke down he believed because of the intense media scrutiny that followed their marriage. Although aspects of that relationship became part of the material in the trial it was ultimately not developed, and so I can make no further comment upon it because it is simply not before me, other than to note that he was endeavouring at one point in the trial to have a subpoena issued to his former wife to come to Court and give evidence that at no point in their relationship did he strike her. When the Crown indicated that there was material upon which it could look to challenge the assertion of good character within that context he abandoned the course. As I recall it the Crown had served that material upon him, but as I say I do not bring that to account bearing in mind that it is not before me and I have very little in the way of detail that would enable me to make an assessment of the attributions here regarding the breakdown of the marriage.
Enquiries were made of his sister Fatima who spoke of his excessive behaviour summarised in the report.
His developmental, educational, and vocational history is discussed, including that he has tertiary qualifications in building and engineering. He said before his arrest, his social relationships were healthy and he felt able to make healthy and appropriate social decisions.
He denied that his decision-making was significantly influenced by the opinions of others, however acknowledged that he is willing to seek alternative opinions and advice as part of the decision‑making process.
Substance use is discussed. He denied any illicit substance use apart from anabolic steroids that he took apparently to facilitate body development. These were provided by prescription in Lebanon he said. He said that he used them because he felt his body was never good enough. He said that his body image was poor. He rated this as being on a scale of four out of ten.
There is reference to spinal surgeries in 2016, 2017 and 2018 and cited pain which afflicted him.
There is reference to Dr Nielssen and Dr Roberts who diagnosed him with bipolar affective disorder, post-traumatic stress disorder, and body dysmorphic disorder, and it is noted that he also presented with a narcissistic personality disorder.
There is reference to a Dr Henderson who was to start him on lithium but he was incarcerated before that could occur.
His mood was discussed, the adverse impact from solitary confinement which he said he was experiencing since October 2020.
Based upon the self‑report the opinion offered is that it is likely that he would have met the diagnosis for multiple mental health diagnosis as described, namely bipolar affective disorder and body dysmorphic disorder.
There is a discussion of the risk of reoffence.
I note that Dr Pusey is a psychologist.
There is a bundle of material from Justice Health which includes consultations with the nurses and psychologist's available there.
The report from Dr Olav Nielssen of 13 June 2018 is included and he has had the benefit of that document; it is sympathetic to the position taken by the offender. This report was prepared following his conviction or determination of guilt in respect of offences as part of an electoral fraud that was allegedly to have taken place in July 2012. He gave the express intention of appeal from that decision.
There was also reference to his need to attend the Federal Court to contest his bankruptcy proceedings.
There is reference to him being detained in solitary confinement for the entire time he spent in prison on remand despite his request that he be in an area where he would have more access to phone calls and documents. He said his request for transfer was denied on security grounds and because of his media profile.
He said the nurses attended his cell every day to enquire about his wellbeing.
He experienced exacerbation of his back condition. He said he had stockpiled medication to take at night only to be charged for doing so and received punishment of 42 days off visits.
There is reference to hallucinations that took the form of footsteps he heard in the night. He saw a Dr Hannam, psychiatrist, who diagnosed a brief psychosis.
There is no family history of mental illness. He had a comfortable childhood and a close family.
He spoke of his tertiary education.
He spoke of the sense of unreality during his long periods of isolation in a non‑association wing.
He had contemplated suicide but did not act on that.
He did not report any of the common symptoms of psychotic illness but he said one of his general practitioners had raised the possibility that he might have bipolar disorder.
The medical history is discussed.
That he did not use alcohol or drugs is discussed.
His position within his family is discussed, and his education.
Once again, his sister Fatima was consulted and she provided information. There is reference here in this report to his highly publicised wedding about which most of Sydney was aware of I would expect. She spoke of him sometimes feeling like he is invisible and more bionic, whereas once he was a shy person who would be embarrassed to be a show pony and would park his car in the next street and walk so as not to show‑off whatever the car might have been.
Mental state examination was in keeping with his circumstances and the topics discussed, there was no elation or depression, speech was normal and he was able to keep on the topic and sit quietly.
I note at p 6 of the report that on the first line there is a sentence beginning "There were abnormal patterns of speech". I believe Dr Nielssen has omitted the word 'no' between 'were' and 'abnormal' bearing in mind the preceding sentence.
He is assessed as having a high level of intelligence, diagnosed with bipolar mood disorder made on the basis of his account of the symptoms of mania and the corroborative information provided by his sister, including what was said to be a change from a modest humble person to who avoided attention to becoming a show-off.
An aspect of the report that troubled me was the opinion given by Dr Nielssen regarding the offender's detention in custody, on matters which he does not present an immediate danger to the community and in which he has been denied the opportunity to adequately prepare for Court hearings compared to the time and resources available to his opponents. This reflects the fact that Dr Nielssen did not and could not have known the full extent of the offender's misconduct as it evolved over these years.
His plans for the future as they were at the time were discussed.
The material that was provided from Justice Health comprised documents prepared upon each time a nurse or other practitioner saw him, and it is amongst this material where one finds reference to the narcissism to which I referred a moment ago. The documents provide value as a running sheet of reports attributed to him from time to time by those who attended upon him.
Dr Nielssen provided a further report on 23 September 2019. The history attributed to him on this occasion includes his representation that he realises now, or realised at that point, that he had been affected by bipolar disorder since at least 2012. This report traverses the history of proceedings, including the sentences for his electoral fraud, his confinement with non-association, his bankruptcy, his psychiatric history is discussed again and once again his sister was consulted. The bipolar mood disorder was diagnosed again on this occasion, made on the basis of an account of his symptoms of hypermania without delusional beliefs or of such a degree that would require a hospital admission. The assertions are supported by the information provided by his sister.
The doctor writes: Mr Mehajer's mood disorder is likely to have resulted in significant impairment in his ability to attend to complex legal documents to properly consider the effect of any legal advice provided to him, with the need to obtain independent advice.
I find that implausible in the circumstances, having had the opportunity to experience the capacity demonstrated by the offender throughout these proceedings.
There is the report from Dr Roberts traversing the same topics, leading to the conclusions he offers against the overview of his psychiatric history.
I referred earlier to the report provided by Dr Gordon Elliot which was tendered by consent.
Before I come to that, I will note that there is a report from psychologist, Ann-Marie De Santa Brigida, of 11 November 2023 including her qualifications. She writes sympathetically of the offender. She first assessed him in January 2019. He has not been separately interviewed for the purposes of this report according to the document. She refers to the proposition that he is suffering from a psychiatric disorder, namely, bipolar disorder, based upon her observation, which must be dependent upon the history given by the offender. The initial assessment followed that which was made by Dr Nielssen. This report appears to be with regard to an application for bail, because as at [2.1] she notes that if he is fortunate enough to be granted bail, he requires admission to a private psychiatric hospital for stabilisation of his condition.
There is an affidavit by Melissa Huseyin of 8 December 2023 which produces a table said to have been prepared from records accessed from the Department of Corrective Services, listing 236 days when he was restricted or in a full day lock‑in for the reasons that are provided in the document. He provided an affidavit of 17 April 2024 when the matter was before me for final argument and presentation of the last pieces of evidence. In this, he asserts that he had 800 days of his sentence under maximum security and in extremely onerous conditions, namely, solitary confinement. He has then listed at [12] the periods of time when he was in custody totalling, he said, 800 days or two years and two months. I noted in the course of argument that this did not sit comfortably with the custodial offences that are listed in the custodial record over the period of time he has been in gaol.
He represented in a further document that came to me today that he was held in circumstances, as I recall, for some 600 days where he was confined to the cell for 23 of 24 hours each day. It is pointed out on his behalf that the Crown was aware of this and did not seek the opportunity to cross-examine him and that I should accept, as uncontested, his confinement to that extent. I am not prepared to do so when I look at the objective evidence available - the custodial record. However, it is apparent that he has spent a significant period of time, the precise extent of which is not ascertainable on what I have, in which he has been limited in his movements within the custodial setting, which does involve hardship, which I accept, and I have brought that into account in the assessment of the punishment that he must suffer.
Turning to the report from Dr Elliot, I found this document helpful. It was conducted via video link on 27 February 2024 over 50 minutes. The process and purpose were explained to the offender. The report summarised the sentence assessment report to which I have referred. The sources of information included the judicial request for the psychiatric report which I provided on 11 December 2023, notes from his Court appearance on 8 December 2023, the Crown case statement for the fraud charges, but not the other listed charges, his criminal history, the sentence assessment report, the psychiatric report created by Dr Paul Pusey, clinical psychologist, to which I have referred, the report from Dr Nielssen on 13 June 2018, the further report from Dr Nielssen on 23 September 2019, a report by Dr John Roberts to which I have referred, the report prepared by Ms Ann-Marie De Santa Brigida and his electronic medical records, including consultations with Dr Claire Keating who assessed him on multiple occasions between 21 December 2020 through 3 June 2021.
The results of those consultations are discussed in quite some detail. There is reference to an assessment by Dr Antony Henderson and the most recent psychiatrist review by Dr Sam Nova Bethania. He recorded introductory information, the circumstances prior to his arrest, his recent progress and history and at [9] he told the doctor that he was in solitary confinement for over 600 days as a high-profile inmate, consistent with the material he forwarded to the Court this morning.
At [10], he is attributed with representations regarding the work that he has attending to buy-ups and his contact with his family and his exercise regime. In [11], Dr Elliot pressed him about the report that he suffered from agoraphobia, which was the proposition that led to the further delay in the proceedings so that it could be investigated.
He said that he first came across the term in a discussion with a mental health nurse when he was isolated in non-association. He eventually came to be cleared to the main prison population. He was anxious about being around other inmates and tended to remain in his cell rather than mix in the yard. He said the symptoms gradually eased with increasing exposure to the population and he was adapting to the environment of sharing. He said that other inmates had approached him and commented favourably as to how he presented in person compared to the media portrayal of him. He still wakes at night screaming, he said. He said, "I do have past trauma as well, but I don't like to talk about it because of the media."
The doctor noted that his account of his psychiatric history was broadly consistent with that documented from previous reports and that is then summarised. In [13], there is reference to Dr Nielssen, who became his treating psychiatrist, followed by Dr Henderson. There is reference at [16] to one episode of deliberate self-harm in 2017, on which he did not elaborate. I have no further information about that. At [18], he volunteered a history of early trauma which he did not wish to discuss in person and he said now that he regrets that Dr Roberts' report has been included in his brief. He wished to point out that any proceeds he receives from a compensation claim regarding this early abuse will be donated to a children's charity. The only reference I have to that is in this report.
A mental state examination revealed that there was no evidence of psychotic symptoms and he denied there were thoughts of self-harm. There were no features of an abnormally elevated mood and he did not appear to be pervasively depressed. He notes that his colleague and early mentor, Dr Nielssen, diagnosed the bipolar affective disorder based upon the self‑report by the offender and the information provided by his sister.
At [25] to [26] he expressed the view that when one analyses the documents that he has taken the trouble to review, the bipolar disorder diagnosis is not necessarily supported.
At [25] and following he wrote: "It is also now evident that custodial psychiatrists have viewed Mr Mehajer's diagnosis of bipolar disorder with increasing scepticism. Dr Keating has conducted repeated assessments over a six-month period and has observed on each occasion that there was no evidence of features of bipolar disorder, despite Mr Mehajer not being on treatment for the condition or on very low treatment. Dr Henderson, who has assessed Mr Mehajer, both in the community and in custody, also appears sceptical of the diagnosis. I further note that Dr Bethania did not consider that there were features of bipolar disorder. Each of the clinicians has avoided openly excluding the diagnosis in their entries. However, I note that they have resisted offering Mr Mehajer treatment for bipolar disorder. It is notable that the overall dynamic of these custodial assessments is the exact opposite of what would normally be encountered in people with bipolar disorder. Typically, people with the condition, particularly with those manic episodes of the illness, have a high level of denial of the illness and strenuously avoid treatment and consequently their treating psychiatrists have to go to great lengths, including using The Mental Health Act, to ensure they remain on treatment. This has clearly not been the case with Mr Mehajer. His consultations in custody have been notable for him pressing his diagnosis upon his assessing clinicians and demanding sedating medication to assist with sleep. I note on two occasions his custodial psychiatrists have relented to these requests and agreed to the prescription of sedating antidepressants; a treatment that would typically be avoided by a treating clinician if there were genuine concerns held that a person did have bipolar disorder, given the potential for precipitating a manic relapse with an unopposed antidepressant (i.e. given without a mood stabilising medication). At the time of my assessment Mr Mehajer did not display features of bipolar disorder. I note that he is now effectively been without treatment for the condition for close to three years in custody and he has not displayed any evidence of a relapse of the condition. As with other clinicians I was also sceptical of the diagnosis given his insistence upon it. As one example, his claim that he has been seeking lithium via diverted sources would be most unusual for a person with a bipolar disorder. At the end of the assessment, I was unconvinced regarding the diagnosis but have not categorically excluded it given this was a one off assessment conducted by video link. In regards to his diagnosis of PTSD and VDD, these were only briefly explored during the assessment and I must defer to my earlier colleagues regarding these diagnoses.
In the conclusions, Dr Elliott noted that the offender did not display symptoms of a mental illness as defined within the legislation. He was not pervasively depressed and there were no features of mood elevation or psychosis. There was no evidence of cognitive impairment. The diagnosis of bipolar disorder has been questioned. As detailed earlier his diagnosis of PTSD and VDD could be considered mental health impairments but he was not a mentally ill person at the time of the assessment. There is no reason to believe that he is a mentally ill person within the meaning of the legislation and there is no indication for any psychiatric medication at the time of this assessment.
Another matter that I have brought to account is that the offender was subject to strict bail conditions at those times when he was at large in the community. I am aware of them because of the occasions the matter came back before me when I was list judge at Parramatta when he was seeking to vary his bail which on many occasions I accommodated for him.
The submissions required amplification today with the fresh material that Mr Mehajer produced, articulating the effect of his close confinement, also advancing his expressions of regret which were qualified and did not extend to any acknowledgement of wrongdoing other than with regard to the offence to which he pleaded guilty before me in the summary matter pursuant to s 166 of the Criminal Procedure Act 1986.
I have already noted the facts surrounding the domestic violence offences and where they are on the scale of seriousness in my assessment. I agree with the Crown's submission that when assessing objective seriousness for the domestic violence offences they cannot be viewed independently from one another completely. They extended over a period of two years, the offending escalated in its seriousness and I agree with the observation that the context giving rise to the offences revealed a sense of entitlement and control that the offender believed he held over the victim and that there is this overarching theme throughout the relationship as was exposed in the course of the trial. I am reminded of the evidence she gave that she remained in the relationship over this period notwithstanding his behaviour because of the threats that he made, including against her mother and stepfather.
The assessment of the offence upon which Count One was brought, the punching of the victim in the car, involved a sustained attack over a trivial argument and was in the context of the erratic driving by the offender as she sat in the passenger seat of the vehicle, unable to defend herself from what he was doing.
In the offence charged in Count Two on the domestic violence indictment he accused her or blamed her for the loss of belongings, taken from his home or the home at Vaucluse when he was in custody, and the hand squeezing which led to the damage to her phone with the penetration of a shard of glass into her thumb. I have noted this was again a rather trivial matter that did not justify the response by the offender. The demands that he made to view the phone to see the identity of a person to whom she was texting is a further example of his efforts to exercise control and resort to a physical act thereafter.
Counts Three and Four where he dragged her into the laundry and held her against the wall and the threat to shoot her mother was again demonstrative of his sense of entitlement and control over her. This followed the contact he allegedly made with her former partner and his perception that she was interacting with him.
Count Five is the assault occasioning actual bodily harm and the subsequent suffocation charge. Again, the behaviour reflected his sense of entitlement and control that he felt he had over the victim.
The Crown correctly points to the fact that these episodes, aside from the episode in the car, when in her home, even though it was also the offender's home, is an aggravating factor, there was a circumstance of trust by reason of the relationship for which the Crown contends, he was subject to conditional liberty and he has a record of past antecedents, but that does not aggravate the objective seriousness of the offending or the penalties that ought to be imposed, it simply reflects that appropriate weight must be given to the considerations for assessment of prospects of rehabilitation and the need for denunciation.
The Crown submitted that the emotional harm caused by the offences was substantial. I do not apply that term as I earlier indicated.
With regard to mental health the Crown challenges the proposition that he can rely upon mental health in mitigation of the misconduct of which he has been found guilty. I am reminded of what the authorities say regarding these questions such as in Muldrock v R [2011] 244 CLR 120, what was said by Gleeson CJ in R v Engert (1995) 85 A Crim R 67 at p 71.
There is in my assessment insufficient evidence to draw a connection between what is said to have been a state of mental health and the misconduct upon which the offender engaged. He denies that there was any assault of the complainant in any form, including in terms of the offences charged on the indictment. As I noted previously, he is a complex individual. My perception of him, allowing him the benefit of the opinions offered, qualified with what was provided by Dr Elliott, is that he has a sense of entitlement, he does exhibit and has exhibited a measure of grandiosity in the way he goes about his life.
I do not accept that he can be shown to be impulsive as a consequence of all of that.
Over the years that I have seen him in these courts and in light of the representations attributed to him and histories gleaned in the course of the various assessments it is apparent that he is an intelligent man with the capacity to communicate orally and in writing. Indeed, my observation in the course of the trial where he represented himself was that he demonstrated a significant measure of skill in the conduct of those proceedings.
Whatever the reason for his attitudes, whether it be narcissism or just a failure to appreciate that he is obliged as we all are to observe societal rules, and that perhaps he does author his own harm in the attitudes that he allows to evolve, there is a need for him to have a further period on parole than might otherwise be the case upon the application of s 44 of the Crimes (Sentencing Procedure) Act 1999.
There are special circumstances in this case, not the least of which is that he is already subject to a sentence of imprisonment which must be brought to account to ensure that the overall sentence does not include a non-parole period greater than three‑quarters of the overall sentence which I have settled upon according to my perception of the totality of the misconduct. I have had the benefit of reading the material in the matter before Zahra SC DCJ. I have not brought to account his Honour's views of the offender; it was not appropriate to do so in my view; but I have looked at the material that before that judge for his Honour's determination of sentence. I believe having brought that to account.
I have settled on an overall sentence which when joined with the sentence by Zahra SC DCJ in partial accumulation of it that I will impose a sentence in the aggregate which reflects all of his offending without crushing him and taking away from him the opportunity for rehabilitation if he wishes to take it up.
I am not prepared to find that he has good prospects of rehabilitation. I find that he certainly has the capacity to pursue rehabilitation if he can develop an attitude that allows that to occur.
There is no contrition or remorse to which he can point in in any of the offences and after the trials in any meaningful sense.
All of the aspects of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act are engaged. There must be general deterrence in each case particularly in the domestic violence case. There must be recognition of the harm that was involved in the commission of all of these offences. The offender's conduct must be denounced across the spectrum. He must suffer what is appropriate punishment but with an eye upon the need for rehabilitation and specific deterrence. No sentences other than imprisonment are appropriate for any of these offences and that must be for sentences that are served full-time.

The Sentence

I confirm that he is convicted of each of these offences.
I have calculated the sentences and reduced them to orders with graphs, and I will make copies available for the parties to save the need to write them down, and I will have one of these for inclusion on the file.
The orders are made, noting that the offender is convicted of each of the offences of which he has been found guilty at trial and the related offence to which he pleaded guilty before me, pursuant to s 166 Criminal Procedure Act 1986. I have decided to impose an aggregate sentence of imprisonment.
The aggregate sentence I impose consists of a non-parole period of three years and six months commencing from 19 January 2022 with a head sentence of seven years and nine months.
The offender will be eligible to be released to parole on 18 July 2025.
The sentences that would have been imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are:
For the fraud offence, Count One, a sentence of two years.
For the fraud offence, Count Two, a sentence of two years.
For the fraud offence, Count Three, a sentence of two years.
For the fraud offence, Count Four, a sentence of two years.
Were I imposing an aggregate sentence in respect of those matters only it would have been a sentence of two years and nine months.
For the offence of assault, Count One on the domestic violence indictment a sentence would have been one year two months.
For Count Two, a sentence of one year four months.
For Count Three, a sentence of one year two months.
For Count Four, a sentence of two years three months.
For Count Five, a sentence of two years, and
For Count Seven, a sentence of five years, and
For the related offence, a sentence of nine months.
Thus the offender has a non-parole period of three years and six months expiring on 18 July 2025 with a head sentence of seven years nine months expiring on 18 October 2029.
I should note that in the time that I had available to me today, I have not referred chapter and verse to all of the content of all of the medical reports and material that had been presented to me in the course of this matter, including what came to me this morning. It may be accepted that I have read it all carefully and brought all that was said to account, and I believe I have reflected the information in the judgment that I have provided.

Amendments 02 October 2024 - Noted that the matters that were listed for trial for the protection of which the non-publication order was made are now proceeding on pleas of guilty upon arraignment and the need of the non-publication order has evaporated. Catchwords have been unredacted. 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: 02 October 2024

At a glance

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Judgment (21 paragraphs)

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Legislation Cited (4)

Cases Cited (9)

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