Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163 Hearing dates: 30 October 2019; 31 October 2019 Date of orders: 15 July 2020 Decision date: 15 July 2020 Before: Bathurst CJ at [1]; Hoeben CJ at CL at [5]; Johnson J at [324] Decision: Conviction appeals: (1) Leave to appeal against conviction be granted. (2) For Mumtaz Qaumi there be a verdict of acquittal entered in respect of Counts 9 and 18. (3) For Farhad Qaumi there be a verdict of acquittal entered in respect of Count 18. (4) Otherwise, for Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi the appeals against conviction be dismissed. Sentence appeals: Farhad Qaumi: (a) grant leave to appeal against sentence; (b) quash the aggregate sentence imposed on 16 June 2017; (c) in its place, sentence Farhad Qaumi to an aggregate sentence of imprisonment for 58 years, comprising a non-parole period of 42 years commencing on 9 January 2014 and expiring on 8 January 2056 with a balance of term of 16 years commencing on 9 January 2056 and expiring on 8 January 2072; (d) the earliest date upon which Farhad Qaumi will be eligible for release on parole is 9 January 2056. Mumtaz Qaumi: (a) grant leave to appeal against sentence; (b) quash the aggregate sentence imposed on 16 June 2017; (c) in its place, sentence Mumtaz Qaumi to an aggregate sentence of imprisonment for 46 years, comprising a non-parole period of 33 years commencing on 9 December 2014 and expiring on 8 December 2047 with a balance of term of 13 years commencing on 9 December 2047 and expiring on 8 December 2060; (d) the earliest date upon which Mumtaz Qaumi will be eligible for release on parole is 9 December 2047. Jamil Qaumi: (a) grant leave to appeal against sentence; (b) appeal dismissed. Catchwords: CRIMINAL LAW – conviction appeals – gangland violence – gun violence – Brothers for Life (BFL) – spate of shootings directed at rival chapter of BFL – wanton lawlessness – hit list – series of attempted murders – shooting in or near people's homes and public places – multiple victims – principles applying to joint criminal enterprise and extended joint criminal enterprise – whether evidence of involvement in such enterprises sufficient to establish liability – Crown case dependent on evidence of "roll over" witnesses – conviction appeals dismissed except for three counts. CRIMINAL LAW – sentence appeals – applicants sentenced for range of serious offences arising from gangland violence – Farhad Qaumi and Mumtaz Qaumi also sentenced for murder – cold blooded contract killing – aggregate sentence imposed for each applicant – sentencing Judge took into account incorrect standard non-parole periods for some counts – error capable of affecting aggregate sentence for each applicant – whether disparity between the indicative sentences for Farhad Qaumi and Mumtaz Qaumi and that nominated for a co-offender for murder offence – reasonable explanations for different indicative sentences for murder offence – no foundation for legitimate grievance arising from differences between indicative sentences – whether sentencing Judge erred in assessment of objective seriousness of some counts – error not established – where Farhad Qaumi (one count) and Mumtaz Qaumi (two counts) acquitted on appeal on some counts – necessary to re-consider aggregate sentence for each applicant – lesser aggregate sentences for Farhad Qaumi and Mumtaz Qaumi warranted to reflect acquittal on some counts – Farhad Qaumi and Mumtaz Qaumi re-sentenced – lesser sentence for Jamil Qaumi not warranted – sentence appeal of Jamil Qaumi dismissed. Legislation Cited: Crimes Act 1900 (NSW) – ss 18(1)(a), 24, 26, 29, 33(1)(b), 93G(1)(b), 93T(4A) Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3A, 21A, 53A, 54B(4), 61 Criminal Appeal Act 1912 (NSW) – s 6(3) Drug Misuse and Trafficking Act 1985 (NSW) – ss 25, 33(3)(a) Evidence Act 1995 (NSW) – ss 128, 164, 165 Firearms Act 1996 (NSW) – ss 4, 7(1) Cases Cited: Aouad v R; El-Zeyat v R (2011) 207 A Crim R 411; [2011] NSWCCA 61 AB v R [2014] NSWCCA 31 Battersby v R [2018] NSWCCA 141 Chamon v R [2020] NSWCCA 112 Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R (2011) 209 A Crim R 424; [2011] NSWCCA 62 Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 El-Zeyat v R; Aouad v R; Osman v R [2015] NSWCCA 196 Giang v R [2017] NSWCCA 25 House v The King (1936) 55 CLR 499; [1936] HCA 40 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Kanaan and Ors v R [2006] NSWCCA 109 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Maxwell v R [2020] NSWCCA 94 McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 Portelli v R [2018] NSWCCA 28 R v Brooks [2012] NSWSC 505 R v Burnes [2007] NSWSC 298 R v Chandler; Chandler v R [2012] NSWCCA 135 R v Clark [2007] NSWSC 954 R v Clark (No 3) [2008] NSWSC 795 R v Darwiche and Ors [2006] NSWSC 1167 R v Farhad Qaumi; Mumtaz Qaumi and Jamil Qaumi (Sentence) [2017] NSWSC 774 R v FQ, Court of Criminal Appeal (NSW) 17 June 1998, unrep R v Kanaan and Ors [2002] NSWSC 774 R v May (No 7) [2008] NSWSC 971 R v NK (No 3) [2015] NSWSC 1257 R v Qaumi and Qaumi (No 12) [2017] NSWSC 134 R v Qaumi and Others (No 58) [2016] NSWSC 1158 R v Qaumi and Others (No 60) [2016] NSWSC 1160 R v Ryan and Coulter [2011] NSWSC 1249 Rae v R [2011] NSWCCA 211 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Sutton v R [2016] NSWCCA 249 Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 Tuivaga v R [2015] NSWCCA 145 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: Farhad Aamad Qaumi – Applicant Mumtaz Ahmed Qaumi – Applicant Jamil Ahmad Qaumi – Applicant Regina – Respondent Crown Representation: Counsel: J Stratton SC/M Curry – Applicant Farhad Qaumi I Lloyd QC/N Carroll – Applicant Mumtaz Qaumi M Ramage QC/N Carroll – Applicant Jamil Qaumi E Balodis – Respondent Crown Solicitors: Matouk Joyner Lawyers – Applicant Farhad Qaumi George Sten & Co – Applicant Mumtaz Qaumi Bannister Lawyers – Applicant Jamil Qaumi Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2014/315252 (Farhad Qaumi) 2014/06813 (Mumtaz Qaumi) 2013/336086; 2014/18164; 2014/315253 (Jamal Qaumi) Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), until further order of the Court, there is to be no disclosure or publication in connection with these proceedings of the names of witnesses A, C, E, J, K, L, M or any information likely to lead to the identification of those witnesses. Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Farhad Qaumi; Mumtaz Qaumi and Jamil Qaumi (Sentence) [2017] NSWSC 774 Date of Decision: 16 June 2017 Before: Hamill J File Number(s): 2014/315252 (Farhad Qaumi) 2014/06813 (Mumtaz Qaumi) 2013/336086; 2014/18164; 2014/315253 (Jamal Qaumi) JUDGMENT 1. BATHURST CJ: I have had the advantage of reading the judgments of Hoeben CJ at CL and Johnson J in draft. 2. So far as the conviction appeals are concerned, I agree with the orders proposed by Hoeben CJ at CL that the appeal by Farhad Qaumi against his conviction on count 18 and the appeal by Mumtaz Qaumi against his conviction on counts 9 and 18 be allowed but the conviction appeals otherwise be dismissed. I also agree with his Honour's reasons for reaching this conclusion. 3. I should indicate I have conducted my own review of the evidence as a result of which I have concluded it was open to the jury in the sense described in authorities such as M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 to reach a verdict of guilty on those counts in respect of which the appeal against conviction has been dismissed. 4. So far as the sentence appeals are concerned, I agree with the orders proposed by Johnson J for the reasons given by him. 5. HOEBEN CJ at CL: Background On 4 April 2016, three brothers, Farhad Qaumi (Farhad), Mumtaz Qaumi (Mumtaz) and Jamil Qaumi (Jamil) (the applicants) with two others were arraigned before Hamill J and a jury of 15. There were 24 charges on the first indictment and one charge on the second indictment. All five accused entered pleas of not guilty. The Crown case proceeded for 20 weeks from 4 April 2016 until 18 August 2016. A number of "roll-over witnesses" were called in the Crown case. These witnesses have been referred to by their pseudonyms used in the trial. (A list identifying those witnesses is marked "A" and is confidential. It will be made available to the parties only.) 1. A summary of the charges brought against the Qaumi brothers and the outcome is as follows: Count 1 – murder of Mahmoud Hamzy – each found guilty of manslaughter. Count 2 – cause grievous bodily harm to Omar Ajaj with intent to cause grievous bodily harm – each found guilty. Count 3 – conspiracy to murder Mohammed Hamzy – each found guilty. Count 4 – Solicit known persons to murder Michael Odisho – each found guilty. Count 5 – Shoot at Michael Odisho with intent to murder – each found guilty. Count 7 – Solicit Mohammed Kalal and other known persons to murder Masood Zakaria – Farhad and Jamil found guilty. Hung jury for Mumtaz. Count 8 – Cause grievous bodily harm to Masood Zakaria with intent to murder Masood Zakaria – each found not guilty. Count 9 – Cause grievous bodily harm to Masood Zakaria with intent to do grievous bodily harm to another person – each found guilty. Count 10 – Solicit Mohammed Kalal and another known person to murder Abdul Abu-Mahmoud – Mumtaz and Jamil found guilty. Directed verdict of not guilty for Farhad. Count 11 – Shoot at Abdul Abu-Mahmoud with intent to murder – Mumtaz and Jamil found guilty. Directed verdict of not guilty for Farhad. Count 13 – Shoot at Khalil Khalil with intent to murder – Mumtaz and Jamil found guilty. Directed verdict of not guilty for Farhad. Count 15 – Shoot at Hassan Soueid with intent to murder – Mumtaz and Jamil found guilty. Directed verdict of not guilty for Farhad. Count 18 – In the course of an organised criminal activity, fired a firearm at a dwelling house with reckless disregard for the safety of others – Farhad and Mumtaz found guilty. Count 19 – Possess a .45 pistol – Farhad found guilty. Count 20 – Supply of a large commercial quantity of a prohibited drug – Farhad, Mumtaz and Jamil found guilty. Count 21 – Possession of a shotgun – Farhad, Mumtaz and Jamil found guilty. Count 22 – Possession of a .38 revolver – Farhad, Mumtaz and Jamil found guilty. Count 23 – Direct activities of a criminal group – Farhad, Mumtaz and Jamil found guilty. Count 2 on the second indictment – possession of a .38 snub-nose revolver – Farhad found guilty. 1. The various counts can be conveniently grouped as follows: 29 October 2013 Hamzy shooting Revesby Heights Counts 1, 2, 3 3 November 2013 Odisho shooting Winston Hills Counts 4, 5, 6 4 November 2013 Zakaria shooting Blacktown Counts 7, 8, 9 7 November 2013 Chokolatta shooting Bankstown Counts 10, 11, 13, 15 29 November 2013 Elkadi shooting Greenacre Count 18 October – December 2013 Supply prohibited drugs Sydney Count 20 July – December 2013 Possess firearms Sydney Counts 19, 21, 22 and Count 2 on the second indictment July 2013 – January 2014 Criminal group Sydney Count 23 1. The Crown case can be briefly summarised. Farhad Qaumi was alleged to have been the leader of a criminal organisation, the Brothers for Life (BFL) Blacktown chapter. On 28 October 2013, he was told that Mohammed Hamzy (also known as "Little Crazy" or "LC"), the leader of the Bankstown chapter of the BFL was planning to kill him and had attempted to do so in the recent past. Farhad Qaumi directed other members of his group to kill Mohammed Hamzy. However, they in fact killed his cousin, Mahmoud Hamzy and wounded Omar Ajaj. 2. Subsequently on 2 November 2013, some members of the Blacktown BFL attended Star City Casino and Farhad Qaumi was informed that he was suspected of arranging the attempted killing of Mohammed Hamzy. The Crown case was that after the group left the Casino, some of them including the applicants, Witness J and Witness L met in a park and Farhad Qaumi gave instructions for a number of members of Mohammed Hamzy's group to be shot. The names mentioned of people to be shot included Omar Ajaj, Michael Odisho, Masood Zakaria and Khaled Hamzy. 3. In the days that followed, members of the applicants' group shot Michael Odisho (on 3 November 2013). On 4 November 2013, they attempted to shoot Masood Zakaria but instead shot his sister, H. On 7 November 2013, there was a shooting at the Chokolatta Café Bankstown. (There was a directed verdict of not guilty in relation to Farhad Qaumi for the counts arising from this shooting.) On 29 November 2013, there was a shooting at Greenacre Road, Greenacre. It was alleged that Farhad and Mumtaz Qaumi had given instructions for the house of the mother of Mohammed Hamzy to be shot at, but the house which was shot at was a different house in the same street. The conviction appeals 1. There was no appeal pressed by the applicants against the convictions on Counts 1-3. There was no appeal by Farhad Qaumi from his conviction on Count 2 of the second indictment. There were appeals from the convictions for Counts 4, 5, 7, 9, 18, 19, 20, 21 and 22 by Farhad Qaumi. There were appeals from the convictions for Counts 4, 5, 9, 10, 11, 13, 15, 18, 20, 21, 22 and 23 by Mumtaz Qaumi. There were appeals from the convictions for Counts 4, 5, 7, 9, 13, 15, 20, 21 and 22 by Jamil Qaumi. 2. The ground of appeal in each case was that the verdicts of guilty for those counts in respect of each applicant were unreasonable and could not be supported having regard to the evidence. Applicable principles 1. The applicants relied upon the statements of principle in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 where the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said at 493: "Where notwithstanding that as a matter of law there is evidence to sustain a verdict a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question, the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary the Court must pay full regard to those considerations." 1. The plurality continued at 494-495: "… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618-619; Chidiac v The Queen [1991] HCA 4 (1991) 171 CLR 432 at 443-444; [1991] HCA 4) . In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen at 443, 451, 458, 461-462). Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above." 1. The Crown did not take issue with the principles relied on by the applicants. In addition, the Crown relied upon Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 where Hayne J (with whom Gleeson CJ and Heydon J agreed) said at [113]: "113 It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue …" It should be noted that in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 at [45], the Court stated that Libke did not depart from M. 1. The Crown also relied upon the following statement of principle from The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]: "65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. 66 With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty"." The background to the shootings 1. Although there is no longer an active conviction appeal by any of the applicants in respect of Counts 1-3, in order to understand the evidence of the shootings, which are the subject of this appeal, it is necessary to understand the background to the first shooting, which resulted in the killing of Mahmoud Hamzy and the events leading up to it. This provides the context for what subsequently occurred. 2. The Crown case was that the applicants were members of the Blacktown chapter of the BFL. Farhad Qaumi was the leader of the chapter, Mumtaz Qaumi was the second in command and Jamil Qaumi was third in command and the "enforcer" for the chapter at the time of the shootings. There was a considerable body of evidence to support the leadership role of the applicants and it was well open to the jury to make that finding. The Crown case was that BFL Blacktown was a criminal organisation which made money from criminal activities and in particular, the sale of drugs and stand over activity. The events which led to the killing by shooting of Mahmoud Hamzy began with a series of meetings on the day of the shooting, 28 October 2013. The meeting on 28 October 2013 – Anytime Fitness 1. Witness J gave evidence that on 28 October 2013 on the way to the "Anytime Fitness" gym, he and Farhad Qaumi saw Mohammed Hamzy getting out of his Maserati near "Wafflelicious", a fast food outlet. He said that he noticed that Mohammed Hamzy appeared to be a bit shocked to see them. 2. Witness M, while not being a member of the BFL organisation, was familiar with both the Blacktown chapter and the Bankstown chapter. The reliability of her evidence was heavily challenged in the trial and warnings were given by the trial judge about her reliability. In this appeal, the Crown expressly eschewed reliance upon the evidence of Witness M unless that evidence was corroborated. 3. Witness M gave evidence that on 28 October 2013, she was driving her mother to a barbeque when she saw Farhad Qaumi outside the Anytime Fitness gym at Parramatta. Farhad Qaumi signalled her to pull over which she did. Farhad Qaumi told her to drop her mother off at the barbeque and to come back. 4. Witness M gave evidence that she had spoken with her ex-husband the day before and that he had told her to tell Farhad to be careful because "LC was after him". She told Farhad this and his response was "I'm going to get him anyway but this gives me an excuse". She said that Farhad Qaumi called Jamil Qaumi over and then Witness J and repeated to them what her ex-husband had told her. 5. Witness L said that he and Mohammed Kalal went to the gym at Parramatta to meet up with Farhad Qaumi and Witness J. He said that Farhad was talking with Witness M and Witness J for about half an hour outside the gym. He did not hear the conversation but he said that Farhad appeared to be getting angry. 6. Witness J gave an account of the meeting at Anytime Fitness which was different from that given by Witness M. He said that Witness M turned up at Anytime Fitness and had a conversation with Farhad Qaumi for about five to ten minutes which was too far away for him to hear. Farhad Qaumi then told him to "come over and hear this". In cross-examination, Witness J said that he did not see Witness M get out of any car and that the conversation was on the footpath. Witness M said that she had received information from a person called "H" that Mohammed Hamzy had put a contract out for someone to kill Farhad Qaumi. Witness J pointed out that Mohammed Hamzy was under investigation by police for murder so he would be locked up soon. 7. Witness J gave more detail about this conversation. He agreed that Witness M said that she had been told that $150,000 had been offered to Mustafa Mariam to murder Farhad Qaumi. He agreed that Farhad Qaumi appeared very concerned and alarmed by this information. 8. According to Witness J, Witness M also told Farhad Qaumi about an earlier attempt on his life. She described an incident in which Mohammed Hamzy had been waiting at a McDonalds outlet with some associates preparing to kill Farhad Qaumi. She said that she was not actually present but obtained this information from sources within the Bankstown BFL. She was able to describe the persons Farhad Qaumi was with at the time, what he was wearing and what car he was driving. (These were apparently details which could only be supplied by someone who had actually been there.) The plan had been to kill Farhad Qaumi that day but it was not carried out, either because the police had been seen driving past or because Farhad Qaumi was accompanied by friends. 9. Earlier in his evidence, Witness J referred to the level of detail which Witness M was able to give about the incident. He said: "Q. Was that something [Witness M] was saying? A. Yeah, yeah she described the particular time. She even described what clothes Farhad was wearing on the day. So that's why Farhad believed her story." (T.3954-3955, 30.6.2016) 1. All those details were put to Witness M which she denied. She said that in effect her meeting up with Farhad Qaumi was a chance meeting. Witness M denied telling Farhad Qaumi that Mohammed Hamzy had been with some of his crew three days before on a mission to murder him and denied telling Farhad Qaumi that Mustafa Mariam had accepted Mohammed Hamzy's contract to kill him. 2. Jamil Qaumi's account of what Witness M said supported Witness J's account. Jamil Qaumi said that Farhad Qaumi believed Witness M. 3. Witness L gave evidence that Witness M had arrived at Granville Park, where he was with Farhad Qaumi, Mumtaz Qaumi and Witness J. Farhad Qaumi asked Witness M to repeat what she had said to him earlier. She told the group that "LC" had been around the corner to "knock" or murder Farhad Qaumi. 4. Inspector Brown, the officer in charge of the investigation into these matters, gave evidence that Mohammed Hamzy was charged with the murder of another member of the BFL and that police thought that the threat to Farhad Qaumi was sufficiently believable for officers to attend his home on the Central Coast on 29 October 2013 and warn him that there was a credible death threat against him. 5. Following the meeting at Anytime Fitness, Witness J said that he and Farhad Qaumi went to a location near the Armani Restaurant where other members of the group were called. He said that while they were at that location, they saw Masood Zakaria and Michael Odisho. Witness L gave evidence that Farhad Qaumi told him that Witness M heard from her ex-husband that "the Lebbos wanted to kill him". Witness L said that while at the Armani Restaurant, they bumped into Michael Odisho, Masood Zakaria, a "Turkish guy" and another man whom he did not know. They were all from the Bankstown chapter of the BFL. According to Witness L, Farhad Qaumi told him that Witness M had told him about "LC's" earlier attempt to kill him. 6. Witness M gave evidence that a meeting was arranged at a park in Granville. She said that Farhad, Mumtaz, Jamil, Witness J and Witness L were present. She said that Farhad told her to tell the group what her ex-husband had told her. Witness M said that at that meeting Farhad Qaumi gave directions about shooting "LC" and as to who was to do the shooting, including ordering her to be the driver. Witness M said that she initially refused. The effect of her evidence was that she only agreed to become a driver after she was threatened by Farhad. She said that "I'm pretty sure he said my mum won't have a daughter anymore if I don't and that he would kill me" (T.2231, 25.5.2016). 7. It was submitted, on behalf of Farhad, that had such a threat been made by him she would have had a very clear memory of it. 8. Witness J also gave evidence about the meeting at Granville. His account was different from that of Witness M. He said that the three Qaumi brothers, Witness L and Nasser Zarshoy were present. Later, Witness M arrived. She repeated that Mohammed Hamzy was going to pay another guy to kill Farhad Qaumi. Farhad Qaumi asked other members of the group to kill Mohammed Hamzy and he assigned various roles to members of the group. 9. In his evidence in chief, Witness J said that Farhad Qaumi told him: "Yeah, pretty much run in the garage and shoot whoever is in there". In cross-examination, it was put to him that Farhad Qaumi simply said that he wanted people to get Mohammed Hamzy. Witness J replied "Can't recall". 10. In cross-examination, Witness J agreed that Farhad Qaumi and Mumtaz Qaumi had too much "heat on them from the police" to go to the shooting. Witness J said that initially he was asked to be the driver when the attempt to kill Mohammed Hamzy was made. Witness J said that when he declined to be the driver, Witness M said "Oh, I'd rather go than him because he's too weak". She said something like "Yeah, all right, a hundred per cent I'll do it". She said "I'll prove my genuine, like how genuine I am". 11. Witness L gave evidence of the meeting at the park in Granville. He said that it was there that Farhad Qaumi asked Witness M to repeat what she had been told. Witness L's account was very similar to that of Witness J. He gave a similar account to that of Witness J of Witness M describing a failed attempt to murder Farhad Qaumi by Mohammed Hamzy. Witness L said that she volunteered to be the driver. 12. It is not necessary to go into the detail of the shooting of Mahmoud Hamzy. Briefly stated, Witness M drove three people, including Witness L and Jamil Qaumi, each of whom was armed, to his home. The three shooters entered the garage and fired shots. Mohammed Hamzy escaped but his cousin, Mahmoud Hamzy, was killed and Omar Ajaj, a member of the Bankstown BFL, was wounded. The Casino meeting on 2 November 2013 1. There was no dispute that on the night of 2 November 2013 the applicants with Witness J, Witness C, Witness I, Witness D and Witness L attended the Star City Casino. Their movements while there were recorded on CCTV. Farhad Qaumi had conversations with Ahmed Glebe and "Stretch" who were thought to be associated with the Bankstown BFL. Witness L saw the encounter between Farhad Qaumi on the one hand and Ahmed Glebe and "Stretch" on the other. Witness L said that he heard Farhad Qaumi deny that he had anything to do with the Hamzy shooting. 2. Witness I gave evidence that after Farhad Qaumi spoke to Ahmed Glebe and "Stretch" he appeared upset and angry. There was evidence that in these conversations they told Farhad Qaumi that he was suspected of being behind the Hamzy killing. The meeting after leaving the Casino on 2 November 2013 1. What was very much in dispute was whether or not there was a meeting in the vicinity of the Royal Botanic Gardens immediately following the departure from the Casino. Witness L gave evidence about a meeting which took place after they left the Casino in the vicinity of the Royal Botanic Gardens. He said that Farhad Qaumi, Mumtaz Qaumi, Witness J and himself attended that meeting while Jamil Qaumi went to drop someone else off. 2. Witness L gave this evidence: "Q. Where did you go? A. From there we went to the - like it was like a park area, we went through there. We parked the car, we left everything in the car so we walk up, we start talking. Q. Had you been to this park before? A. No. Q. Where was this park? A. I wouldn't have a clue. Q. Was it far from the casino? A. Little bit of driving. Q. So who was at that location? A. The four of us, we were walking. Then Farhad started talking. Q. So the four of you? A. Yes. Q. The same four being Farhad, Mumtaz? A. [Witness J] and myself. Q. [Witness J] and yourself? A. Yes. Q. You said Farhad started talking? A. Yes. Q. What do you recall? A. I remember him saying – he was talking about Ahmed Glebe, he's telling him, "Be careful", he goes to him, "Be careful". He goes – I can't say the other bit, you know. Then he goes, "Oh, they going to retaliate on us, you know what I mean, so we got to do something about it". Then he seen people walking their dogs and all stuff, he goes, "Let's get out of here, let's get out of here", so we jump in the car again, we took off somewhere else. That was next to harbour, like water everywhere, so we went down the stairs and started talking there. Q. Was it far from this – you were in this park? A. Yes. Q. You then drove, went from that park to another location near the harbour you're talking about? A. Yes. Q. Was it far from the park? A. I didn't take time but it was a little bit of driving we got there. Q. Who is present at this location? A. Same people again." (T.2827.8-2828.11, 8.6.2016) 1. According to Witness L, at this meeting of the four men Farhad Qaumi announced what effectively was a roll-call of people to be shot. Witness L gave this evidence: "Q. What names did they say? A. He wanted to get LC again but he was under the police custody after the time, I don't know, they put him in a hotel or somewhere but he wanted to still get him. Then he wanted to get LC's brother. He wanted to get Omar Ajaj again. He wanted to get Mikey. Q. Who's Mikey? A. Michael Odisho. Then Masood, I don't know Zakaria, whatever his name is, then he wanted to get Khaled Hamzy, this other bloke, I forget his name at the moment he had the money. He goes "We have to get him too 'cos he's gonna put up the money for people to come and get us". That's roughly what I remember. (T.2828-9, 8.6.2016) … Q. Was there anything further said about that? A. Yes. Basically after that he made three shooting teams after that. Q. Is that something that was said? A. Yes because to me Mohammed Zarshoy and Jamil Qaumi is the second shooting team. The first shooting team is going to be [Witness C], [Witness D] and [Witness I] and the third shooting team is going to be Farhad Qaumi, Mumtaz Qaumi and [Witness J]. Q. All right. Was there further conversation? A. So the conversation was in case like the first one goes under we got the backup team and then if something happened to us then we'd got the last team. And he goes "I'm going to put my vest on, bullet proof vest, I'm going to get my scares. I'm going to run into houses, I'm going to start shooting at them." (T.2829, 8.6.2016) 1. The applicants submitted that this alleged meeting would be sufficiently memorable for a witness to have some memory of where he was when this conversation took place. They submitted that Witness L was given every opportunity to describe where he was when the meeting took place. They submitted that he was unable to do so and that his answers were vague and unhelpful. 2. The evidence of Witness L thus criticised was as follows: "Q. You say there was a meeting at a park, is that right? A. Yes. Q. How far did you have to drive from the Casino to get to the park? A. Not sure. Q. Well, was it a few minutes or a few hours or something in between? A. No, no, it wouldn't be few hours. Q. From the park, could you see the Harbour Bridge? A. No. Q. I beg your pardon? A. I don't think so. Q. Could you see the harbour? A. I don't think so. Q. Were you on the north side or the south side of the harbour? A. I'm not good at the city. I don't know. Q. Were you on the east side or the west side of the Harbour Bridge? A. I wouldn't have a clue. Q. Were you still in the Central Business District? A. I wouldn't have a clue. Q. Is it the case that you can't give us the faintest idea in the city, the greater City of Sydney where this park was, is that your position? A. Because I don't go to city. How am I meant to know?" (T.2937.29-2938.8, 9.6.2016) "Q. Yesterday I was asking you about the location of the park, is that right? A. Yes. Q. You were unable to tell us if it was on the north or south side of the harbour, is that right? A. As I said, I don't know the city. Q. Well, have you ever been on the Harbour Bridge? A. Which one is the Harbour Bridge. The one that the car goes over? Q. The Harbour Bridge, it is at the north end of the Central Business District of Sydney, takes cars and trains to North Sydney, are you familiar with that? A. Yes." (T.2967.36, 10.6.2016) "Q. That night, did you cross the Harbour Bridge? A. Can't recall. Q. Can't remember? A. Yes. Q. Do you say this park was in a suburb near the city? A. Yes. Near the casino. Q. It was near the casino? A. Yes. Q. Was it near the harbour? A. I don't know. Q. Could you see the harbour from the park? A. Not from the park. Q. Could you see the Opera House? A. No." (T.2968.6, 10.6.2016) "Q. How long did it take you to get from the carpark of the Casino to this park? A. Not far. Q. How long? A. I don't know, I didn't take time. Q. Did it take you about five minutes? A. No, more. Q. How long did you stay at the park? A. I don't know. Under half an hour, under an hour. Q. Did you go somewhere after you left the park? A. Yes, next to the water. Q. So you went to the harbour, is that right? A. Not the harbour. It was like next to a water sort of thing but you can see the harbour from far distance. Q. When you say it was near the water, are you saying it was near a river or a lake? A. It was like a stairs sort of thing. We went down, there was like a concrete wall sort of thing but over it was the water. And you could see the far distant Harbour Bridge. Q. What was the water that you could see? Was it the harbour or was it something else? A. Harbour. Q. So you say you were near the harbour? A. Yes." (T.2968-2969.21, 10.6.2016) 1. The applicants submitted that Witness L was being deliberately vague so that he could avoid being caught out. They submitted that the meeting which he described could not have happened at the Royal Botanic Gardens because there was evidence that the gates are locked at night and Witness L said that he did not have to climb over a fence. They submitted that if he were on the west side of the Royal Botanic Gardens, he would have had a good view of the Sydney Harbour Bridge. 2. The applicants submitted that while there was no CCTV coverage of the purported meeting after the visit to the Casino, there was evidence of cars driven by members of the group out of the Casino carpark. Witness L said that he left the carpark in a car driven by Mumtaz Qaumi. The applicants challenged that evidence because CCTV showed Mumtaz Qaumi driving a white car with no passenger. There was a red car driven by Witness J with no passenger. Farhad Qaumi was shown driving a white RAV 4 with someone in the passenger seat, who did not appear to be Witness L. Jamil Qaumi was shown driving a silver Honda Accord with a passenger who (it was submitted) was Witness L. Witness L denied that he was the passenger in the car driven by Jamil Qaumi. 3. Witness L denied that he was driven from the Casino by Jamil Qaumi and denied that he and Jamil Qaumi stopped to have a meat pie and then Jamil Qaumi drove him home. Witness L denied the proposition that no meeting took place after he left the Casino (T.2967, 10.6.2016) 4. The applicants submitted that Witness L was very vague about times. He agreed that when he got home it was "pretty late", "about 4.30, 5 o'clock". Witness L could not remember how he got home after the alleged meeting which (it was submitted) had it occurred, would have been memorable. 5. Witness L volunteered that it might have been Witness J who drove him home. (It was common ground that Witness L did not drive, was unlicensed and did not own a car.) Witness L could not remember ringing Witness J to pick him up. 6. The applicants noted that when Witness J was asked in cross-examination whether he attended a meeting after leaving the Casino, he responded that he "did not recall"(T.4147, 5.7.2016). The applicants submitted that if Witness J had been present at the meeting, as described by Witness L, he would certainly have remembered it. 7. Witness D said that after the Casino meeting, Mumtaz Qaumi took him to North Sydney Railway Station on his way back to the Central Coast. Jamil Qaumi gave evidence that he left the Casino with Witness L and that they had a pie at Harrys Café de Wheels and then he drove him home. 8. The applicants challenged the reliance which the Crown had placed on telephone records and telephone signals received by cell towers. They referred to evidence from Mr Chang from Optus that the maps which he produced were maps of "probable cell tower coverage" rather than "possible cell tower coverage". 9. Mr Chang agreed that topography was relevant to which tower would be the tower with the strongest signal and that in the CBD the topography was very complex because of the number of large buildings. He explained that the mathematical model used by Optus did not take into account individual buildings but simply used an "averaging system" for the model. Mr Chang agreed that because the signal travels more strongly over open water, telephone records might record a signal as being on the north side of the harbour when it was in fact on the south side. Mr Chang agreed that the diagrams of probable cell tower coverage were a very rough guide to the location of telephones. 10. The Crown called Jonas O'Brien from Vodafone on the same topic. He said that Vodafone used an "averaging" process for their mathematical models about cell tower coverage. Unlike Mr Chang, he was not prepared to agree that the diagrams were only a rough guide to the location of telephones but did agree that the maps only indicated the most probable area from which the call was made. He agreed that it was possible for a call which was made outside the area to connect with a tower associated with the area. 11. The reference to diagrams was a reference to the colour coded maps produced by Messrs Chang and O'Brien in which the coloured areas indicated cell tower coverage. The areas coloured blue, purple and gold related to the Royal Botanic Gardens and parkland surrounding them. 12. The applicants submitted that by reference to Exhibits 10Ms, 68 and 10Hs it could be seen that the location of the phones of Witness L and Witness J were not consistent with the timings of the meeting provided by Witness L. Cell tower records showed that at about 12.14am the phone associated with Witness L was in the light blue area described as "Wynyard West New A4 and C4" in Exhibit 10Hs. The applicants submitted that these calls were consistent with Farhad and Witness L simply driving around the city, not necessarily together, after leaving the Casino. The applicants noted that between 12.54am and 1am the phone associated with Farhad Qaumi was said to be within the area of probable coverage of the tower "Royal Bot Gard A-2" which is the dark green area in Exhibit 10Hs and the southern most area of the Royal Botanic Gardens. The applicants noted that a telephone call took place involving the phone associated with Witness J at 1.35am when the phone was at Granville. Yet on the Crown case, Witness J was present during the meetings. However, the applicants accepted that at 2.51am the phone associated with Witness J was in the area marked "Royal Botanic Gardens". This could best be explained by Witness J leaving the Casino about midnight, going to Granville and then for an unexplained reason, returning to the city. 13. The applicants submitted that what the phone records did not do was place Witness L and Farhad Qaumi in the same tower coverage area at the same time at any time after leaving the Casino in the early hours of 3 November 2013. They submitted that what the phone records did establish was that Farhad Qaumi, Mumtaz Qaumi and Witness J were not in the same area at the time when Witness L claimed they were having a meeting at a location he could not identify in the early hours of 3 November 2013. 14. The Crown was able to establish that in at least one case, after the cars had left the Casino, one of the passengers had got out of the car in which he was travelling (which was that driven by Farhad Qaumi) and had got into the car driven by Witness C. The Crown was also able to establish that the evidence of Witness D was incorrect as to both the time that he left the Casino and with whom he left the Casino. His evidence was that he had been driven from the Casino by Mumtaz Qaumi whereas Witness C remembered driving him home from the Casino that night. Moreover, Witness D was observed by the police outside the Casino after 11.45pm and so could not have left the Casino in Mumtaz Qaumi's car. The Crown submitted that this evidence from some of the drivers, together with the CCTV coverage of the cars departing from the Casino, did not exclude Witness L travelling with Mumtaz Qaumi or somebody else to the CBD as he asserted in his evidence. 15. The Crown accepted that Witness L was unable to identify the location of the two parks to which he was driven after leaving the casino. Significantly, however, he was able to say that the second park was next to a body of water and from which the Sydney Harbour Bridge and Sydney Harbour could be seen in the distance. Witness L described stairs which they descended and a concrete wall. The Crown further noted that although the Royal Botanic Gardens are surrounded by a fence, and are closed between 8pm and 7am, the fence does not enclose the whole of the public parkland in that area and that the road to Mrs Macquarie's Chair is open 24 hours a day. Exhibit 11Q showed what was and what was not fenced within that area. The Crown submitted that the description given by Witness L for the second park would certainly fit that part of Mrs Macquarie's Chair which at all times is accessible to the public. That area contains steps, is next to the harbour and there are places where the Harbour Bridge can be seen. 16. In relation to the criticism that Witness L was deliberately vague as to the location of the second park, the Crown submitted that it was significant that Witness L did not drive a motor vehicle nor did he know the city. At the time of the Hamzy shooting, he was living in Blacktown. He was driven to the two parks, rather than making his own way there, in the early hours of the morning when it was dark. It is also of significance that having an unscheduled meeting in a park for security purposes was a normal occurrence for members of the Blacktown BFL. 17. The Crown submitted that to criticise Witness L for his lack of ability to describe the locations of the two parks within which he, Farhad Qaumi and Mumtaz Qaumi spent some after leaving the casino, is to ignore the reality of a migrant living in Blacktown, who did not own a car nor have a driver's licence and whose experience of the Blacktown BFL included meeting in a variety of parks and being driven to and from them by other gang members. 18. The Crown submitted that evidence from the telephone records suggested that Witness J, Farhad Qaumi, Jamil Qaumi and Witness L left the Casino at just after midnight on 3 November 2013. It noted that Farhad, Mumtaz and Witness L were Optus subscribers whereas Witness J was a Vodafone subscriber. The Crown noted that cell tower sites associated with the use of Farhad Qaumi's mobile telephone were associated with the Royal Botanic Gardens A-2 cell site. Cell sites associated with the use of Witness L's mobile telephone between 12.14am and 1.51am included the Royal Botanic Gardens D-1 and Royal Botanic Gardens B-1 cell sites. Probable coverage from the Royal Botanic Gardens cell site was mapped in Exhibit 10Hs based on material from the predicted probable coverage maps (Exhibit 10F). The colour coding was further explained in Exhibit 68. 19. Raymond Chang explained the concept of predicted probable coverage. Possible coverage from cell sites appears to be more extensive than the probable coverage. Accordingly, predicted probable coverage does not chart the limits of coverage from a cell tower. 20. Mr Chang agreed with the proposition that the diagrams/maps of probable cell tower coverage were a very rough guide to the location of a mobile telephone. The Crown submitted that no matter how rough the guide, Witness L's mobile telephone records for that night and early morning suggest he was at least in the Sydney CBD and certainly not home in Blacktown. He was more likely to have been seen with Farhad Qaumi than with Jamil Qaumi simply because of the correlation between the cell sites associated with their mobile telephone use. 21. The Crown submitted that cell sites associated with the use of Farhad Qaumi's mobile telephone between 12.16am and 1am placed him at least within the Sydney CBD. Farhad Qaumi telephoned Mumtaz at 3.20am. The cell tower locations of Farhad and Mumtaz with respect to that call are consistent with the two of them having been stopped separately by police near Roseville at 3.30am and by inference, when they were on their way home to the Central Coast. A telephone call by Witness J associated with a Vodafone cell site at the Royal Botanic Gardens was made at 2.51am at a time consistent with him being with Farhad, Mumtaz and Witness L at that time. 22. Jamil Qaumi, after leaving the casino, appears to have remained within the Sydney CBD making telephone calls that went through different cell sites to those associated with the telephone calls of Farhad and Witness L. Jamil Qaumi remained within the Sydney CBD until at least 2.59am. He made his last call that morning at 3.12am. 23. It was put to Witness L that he left the Casino with Jamil Qaumi, who drove him around the city before stopping near the harbour to buy some pies, after which Jamil Qaumi drove him home to Blacktown. Witness L denied that. 24. Jamil Qaumi gave evidence that he drove Witness L to his house in Blacktown and then drove to his sister's house in Pendle Hill. The Crown submitted that this description of the night incorrectly reduced the time Jamil Qaumi would have had to spend with Witness L, i.e. at least three hours. The Crown submitted that this suggested, as Jamil Qaumi had to acknowledge, at least three hours of aimless driving around the Sydney CBD or a similar lengthy period consuming take away food. The Crown submitted that the jury were entitled to reject that possibility in the context of all of the available evidence with respect to the meeting. 25. Witness L said that Witness J was present during the time that he was in the two parks with Farhad and Mumtaz Qaumi. The Crown noted that Witness J's telephone call at 12.15am went through a cell site at Pyrmont and was followed by two unconnected calls thereafter to Farhad Qaumi. At 1.35am Witness J's mobile telephone accessed the internet through a cell site at Granville. At 2.51am a telephone call lasting 46 seconds from that mobile telephone went through a cell tower at the Royal Botanic Gardens. Jamil Qaumi made telephone calls to Witness J at 2.56am, 2.57am and 3.12am. At 3.35am the Granville cell tower site was again used by Witness J to access the internet. The Crown submitted that this was consistent with Witness J returning to his home from the casino, then going back to the CBD before travelling back to the west of Sydney. 26. The Crown submitted that when asked about being present at the meeting and responding that he could not recall, Witness J's lack of memory might have arisen because there was no such meeting or he may not have been telling the truth or his trip to the city in the early hours of 3 November 2013 was unmemorable. 27. The Crown submitted that the jury would be in the best position to decide which version of events was the more likely. The Crown submitted that Witness J's return to the city and his telephone call at 2.21am, associated with the Royal Botanic Gardens cell site, suggests that he spent some time, even a short time, together with Farhad Qaumi, Mumtaz Qaumi and Witness L. His travel between the west of Sydney and the Sydney CBD region certainly appears curious for such a late hour and for such a relatively short stay in the Sydney CBD. The Crown submitted that even if Witness J was not with Farhad Qaumi, Mumtaz Qaumi and Witness L, that does not contradict Witness L's evidence concerning what Farhad Qaumi said while they were in the second park. The Crown submitted that it might be that Witness L was mistaken as to whether Witness J was present for the whole time that the meeting took place. 28. There is one thing which is clear. Witness L did not have access to a vehicle. His preferred method of travel was to be driven by one of the Blacktown BFL members. When he is shown to be in the CBD early in the morning of 3 November 2013, this raises the question of how he got there and how he was able to return home to Blacktown. There is no suggestion that he used a taxi or some other means of hired transport. The overwhelming inference is that one of the Blacktown BFL members drove him to the CBD and either that person or another member of the gang drove him home. 29. On the analysis of the telephone and cell tower material, it cannot be said that the evidence of Witness L should not be accepted because the scenario described by him could not have possibly occurred. Given the imprecise nature of the cell tower material, the discussion in the second park may well have occurred. It is certainly not precluded by the cell tower material. Ultimately, the resolution of the issue depended upon whether the jury accepted the evidence of Witness L. If they did, that evidence can be reconciled with the limited information available from both the cell towers and the mobile phone records. 30. I accept the Crown's submissions on this issue. The question of whether or not Witness L was telling the truth concerning this meeting was a question of fact to be resolved by the jury. The jury were in a significantly better position to make that decision than is this Court. They had the opportunity of not only seeing and hearing Witness L give his evidence but of assessing other important witnesses such as Witness J. In those circumstances, it was well open to the jury to accept the evidence of Witness L in relation to the second meeting in a park after the departure from the casino. It could certainly not be said that in accepting the evidence of Witness L (as the jury obviously did) that they had acted unreasonably and that such a finding was not available on the evidence. 31. There was a broader challenge to the evidence of Witness L based upon what was said to be his lack of credibility. 32. The applicants submitted that Witness L received an extraordinary number of benefits for his plea of guilty and his assistance to the authorities. The applicants submitted that despite his admitted involvement in the killing of Mahmoud Hamzy, he was never charged with his murder or with conspiracy to murder or shoot with intent to murder Mahmoud Hamzy. He received a 60 per cent discount on his sentence for his plea of guilty and his assistance. 33. The applicants relied upon what was described in submissions as the "three way" conversation between Witnesses G and I on the one hand and Witness L on the other. This conversation occurred on 21 August 2014 when Witness L was held in a police station with Witnesses G and I. The applicants identified the following aspects of that conversation as indicating a lack of reliability and honesty on the part of Witness L. 34. Firstly, the applicants submitted that it was obvious from the conversation that by that date Witness L wanted to cause the maximum amount of harm to the Qaumis. The applicants submitted that it was clear from the three way conversation that the police had made it very clear to Witness L that it did not matter to them that he was one of the shooters in the Hamzy killing because the real target was Farhad Qaumi. This was confirmed by Witness L in his evidence. 35. The applicants submitted that it was clear from the conversation that Witnesses G and I were suggesting to Witness L that he tell the police a good story and say that he was forced by the Qaumis to act in the way that he did. The applicants submitted that Witnesses G and I were explaining in detail to Witness L the benefits of becoming an informer and co-operating with the police. 36. The applicants submitted that Witness L was quite prepared to tell lies to the police when it suited his purpose. They referred to his statement to the police in his first interview to the effect that Witness J had participated in the Hamzy killing when he knew that this was untrue. 37. The applicants submitted that Witness L was a witness who was prepared to tell deliberate lies to police implicating people in serious crimes who were to his knowledge not involved in those crimes. They submitted that he told police that Witness J was present at the Hamzy shooting and in fact fired a number of shots. He admitted that what he had told police about Witness J's involvement in that killing were deliberate lies. He justified those lies by saying that Witness J was a cousin of Farhad Qaumi. 38. There are difficulties in seeking to focus upon unsatisfactory aspects of the evidence of a witness such as Witness L when the applicants, their co-accused and many of the significant witnesses and intended victims of the offences were criminals and members of either the Blacktown BFL or the Bankstown BFL and were themselves involved in serious offending. 39. Witness I had been a member of the Blacktown BFL. He and his brother, Witness G, had previously been members of the Parramatta BFL and had transferred to the Blacktown chapter together with Witness L. Witness I participated in the Odisho, Zakaria and Chokolatta Café shootings. 40. It was put, on behalf of the applicants, that because Witness I believed the Bankstown BFL suspected that he was involved in the Hamzy shooting, he had, of his own volition, decided to carry out the Odisho shooting in order to protect himself from possible retaliation. His brother, Witness G, who was arrested on 11 September 2013, had been the Blacktown BFL "enforcer" before his arrest. 41. There was no issue that Witness L was a member of the Blacktown BFL and had participated in the Hamzy and Elkadi shootings. There was no issue that he falsely implicated Witness J in the Hamzy shooting before nominating another person as the third shooter. The jury were well aware of this and had received appropriate warnings from the trial judge. There was no suggestion that the jury did not understand those warnings. 42. Reference has already been made to his conversations with Witnesses G and I. His meeting with G and I was arranged by police and the resulting conversations recorded by listening devices. In both conversations, the participants used colourful language to make their point. The police wanted all three to implicate the Qaumis. There is no doubt that Witnesses L, G and I were motivated by a hatred of the Qaumis and particularly Farhad Qaumi. Further it is plain that all three were motivated by self-interest in reducing their sentences and obtaining better prison conditions. In their conversations with Witness L, Witnesses G and I suggested that he allege that the life of his child was threatened in order to induce him to commit an offence. Significantly, Witness L did not excuse his commission of serious offences on the basis that he or his child had been threatened. 43. The Crown submitted that a lot of what Witnesses G, I and L spoke about when being recorded, is what one would expect from accomplices considering giving evidence on behalf of the Crown. They would need to consider the benefits that might flow to them, including better prison conditions that appear to be available to informer witnesses. They would also need to balance those matters against the risk of being found out as an informer while in prison. 44. The Crown submitted that while it was concerning that Witnesses G and I, in their conversation with Witness L, were seeking ways of reducing culpability by shifting blame, that was well known conduct by accomplices and the jury were warned about that by the trial judge. 45. The Crown submitted that the conversations involving Witness L did not create an obstacle to accepting the evidence of Witnesses G, I and L. The Crown submitted that like all informer witnesses, it was open for the jury to accept some or all of their evidence, taking into account the warnings given by the trial judge and whatever other support existed in the evidence. 46. Throughout the trial, the presiding judge provided the jury with comprehensive warnings concerning the "roll over" witnesses. Those warnings were given, not only during the summing up, but during and at the conclusion of the evidence of the informer witnesses. 47. An example of a typical warning is that given by his Honour at the conclusion of the evidence of Witness L and which is set out at T.3212.11, 16.6.2016:- "HIS HONOUR: Members of the jury, I am shortly going to allow you to disperse for the day. Before I do that, I am going to give you again an important legal direction about the evidence you have just heard. It is a warning that must be given because again, as with [Witness G] and [Witness M], [Witness L] falls into a category of witness whose evidence may be unreliable. I have stressed this when I have given you directions about both [Witness M] and [Witness G] that the direction I am giving you is not a direction that [Witness L's] evidence is unreliable and it is certainly not a direction that you should disregard his evidence. It is up to you and each one of you as the judges of the facts in the court case to assess his evidence along with all of the other evidence you hear in the trial, but in making your assessment you must - I repeat must - take into account this legal warning that his evidence falls into a category that may be unreliable. In his case, the reason that the warning is necessary is because he is a person who was criminally involved in the very offences about which he has given evidence. That means that he has an interest, a self interest in blaming other people and in minimising his own role in events. In doing that, he had the opportunity to gain a number of advantages and that is not a theoretical proposition in his case. You have heard evidence that he did in fact gain a number of advantages. As I have said to you earlier in the trial, the history of the courts, the experience of judges and lawyers through the centuries, is that people with a self interest like that, people who played a role in committing the offences that they come to give evidence about, are people who may give unreliable evidence. You have heard [Witness L] on his own admission, and with the protection as I have explained to you of a certificate that his evidence here could not be used against him, admit that he was involved in many, if not all of the criminal offences with which you are concerned. He was one of the shooters in the Hamzy killing. There is obviously a dispute between the parties as to who caused the fatal head shot to Mahmoud Hamzy. [Witness L] gave evidence that that was Jamil Qaumi. It was put to him by Ms Carroll on behalf of Jamil that it was in fact the witness, [Witness L], who delivered the fatal shot. You will recall that he denied that. I again remind you that it is the answer and not the question that constitutes the evidence. Of course, you have to remember that last witness, [Witness M], gave evidence that both of them, in the car going back and later, claimed to have been the one or made an admission to being the one who had shot Mr Hamzy in the head. Whatever you might make of all of that, the clear and undisputed fact is that the witness went to the house at Revesby Heights armed with a gun and shot, on his own admission, both Mahmoud Hamzy and Omar Ajaj. He was also actively involved in the conversations that led the group to set out with the intention of murdering Mohammed Hamzy, or Little Crazy. So whoever might have delivered the fatal shot, there is no doubt that he was criminally concerned in the offences that make up count 1, 2 and 3 on the indictment. Those offences, members of the jury, are the most serious of the offences with which you are dealing in this trial." 1. The Crown submitted that the same considerations and qualifications applied to all the "roll over" witnesses. Witness M was, or was alleged to have been, the instigator of the Hamzy and Chokolatta Café shootings. She was the source of information in the Odisho and Zakaria shootings as to where the targets lived or worked. She was subject to a considerable degree of criticism during the trial and the applicants' submissions to this Court. As already indicated, in the appeal the Crown made its intention clear, i.e. not to enter into these issues. Rather, the Crown proposed to answer the primary complaint that the verdicts of guilty were unreasonable by relying upon evidence from witnesses other than Witness M unless her evidence was corroborated. The Crown submitted that there was a sufficient body of evidence to justify the applicants' convictions aside from her evidence. 2. Witness A was a member of the Blacktown BFL. Witnesses I and L introduced him to the gang. He gave evidence of Farhad Qaumi's control of the Blacktown BFL and said that the Blacktown chapter could not take action without his agreement and/or the agreement of his brothers. 3. Witness J was a cousin of the applicants. He was a member of the Blacktown BFL. He gave evidence that Farhad Qaumi said that he put fear into the members' hearts and that they would therefore obey him. He did not directly participate in any of the shootings, although he had a role in the Hamzy shooting. 4. Witness C was a member of the Blacktown BFL. His role within the gang was performing the drug run. He was the driver for the Odisho and Zakaria shootings. He was not associated with the conversations in prison between Witnesses G and I on the one hand and Witness L on the other. 5. Witness B was Witness C's cousin. He was a member of the Blacktown BFL. He first approached police in August 2013 and provided the Middle Eastern Organised Crime Squad with phone numbers, member names and information about the meeting on the day before the Chokolatta Café shooting. 6. Witness D was born in Afghanistan. He was a member of the Hazara ethnic group. He was 21 years old when he gave evidence in July 2016. He had been in juvenile custody in 2013 when he turned 18 years old. There he met Masood Zakaria through whom he joined the BFL. During the time he was a member of the Blacktown BFL, he lived in a hostel in Marrickville and paid his $50 levy to the Blacktown BFL from his Centrelink allowance. 7. Before Witness D gave evidence, the Crown Prosecutor provided the trial judge with a psychological report to assist if he needed to be advised of his right not to incriminate himself, pursuant to s 128 of the Evidence Act 1995 (NSW). Witness D had difficulty remembering conversations and the names of people often simply referring to them as "thing". His description of how the shooting at the Chokolatta Café occurred indicated his inability to use concepts, such as left and right. 8. Witness D commenced to assist police by 13 March 2014. He played no part in the recorded conversations between Witnesses G, I and L. 9. While the transcript of Witness D's evidence indicates the difficulty which he had as a witness, he gave evidence of certain incidents in which he was involved and of the participation of the Qaumis. The Crown submitted that he presented as a witness who lacked the guile to do otherwise than provide the unvarnished truth. Farhad Qaumi referred to Witness D as "staunch and a soldier" when he visited Mohammed Kalil and Nazir Akbari in custody. The Crown submitted that Farhad Qaumi's motivation in relation to Witness D was to take advantage of and use for his own purposes the fact that he was young and, for the reasons set out, malleable. 10. Witness D had reported experiencing hallucinations to health professionals. The Crown submitted that because he had smoked ice since the age of 15, such an outcome was not surprising. The Crown noted that the reports of hallucinations had been to health professionals whom he saw while he was in custody as a juvenile at the beginning of 2013, before he was released and thereafter became a member of the Blacktown BFL. The Crown noted that there were no contemporary reports of hallucinations, a point made by the trial judge when he directed the jury, with respect to Witness D's evidence, pursuant to s 165 of the Evidence Act. The Crown noted that this evidence was admitted as going to Witness D's overall reliability but was not relied upon in closing addresses by any defence counsel. 11. In relation to each of the informer witnesses, the Crown accepted that they had issues concerning their reliability. However, the Crown noted that not all of what these witnesses said in their evidence was challenged. The Crown submitted that there was no reason in principle why their evidence, or at least parts of their evidence, could not be accepted. The Crown noted that s 164 of the Evidence Act abolished the requirement for corroboration and the need to give a warning or direction with respect of uncorroborated evidence. The Crown accepted that s 164 could not override factual issues relating to accomplices, including the consideration of whether collusion between them occurred. Nevertheless, the Crown submitted that the evidence of an accomplice who participated in the same criminal offence, but whose assistance to authorities appeared genuine and independent from other accomplices, should be able to be used to support the evidence of those other accomplices. I agree with these submissions. 12. The presiding judge warned the jury concerning the evidence of the informer witnesses. An example of a typical warning has already been given. Those warnings were not the subject of challenge by the applicants. The Crown submitted that it was therefore open to the jury, after taking those warnings into account, to accept in whole or in part the evidence of those informer witnesses despite the criticisms that had been laid against them. Accordingly, it was well open to the jury to accept parts of the evidence of Witness L and to reject others. In making that assessment, the jury had a considerable advantage over this Court. 13. Although Jamil Qaumi was not strictly speaking a "roll over" witness, he was by his own admission, involved in many of the shooting incidents. It was uncontroversial that he had returned to Australia on 11 September 2013, after being overseas for a period, and thereafter resided with his brother Mumtaz in Wyong. 14. Jamil's evidence included that he had participated in the Hamzy shooting, which he explained as being in self-defence of his brother. It included burning the car that was used to drive the shooters to and from the Hamzy shooting. Jamil Qaumi declined to identify the third participant in the Hamzy shooting, other than himself and Witness L. One issue arising from the Hamzy shooting was whether Jamil or Witness L had shot Mahmoud Hamzy in the head with a .38 revolver. 15. It was also clear that Jamil Qaumi was either present or involved in the Odisho shooting, the Zakaria shooting and the shooting at the Chokolatta Café. It was put to him by the Crown that he was the person who was designated to make sure that "these jobs were done". Jamil's response was that "They're just my friends and I was around" (T.6148.23, 25.8.2016). In accordance with the warning given by his Honour as to the potential unreliability of Jamil's evidence, it was open to the jury not to accept his evidence when he sought to exculpate himself and his brothers in respect of any of the offences with which they were charged. The Odisho shooting in Winston Hills on 3 November 2013 – Counts 4 and 5 1. Michael Odisho was a member of the Bankstown BFL. He did not give evidence at trial, having refused to do so. He participated in an ERISP on 19 February 2014 in relation to the Hamzy shooting but said nothing to police about his own shooting. 2. The Crown case was that Witness D and Witness I fired the shots which wounded Odisho. Witness C drove them there and waited in the car while the shooting took place. As a result, the applicants were found guilty of the offences in Counts 4 and 5 under the principle of joint criminal enterprise and extended joint criminal enterprise. It was the Crown case that the applicants incited and directed those persons to shoot Odisho with the intention that he be killed and that their actions amounted to an attempt to murder Odisho. 3. Both sides accepted that the statements of principle in Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 (Bathurst CJ with whom Johnson and Fullerton JJ agreed) accurately set out the considerations which gave rise to a joint criminal enterprise, or an extended joint criminal enterprise. In that regard, it was common ground that in respect of all the shootings neither Mumtaz nor Farhad Qaumi were physically present at the time that the offending took place. 4. Bathurst CJ set out the relevant principles at [41]-[54]: "41 It is well-established that a person will not be liable for a crime committed by another as a result of the principle of joint criminal enterprise merely because the person is a party to an agreement to commit a criminal offence which was subsequently committed by one of the other parties to the agreement. To be liable the person concerned must participate in the commission of the offence. 42 In Osland v The Queen supra, McHugh J explained the operation of the principle in the following terms: "[72] However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category, each of the persons acting in concert is equally responsible for the acts of the other or others. The general principle was clearly stated in R v Lowery and King [No 2] by Smith J who directed the jury in the following terms: 'The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime.' [73] In that case, his Honour directed the jury that 'they are all equally guilty of that crime'. But as subsequent cases show, and as principle requires, the correct statement is that they are all equally liable for the acts that constitute the actus reus of the crime. The principle is accurately stated by Brett, Waller and Williams in the 8th edition of their work on Criminal Law: '[E]ven if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert.' (Emphasis added.) So far as is presently relevant, these principles were accurately and more fully stated by the New South Wales Court of Criminal Appeal in R v Tangye. The Court said: '(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed.' (Emphasis added.) … [79] The principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator operates to make a person guilty of the principal crime, even though the actual perpetrator is acquitted completely. Thus, the person who did the act may be legally insane. Yet as long as that person had sufficient mental capacity to enter into the arrangement or common understanding, the other participant present at the scene will be guilty of committing the principal crime if he or she has the relevant mens rea. In Matusevich v The Queen, this Court decided that, when two persons are said to be acting in concert, the fact that the actual perpetrator is legally insane does not necessarily mean that the conviction of the other, who was present at the scene, should be quashed. If the actual perpetrator has sufficient capacity to enter into the agreement or understanding, the person present at the scene who was acting in concert may be convicted of the offence. … [93] Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime [Footnotes omitted]." 43 His Honour's explanation of the principle was approved by the High Court in Huynh v The Queen supra. The Court made the following remarks: "[37] The respondent's written submissions acknowledged that joint enterprise liability requires proof of the agreement and of the accused's participation in the enterprise. However, on the hearing of the appeals the respondent resiled from that submission in favour of the contention that 'one plays a part at its most simple by joining into the agreement'. That contention conflated the making of the agreement (whether tacit or express) with participation in its execution and confused liability for conspiracy with liability for the offence that is the subject of the conspiracy. Under the common law the agreement of two or more persons to commit a crime is, without more, a conspiracy. Parties to a conspiracy are liable to conviction for that offence regardless of whether the crime that is the subject of their agreement is committed. The doctrine of joint criminal enterprise provides the means of attaching liability for the agreed crime on all the parties to the agreement regardless of the part played by each in its execution. Of course there will usually be no occasion to have recourse to the doctrine in the case of a party who does some or all of the acts constituting the actus reus. The work done by the doctrine is in making other parties liable for those acts. The principles are as explained by McHugh J in Osland v The Queen. Liability attaches to all the parties to the agreement who participate in some way in furthering its execution. [38] A person participates in a joint criminal enterprise by being present when the crime is committed pursuant to the agreement. The unchallenged evidence was that each appellant was one of a larger number of persons who had travelled from Duong's house to the Vartue Street premises. No nice question arises in these appeals of the sufficiency of the evidence to prove participation in the enterprise. If, at any time prior to the stabbing, the appellant whose case was under consideration was found to have come to an understanding or arrangement with others, including the principal offender, that a knife or similar bladed weapon would be used to kill or to inflict really serious bodily harm on a person or persons at the Vartue Street premises, his presence as one of the hostile group amounted to participation in furtherance of the agreement." 44 In Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 Hayne J described the principle in the following terms (referring to McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 at 113-114): "[109] As was pointed out in McAuliffe, the terms 'common purpose', 'common design', 'concert', 'joint criminal enterprise' are used more or less interchangeably to invoke a doctrine by which the complicity of a secondary party in the commission of a crime may be established. It is a doctrine which is separate from the liability of an accessory before the fact, who counsels or procures the commission of the crime; it is separate from the liability of a principal in the second degree, who aids or abets in the commission of the crime. Joint criminal enterprise, or acting in concert, depends upon the secondary party (here, the appellant) sharing a common purpose with the principal offender (here, Preston) or with that offender and others. [110] In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission. … [112] As McAuliffe reveals, the contemplation of a party to a joint enterprise includes what that party foresees as a possible incident of the venture. If the party foresees that another crime might be committed and continues to participate in the venture, that party is a party to the commission of that other, incidental, crime even if the party did not agree to its being committed. In such a case, as was said in McAuliffe, 'the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind'. To hold the individual liable for the commission of the incidental crime, when its commission is foreseen but not agreed, accords with the general principle that 'a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it'. The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight." Gleeson CJ and Callinan J agreed with his Honour's remarks ((2003) 219 CLR 1 at [10]). 45 Each of the authorities to which I have referred emphasised the need for the party to the joint criminal enterprise to participate in the enterprise whilst stating that presence at the time the crime was committed is sufficient to demonstrate such participation: Osland supra at [72]-[73]; Huynh supra at [38]. The issue is whether presence at the time of the commission of the offence is necessary for a person to be liable under the doctrine. 46 Although on one reading the judgment of McHugh J in Osland supra and the passages from R v Lowery & King (No 2) (1972) VR 560 and R v Tangye supra cited by his Honour with approval, would tend to suggest this is the case, I do not think the principle is so confined. Indeed, [93] of the judgment of McHugh J in Osland supra and the statement in Huynh supra at [37] that liability attaches to persons who participate in some way in furtherance of its execution, tends to the contrary. 47 In my opinion a person can be liable under the principle if it can be shown that he or she entered into an agreement or understanding to commit a crime and (to adopt the words in Huynh supra at [37]) participated in some ay in furthering its execution. Whilst presence at the actual commission of the crime is sufficient, it is not necessary if the person sought to be made liable participated in some other way in the furtherance of the enterprise. 48 A number of relatively simple examples can be given which show that this is so. A person who agrees with another to murder a victim by poisoning him and who in furtherance of that agreement supplied the poison to the other party who in fact administered it to the victim, will be liable under the principle although that person was not present when the poison was administered. Similarly, a person who created a fraudulent instrument pursuant to an agreement to defraud a victim will be liable for the fraud even if he is not present when the other party to the agreement made use of the instrument to defraud the victim: see, for example, R v Bingley & Ors supra. 49 What I have written is not in my opinion inconsistent with authority. In R v Morgan [1994] 1 VR 567, the Court of Appeal of Victoria stated (at 570) that Smith J in Lowery & King supra was not purporting to make an exhaustive statement of the law governing liability of persons engaged in a joint criminal enterprise and held (at 572) that the test of liability does not depend on the physical presence of a person at the scene of the crime but rather his or her participation in the fulfilment of the common purpose by the commission of the crime. 50 In R v Franklin (2001) 3 VR 9, a case involving what one member of the bench described as murder by prolonged torture, it was argued that the applicant could not be convicted under the principle as he was not present during the whole of the period in which the assault which led to the death took place. Ormiston JA (at [135]) stated that that ignored the existence of authority suggesting continual presence was not essential. 51 In Likiardopoulos v R (2010) 30 VR 654; [2010] VSCA 344 it was argued that the trial judge erred in directing the jury that liability by way of joint criminal enterprise did not require proof of presence and on that basis, joint criminal enterprise should not have been left to the jury when it was not possible to exclude the possibility that the accused was absent when the acts causing death were performed. The appeal was dismissed. The Court (at [59]) referred to authorities which had not required presence of all offenders at the time of the commission of the offences but rather required participation in the criminal enterprise. The Court stated (at [63]) that the Crown needed to prove the accused's continuing agreement to engage in particular conduct, participation by the accused, performance of all of the conduct necessary to commit the offence by one or more of the parties to the agreement, and that the accused had the requisite mens rea. 52 An appeal from that decision was dismissed by the High Court (Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37) the plurality making the remarks to which I have referred at [34] above. 53 In R v Prochilo [2003] NSWCCA 265, a case involving the unlawful supply of drugs, Smart AJ without reference to authority stated (at [59]) that presence at the scene of the supply was one way of proving participation in the joint criminal enterprise but not the only way. Beazley JA (as her Honour then was) and Greg James J agreed. 54 In Sever v R [2010] NSWCCA 135, in upholding an appeal against a conviction for arson, Latham J with whom Schmidt J agreed, made the following remarks: "[146] It is, of course, possible for the Crown to mount a case based on joint criminal enterprise where the accused is not present at the commission of the offence; Osland v The Queen [1998] HCA 75 at [27], [93] ; (1998) 197 CLR 316 at 329-330, 350; R v Prochilo [2003] NSWCCA 265. However, the existence of the agreement or enterprise, and the participation in it by the accused in such a case cannot be inferred from the circumstances in which the offence is committed, because (to state the obvious) there is no evidence of what the accused said and/or did during the commission of the offence. The jury must look to evidence of events, other than those pertaining to the offence itself, for proof beyond reasonable doubt of the existence and scope of the agreement, and the accused's participation in it. [147] In the instant case, there was a complete absence of evidence of that character. There was no evidence of the identity of a potential co-offender. There was no evidence of conversations between the accused and others that were capable of amounting to an agreement to commit an offence. There was no evidence of acts on the part of the accused, such as the transfer of a large amount of money to another or the purchase of material linked to the fire, that suggested an intention to carry out such an agreement."" 1. It was the Crown case that preparations for the Odisho shootings commenced in a park in Blacktown on the day of the shooting. The Crown relied on the following evidence. 2. Witness L arrived with Jamil Qaumi who had driven him there. Mumtaz Qaumi and Witness J were also there. Witness C, Witness D and Witness I arrived afterwards. Witness I described how while at the park in Blacktown, both Mumtaz and Jamil Qaumi directed Witness D and Witness C to either shoot Michael Odisho or Masood Zakaria. They were to steal a car for the purpose of the shooting. 3. Witness I gave evidence that while they were looking for a car to steal, Jamil Qaumi was telephoning them asking where they were and why it was taking so long. Eventually, Jamil Qaumi told them to meet him at a park in Merrylands. 4. Witness L gave evidence about how Witness I, Witness D and Witness C were looking for a car to steal. Witness L left the park with Mumtaz and Jamil Qaumi and met Witness M at the McDonalds restaurant in North Parramatta. Witness M knew where Michael Odisho lived. Mumtaz and Jamil Qaumi and Witness L were driven in her car to Michael Odisho's home in Winston Hills where she pointed out its location. They then returned to North Parramatta where Witness M drove away. Mumtaz, Jamil and Witness L met with Witness D, Witness I and Witness C. Witness l remained in Mumtaz Qaumi's car at the park. The others left to go to Witness I's house. 5. It was at the park in Merrylands after the unsuccessful attempt to steal a car that Mumtaz Qaumi told Witness D, Witness I and Witness C that he had Michael Odisho's address and said "We going to get Mikey" and as part of that plan Witness I, who knew Michael Odisho, would get him out of his house so that he could be shot. 6. Witness C described driving to the park in Parramatta and meeting Mumtaz and Jamil Qaumi, who then got into his car. The five of them drove at the direction of Mumtaz Qaumi to Michael Odisho's house. Mumtaz Qaumi gave directions as to how the shooting would be carried out. They then returned to Parramatta where Mumtaz and Jamil Qaumi drove away and Witness C drove Witness D and Witness I to Witness I's house. Witness I described how a shotgun and a revolver had been brought to his house by Jamil Qaumi. The weapons were taken from Jamil Qaumi's car by Witness I and Witness D. Jamil Qaumi then explained to Witness D how to fire the shotgun. Witness I was given a pistol. 7. Witness D gave evidence of having been driven to Michael Odisho's house with Witness C, Witness I and Mumtaz Qaumi. Mumtaz showed them the address and told them that was where they were going to "get Michael Odisho". Witness D had been given a shotgun, which had been collected from Witness L's house. 8. Witness C drove Witness I and Witness D to Michael Odisho's house. Witness I and Witness D walked up to Michael Odisho's house while Witness C remained in the car which was parked a few houses away. Witness I described knocking on the front door. He heard Michael Odisho come to the front door and ask who it was. Witness I and Witness D then started shooting at the window next to the front door. Witness I and Witness D ran back to the car and they were driven away by Witness C. 9. Witness D gave evidence that Witness I knocked on the door of Michael Odisho's house after which he and Witness D started shooting. He described shooting when he saw someone coming to the front door. He fired when he could see a shadow. 10. Evidence from hospital records established that Michael Odisho had been wounded in the left elbow and left mid lower thigh. The left elbow was fractured as a result of the shooting. Michael Odisho's mother described hearing gunshots as her son went to the window to look at who was at the front door. The Crown submitted that it was open to the jury to conclude that Witness D had an intention to murder when he fired the shotgun through the window at the shadow which he could see. 11. In cross-examination, Witness C maintained that a car was to be stolen for a shooting. He gave evidence that the shooting was not merely intended to scare or warn Michael Odisho or members of the Bankstown BFL and that the shooting was not merely a response to a threat or risk posed by the Bankstown BFL to Witness I. Witness C said that Mumtaz Qaumi did more than simply point out Michael Odisho's house. 12. In cross-examination, Witness I agreed with counsel for Jamil Qaumi that he had been shooting at the lower part of the window to the right of the front door and that he had been doing so to scare Michael Odisho off because he did not want to wait for Michael Odisho to come to the door. Despite this, Witness I denied that he only went to Michael Odisho's house to scare him. It was a matter for the jury as to which version they accepted. It should also be noted that Witness I fired more than one shot. This is inconsistent with an attempt to merely scare Odisho. 13. According to Witness L, Mumtaz Qaumi directed Witness D and Witness I to shoot Michael Odisho because if they did not shoot him first, he would retaliate against them. Witness L maintained that Michael Odisho was to be shot rather than scared off when cross-examined by Mumtaz Qaumi's counsel. 14. Witness I denied that Mumtaz Qaumi was prepared to show him where Odisho lived but did not do more than that. Witness I strongly disagreed that Mumtaz Qaumi had said something along the lines of "They've got to be warned off" and that Mumtaz Qaumi had asked what was to be done. Witness I denied that he responded to Mumtaz Qaumi by saying "Well, I'm going to get him before he gets me". 15. Witness C, when cross-examined by counsel for Mumtaz Qaumi, said that he understood that the risk of retaliation was to Witness I, i.e. that Odisho was coming for Witness I. Witness C denied that all Mumtaz Qaumi had done was to indicate Michael Odisho's house. 16. Witness L denied knowing that there were rumours that he and Witness I had been involved in the Hamzy shooting. Witness L denied being armed at the time and maintained that the shooting occurred because Mumtaz Qaumi had directed it and not because Witness I was said to have been involved in the Hamzy shooting. He said that his involvement in the events of the day leading up to the Odisho shooting occurred because he was in the company of Jamil Qaumi, as Farhad had directed, not because he feared retaliation by the Bankstown BFL. 17. The Crown submitted that it would be remarkable if Mumtaz Qaumi understood that certain members of the Blacktown BFL were suspected of involvement in the Hamzy shooting but saw no personal risk to himself or to Farhad despite what Glebe and Stretch had said at the casino. The Crown submitted that it was antithetical to the concept of a gang that the leadership would not assist its members when they were under threat. 18. The Crown submitted that text messages passing between Witness D, Witness I and Jamil Qaumi showed that Jamil was giving directions to Witness D as to where he should go before the Odisho shooting (Exhibits 6H and 8E). By way of example, police were able to retrieve a text message from Jamil Qaumi to Witness D at 12.47pm on 3 November 2013 which read "Go to Witness I's house, wait there". 19. Jamil Qaumi gave evidence of travelling between various gang members' houses before arriving at the park in Blacktown. He gave evidence that the plan was Witness I's and that the plan was to shoot at Michael Odisho's house. He gave evidence that Mumtaz Qaumi was at the meeting but his role was to give Michael Odisho's address to Witness I after having obtained it from Witness M. He said that both Mumtaz and he had drifted into the meeting to hear what was decided. The Crown submitted that this proposition should be rejected because it was inconsistent with the senior positions which Mumtaz and Jamil held within the Blacktown BFL. 20. Farhad Qaumi submitted that there was no suggestion by Witness C or Witness D that he had said or done anything specifically related to the Odisho shooting. Witness I did say that the day after the shooting, he met Farhad and Jamil Qaumi at a park in Merrylands. He said that Farhad was happy he had done the shooting but was angry that he did not kill him. Farhad Qaumi submitted that such a conversation did not take place and there was no independent evidence that it did. 21. On the second day of his evidence, Witness C added to his evidence of the Odisho shooting when he said: "Q. Was there anything said as to why? A. Yeah I believe him saying, remember him saying "Farhad wants this done. They're coming after us" or "It's either us or them" or something like, along those lines." (T.3786, 28.6.2016) 1. Farhad Qaumi submitted that this response was inconsistent with what Witness C had said in his interview with the police on 7 February 2014: "Q. Do you remember being asked this question on 7 February 2014, question 870, were you asked this in relation to that shooting: Q. And is Farhad in this situation at all that you are aware of? A. Nah. Q. And the police officer Constable Muscat confirmed your answer by saying "No" and then he said "Okay that's it". Do you remember giving those answers to those questions? A. I don't remember. Q. Do you accept that they were answers you gave? A. Yeah." (T.3812, 28.6.2016) 1. It was common ground at the trial that there was no evidence that Farhad Qaumi was present at any meeting before the Odisho shooting. Farhad Qaumi submitted that there was no forensic evidence linking him to the Odisho shootings and no admissions by him. He was apparently not in Sydney in the time leading up to the Odisho shooting in that his telephone records for 3 November 2013 are all consistent with him being on the Central Coast (Exhibit 10Ys). 2. With one qualification, the involvement of Farhad Qaumi in the Odisho shooting depends on an acceptance of the evidence of Witness L as to what was said at the meeting in the park after Farhad Qaumi left the Star City Casino. If the evidence of Witness L is accepted, there was no need for Farhad Qaumi to attend any meeting which took place before the Odisho shooting. There was no need because he had already given a direction early that morning that Michael Odisho should be killed and that Mumtaz Qaumi should pass on that order to Witnesses I and D. It is not surprising, therefore, that his name might not have been mentioned immediately before the Odisho shooting. Accordingly, it was open to the jury if they accepted the evidence of Witness L, to find Farhad Qaumi guilty of Counts 4 and 5 on the basis of soliciting Witnesses I and D to murder Michael Odisho and on the basis of being part of a joint criminal enterprise. His order that the killing should take place and his nomination of who should carry out the shooting was the relevant positive conduct on his part. Mumtaz Qaumi had passed on Farhad Qaumi's instructions to Witness C, Witness D and Witness I and had participated in the reconnaissance of Odisho's home. 3. The qualification is the recording of a conversation between Pasquale Barbaro (PB) and Farhad Qaumi (FQ) on 30 December 2013. That recording was Exhibit 9G. There was no transcript admitted into evidence because the contents of the recording were very much in dispute. 4. The Crown's submission to the jury was that this tape contained a half spoken admission by Farhad Qaumi that he ordered the shooting of Michael Odisho. The defence submission was that it was simply a reference to his having heard that Odisho had been shot. 5. The Crown submission was that the conversation was: "FQ: That's the one I got sho … I think that's the one that got popped I think. PB: Aye. FQ: That's the one I got sh …, is he Assyrian?" 1. The defence submission was that the conversation was: "FQ: That's the one that got sho … I think that's the one that got popped I think. PB: Aye. FQ: that's the one that got sh…, is he Assyrian?" 1. There is another part of that conversation which at best is ambiguous but was also relied upon by the Crown: "FQ: Bro, the only Mikey that I heard of cuz is the one that got, that got shot, that, that, that I, that's what I heard on the news and that that he's got shot." 1. Having played the disc on many occasions, I favour the interpretation given to it by the Crown but the sound is not sufficiently clear to justify basing a finding of guilt only on that evidence. I prefer to do so on the basis already indicated, i.e. that it was well open to the jury to accept the evidence of Witness L as to what occurred after Farhad Qaumi left the casino. 2. The jury, as they were entitled to do, clearly rejected the evidence of Jamil Qaumi. Otherwise, the evidence is virtually all one way as to the actions taken by both Mumtaz and Jamil Qaumi to further the accomplishment of what was agreed between them and Witnesses C, D and I. They obtained Odisho's address, provided the weapons and in the case of Mumtaz, gave directions as to how the shooting was to take place. Similarly, in relation to intention, except for the evidence of Jamil Qaumi, the evidence is almost all one way to the effect that the shooting was not intended to scare or cause grievous bodily harm to Odisho but to kill him. In any event, such an intention can be inferred from the fact that apart from the evidence of Jamil Qaumi, there was no evidence of a direction to scare or only wound Odisho. Moreover, sending someone with orders to shoot indiscriminately when that person is armed with a shotgun with which the person is unfamiliar, raises a high probability of death occurring. This is in a context where the plan was to encourage Odisho to leave his house so that he could be more easily shot. 3. It follows that it was well open to the jury to find beyond reasonable doubt that Farhad, Mumtaz and Jamil Qaumi were part of a joint criminal enterprise which was intended to cause and incite Witness D and Witness I to murder Odisho and to shoot him with the intention of murdering him. It was not unreasonable for the jury to make that finding. There was ample evidence to support that finding if the jury accepted the evidence of Witness L as to events which took place after Farhad, Mumtaz and he left the casino. The Zakaria shooting in Blacktown on 4 November 2013 – Counts 7 - 9 1. The Crown case was that the Zakaria shooting took place at Sunny Holt Road, Blacktown on 4 November 2013 at 11pm. There was no suggestion that Farhad Qaumi was present during the actual shooting. There was no forensic evidence linking Farhad Qaumi to the shooting. 2. In examination in chief, Witness I gave evidence that on 4 November 2013 he and Jamil Qaumi went to meet Farhad Qaumi in a park in Merrylands. Farhad Qaumi said he was happy that Witness I had carried out the shooting, but was angry that they did not kill Michael Odisho. Witness I told Farhad Qaumi that the firearms were at his friend's house. Witness I said that later Witness D and Mumtaz arrived at the park. He could not remember who arrived first. 3. Witness I said that Farhad Qaumi then asked him and Witness D to get Masood "Zakar". Witness I said that Mumtaz Qaumi told Witness D that he had to get Masood out of the house as he knew him. Jamil said "Make sure you get him this time, not like Mikey". Farhad Qaumi directed that they use Witness B's car. 4. Mohammed Kalal also arrived at the park. Witness I said that Farhad Qaumi told him, Witness D and Mohammed Kalal that if they did not shoot Masood, they would get shot. Witness I said that Jamil Qaumi said that he would shoot whoever did not do it. 5. Witness I gave evidence that Jamil Qaumi, Witness D, Mohammed Kalal and Witness I went to Witness L's house at Blacktown in Jamil Qaumi's car. They waited for Witness B to arrive. Either Jamil Qaumi or Witness L brought a shotgun and a pistol into the living room. Someone wiped down the shotgun with a cloth and reloaded it. Jamil Qaumi received a phone call after which he said that they would not use Witness B's car but Witness C's car instead. Jamil Qaumi then reloaded the pistol. When Witness C arrived, Jamil told him what was happening and that he had to be the driver. 6. Witness I said that everyone readied themselves and put on gloves and jumpers. He took the pistol and Mohammed Kalal took the shotgun. Witness C drove the car and Witness D, Mohammed Kalal and Witness I were passengers. They parked around the corner from Masood's house after which Witness D got out and walked towards the house. Mohammed Kalal and Witness I followed and hid behind a wall while Witness D knocked on the door. Witness I heard Witness D talking to Masood's father but could not hear what was being said. Witness I then heard Masood's voice. He looked over the wall and saw Witness D holding Masood's hand. Kalal then started shooting. Witness I said that he did not discharge the pistol. He did not know how many times Mohammed Kalal fired the shotgun. He agreed that three to five times sounded correct. He heard a lot of screaming. They ran to Witness C's car and he drove them back to Witness L's house. 7. In cross-examination Witness I gave evidence that he knew Masood Zakaria and his family, although he did not know that he had a younger sister at that time. He knew his father, his mother and his brother, Dawood. He knew that Masood Zakaria lived with his family in that house. 8. When Witness D knocked on the front door, Witness I thought he could recall a light coming from inside the house. He could not see anyone standing in the front doorway because he was hiding behind the wall. Shortly after the front door was opened, he and Mohammed Kalal stepped out. Witness I walked towards the driveway and Mohammed Kalal walked towards the front door. 9. Witness I said that Jamil Qaumi and Witness L were at Witness L's house when they returned after the shooting. Witness I told Jamil that he could not shoot and Jamil said "Don't worry, Moey got him". (Moey was a reference to Mohammed Kalal.) Jamil took the pistol and told Witness I to get rid of his clothes. Witness I was unsure what happened to the pistol. 10. Under cross-examination by counsel for Mumtaz Qaumi, Witness I said that he was in possession of a .38 pistol during the Zakaria shooting but did not discharge the firearm. He said it was a different .38 from the one used in the Odisho shooting. Witness I said that Witness D was unarmed as he had a different role in the Zakaria shooting which was to knock on the door and divert the occupants' attention. 11. In cross-examination, it was put to Witness I that the meeting with Farhad Qaumi and others at Merrylands never took place. Witness I did not agree with that proposition. Witness I disagreed with the suggestion that neither Farhad Qaumi nor Mumtaz Qaumi were present at the meeting. Witness I said that it was on the occasion of this meeting that Mumtaz Qaumi suggested to Witness D that he should get Masood out of the house so that Witness I could shoot him. Witness I disagreed with the proposition that Mumtaz Qaumi never said this. 12. In cross-examination, Witness I said that on 4 November he had returned with Jamil Qaumi and Sarkhel Rokhzayi to retrieve the firearms from where they hid them the day before. He said that he and Jamil Qaumi put the firearms in Sarkhel Rokhzayi's car and followed Rokhzayi back to his house. Witness I marked a map to show where Sarkhel Rokhzayi lived and to show where the conversation on the evening of 4 November 2013 between Farhad, Mumtaz and Jamil Qaumi, Witness D and Mohammed Kalal occurred (T.3643-3644, Exhibit 58, 24.6.2016). Witness I stated that they were at this meeting for about one to two hours. He disagreed that his evidence about the conversations that occurred at the meeting was false. He confirmed that after the meeting he, Jamil Qaumi, Mohammed Kalal and Witness D went to Witness L's house. Witness I disagreed that he loaded the revolver in Witness L's house before the shooting. He disagreed that the decision to shoot Masood Zakaria was made at Witness L's house. He disagreed that the Zakaria shooting was his idea and was intended to give a warning to stop Masood Zakaria from attacking him (i.e. Witness I) or Witness L. 13. Under cross-examination by counsel for Mohammed Kalal, Witness I agreed that Jamil Qaumi told him, Witness D, Mohammed Kalal and Witness C when he arrived that Witness D was to draw Masood Zakaria out of the house and that Witness I and Mohammed Kalal were to do the shooting. Witness I agreed that there was no discussion about the risk to anyone else who might be in the house. 14. A summary of the telephone material involving Witness I concerning the Zakaria shooting was tendered and marked Exhibit 6J (T.3357, 20.6.2016). On 4 November 2013, he received four incoming calls between 2.12pm and 2.15pm from Mohammed Kalal. He received calls from the telephone associated with Jamil Qaumi throughout the day. 15. Between 2.35pm and 3.49pm, there were six calls which came from Jamil Qaumi's phone and placed Jamil Qaumi at Pendle Hill at the time. Witness I was at Merrylands for two of those calls and at Guildford for one of them (i.e. 3.49pm). At 4.03pm, Jamil Qaumi made and received a call from Witness I while he was at Guildford Station and Witness I was at West Pennant Hills. He received four further calls between 7.15pm and 7.16pm. He gave evidence that these telephone calls were about Jamil Qaumi coming to see him. 16. At 8.22pm there were two outgoing calls made by Witness I to Witness D. At 8.24pm there was an incoming call from Witness D. Witness I gave evidence that these calls were because Jamil Qaumi had asked Witness I to ask Witness D if he would come down to Witness I's area. Two outgoing calls were made to Witness D at 9.12pm and 9.28pm and two incoming calls were received from Witness D at 9.40pm and 9.42pm. Witness I said that these calls were to co-ordinate meeting up with Witness D. 17. Four outgoing calls were made by Witness I to Witness C, two at 9.53pm, at 9.54pm and at 10pm. One incoming call was received from Witness C at 9.59pm. At 12.51pm on 5 November 2013 (i.e. after the shooting), Witness I received a text message from Mumtaz Qaumi saying "Can u go and see Mudy". Witness I was not sure who Mumtaz was referring to when he said "Mudy". 18. Witness D gave evidence that late on the afternoon of 4 November 2013 he received a call to meet Jamil Qaumi and some of the other boys. He could not recall who was with Jamil Qaumi. They went to a house and he had a conversation with Farhad Qaumi, Jamil Qaumi and Witness I outside the house. One of the men said "How's the shooting and why did youse miss?". Witness D could not recall who said that or if anything was said in reply. Before the group left, Farhad Qaumi told them they were going to go and shoot Masood Zakaria and that Witness D was to lure Masood out of his house and then "The boys gonna shoot him". Witness D recalled he said to Farhad Qaumi "Nah, I know him" because he did not want to shoot Masood but Farhad Qaumi said "Youse got to, he's gonna get hit, he's gonna get shot". Witness D also recalled that Farhad Qaumi said that if they did not do the shooting, then "It was gonna be us, we're gonna get shot". 19. Witness D, Jamil Qaumi, Mohammed Kalal and Witness I all met at Witness L's house and Witness D saw a shotgun and a handgun, like a revolver, being loaded with bullets in the lounge room. Mohammed Kalal was given the shotgun and Witness I the revolver. 20. Witness D said that Witness C arrived some time later and drove him, Mohammed Kalal and Witness I with the firearms to Masood's house. The rest of Witness D's evidence was consistent with the evidence of Witness I as to travelling to Zakaria's house and the shooting thereafter taking place. 21. In cross-examination, Witness D agreed that there was a meeting before the Zakaria shooting and after the Odisho shooting in Westmead in which he, Farhad Qaumi, Jamil Qaumi and "this lady came in a car". Witness D did not know who the lady was, nor could he identify her as Witness M as it was dark. Witness D disagreed with the suggestion that Farhad Qaumi was not present for that meeting. 22. Witness D was asked whether he saw Masood's sister after Masood's father opened the door and he answered "Not at the time of the moment, I don't remember" but stated "yes" when asked if he saw Masood's whole family. He confirmed that Farhad Qaumi told him before the shooting that if he could not get Masood out of the house, then he should ask for his brother Dawood and get him out of the house. Witness D agreed, after being shown phone records, that he had exchanged a number of telephone calls with Witness I before the shooting, but could not recall the substance of those conversations. 23. Under cross-examination, Witness D initially said that the meeting was at Wentworthville and then he said it was somewhere in the west. Witness D said that Farhad Qaumi, Jamil Qaumi and Witness I were present at the meeting. Witness D made no mention of Mumtaz Qaumi being at the meeting. Under cross-examination, Witness D recalled that after the group arrived at Witness L's house, Jamil Qaumi was giving orders about the firearms to Mohammed Kalal and Witness I. Witness D recalled seeing the firearms being loaded but could not remember by whom. He agreed that he told the police that he thought it was Witness L or Jamil Qaumi. 24. Counsel for Farhad Qaumi was critical of the evidence of Witness I based on telephone intercepts and the location of mobile telephone cell towers. 25. The Crown tendered a map marked by Witness I, indicating the location of the park where the meeting took place (Exhibit 6Xs). The park was in the Blacktown area. Witness I marked Sarkhel Rokhzayi's house on the map. He also said "The map says Jones Park but we call it Merrylands Park". In cross-examination Witness I confirmed that Jones Park was the park where he said the meeting took place before the Zakaria shooting. He marked another map to confirm where the meeting took place (Exhibit 58). 26. Farhad Qaumi submitted that the telephone records indicated that the phone associated with him (xxx xxx147) was in the Central Coast on the morning of 4 November 2013 (Exhibit 10Ys). In the early afternoon, there were calls made to and from the phone consistent with the user of the phone travelling down to Sydney from about 8.30pm. The user of the phone was in Granville North until about 9.24pm and in the May's Hill tower area at 9.29pm. The phone records placed the phone in the May's Hill North area at 9.49pm and 9.54 pm (Exhibit 10Ns). Farhad Qaumi submitted that the phone records did not place him anywhere near Jones Park or Westmead. 27. Farhad Qaumi submitted that Exhibit 10Ks showed the areas covered by some of the cell towers relevant to calls made on the night of the Zakaria shooting. He submitted that Exhibit 10Ks showed that the cell tower coverage for the towers "Mays Hill A-1" and "Mays Hill A-3" and Mays Hill North not only did not cover Mays Hill but did not cover Jones Park, nor did they cover Westmead. 28. Farhad Qaumi noted that there was evidence from Detective Iverach that Farhad Qaumi's sister lived with her family in Collins Street, Pendle Hill which was just outside the probable coverage area for one of the cell tower called "Mays Hill" (Exhibit 77). 29. The telephone records of Witness C (Exhibit 7Js) and the telephone records of Witness D (Exhibit 8Fs) did not involve any calls to or from the phone said to be used by Farhad Qaumi, nor did the telephone records of Witness I (Exhibit 6Js). 30. Farhad Qaumi challenged the reliability of the evidence of Witness D. He referred to the answer "I'd love to" given by Witness D when asked by the police whether he was prepared to inform on the Qaumis. Farhad Qaumi submitted that this showed him to be hostile to them. 31. Farhad Qaumi also relied upon the psychological symptoms which Witness D had reported to health professionals, including that he had seen aliens in a park. When these matters were put to Witness D, he replied that he could not remember having said those things. 32. The summary of call charge records with respect to Farhad, Mumtaz and Jamil, Mohammed Kalal, Witness I, Witness D, Witness C and Witness L for 4 November 2013 became Exhibit 10N. Evidence of predicted probable coverage from cell tower sites associated with those telephone calls became Exhibit 10J. A large map, Exhibit 10K, was prepared. 33. The Crown submitted that the cell towers at Mays Hill, or Mays Hill North, associated with their telephone calls supported the conclusion that a meeting took place between approximately 9pm and 10pm. The Crown submitted that those records also confirmed the presence of Farhad, Mumtaz and Jamil Qaumi, Mohammed Kalal, Witness I, Witness D, Witness C and Witness L at the meeting. 34. The Crown submitted that Farhad Qaumi made or received mobile telephone calls associated with a cell tower located at Mays Hill or Mays Hill North between 9.29pm and 9.54pm. At 2.31pm his telephone had been associated with a cell tower location at Chapmans Hill, which is in the Wyong region. At 8.56pm and 9.24pm his telephone calls were associated with a cell tower at Granville North. The next call after the 9.54pm call was at 2.26am the following morning. The Crown submitted that taking into account the predicted probable coverage of the Mays Hill and Mays Hill North cell towers, and the approximate nature of the predicted coverage, Farhad Qaumi could well have been at a park from 9.30pm between Pendle Hill and Westmead. The Crown submitted that the lack of precision in the "predicted probable coverage" of the cell towers meant that they did not exclude the presence of Farhad at the meeting. 35. The Crown submitted that Mumtaz Qaumi received telephone calls at 9.38pm, 9.48pm and 9.50pm associated with cell tower locations at Mays Hill and Mays Hill North. The Crown submitted that those calls coming from Jamil Qaumi suggested that the two of them were not together. The Crown submitted that after 9.50pm there was no reason to conclude that Mumtaz Qaumi was anywhere else other than at the meeting. A telephone call to him at 10.18pm was associated with the cell tower at Mays Hill North. The Crown noted that Witness I described Witness D and Mumtaz Qaumi coming late to the meeting. Accordingly, the Crown submitted that the telephone calls between Jamil Qaumi and Mumtaz Qaumi between 9.38pm and 9.50pm associated with the cell tower at Mays Hill were consistent with Mumtaz Qaumi attempting to find the park or his fellow gang members within it. 36. The Crown noted that between 9.32pm and 9.50pm, Jamil Qaumi's telephone calls were associated with the cell tower location at Mays Hill, except for the call at 9.44pm which was associated with the cell tower at Westmead. The Crown submitted that this was consistent with Jamil Qaumi collecting Witness D from the Westmead railway station. The Crown submitted that Witness D's telephone calls to Witness I at 9.40pm and 9.42pm were consistent with him indicating his arrival or near arrival at that railway station. The Crown noted that Witness I's telephone calls were associated with a cell tower location at Mays Hill between 9.28pm and 10.08pm. 37. Jamil Qaumi gave evidence about events leading up to the Zakaria shooting which did not include a meeting. He said that he slept at his sister's house in Pendle Hill on the night after the Odisho shooting and went from Witness I's house to that of Witness L. His evidence was that he had not seen Farhad Qaumi from the time of the Casino visit on 2 November 2013 until he drove him to the airport on 5 November 2013. 38. It was submitted by Farhad Qaumi that because his sister lived in Collins Street, Pendle Hill close to the coverage of the Mays Hill cell tower, the coverage for which was coloured blue on Exhibit 10K, he could have been there rather than at a meeting planning the Zakaria shooting. There was, however, no positive evidence that Farhad Qaumi was at his sister's house at the time. Significantly, Jamil Qaumi denied that the meeting had occurred but did not give evidence of the location of the applicant or Mumtaz Qaumi at this time on that night. 39. It is not surprising that there is a lack of precision when identifying where the park was where the meeting was said to have occurred. The principal witnesses in the Zakaria shooting, Witness I and Witness D, variously referred to the park being in Wentworthville, Merrylands and Witness I eventually identified it as Jones Park. Witness D was not familiar with the area and had to be picked up from a nearby railway station. Witness I does appear to have been more familiar with this part of Sydney and by reference to the house of Sarkhel Rokhzayi, nominated Jones Park in Mays Hill as the place of the meeting. The fact that there was confusion as to the identity of the park is entirely understandable given the way in which the Blacktown BFL operated. Having discussions in a park where they could not be overheard prior to a shooting, or other criminal activity, was a regular occurrence for members of this gang. One could well understand why the identity of any particular park would not be remembered given that planning activity of this kind was regularly carried out. 40. The matter is further complicated because the probable coverage of the cell towers was at best rough and approximate and could easily cover Mays Hill and Jones Park, which were not particularly far away. This is so even though the cell tower records did not identify the telephone calls either coming or being received from that precise location. Significantly, however, the cell towers did support the proposition that the telephone calls were being sent and received in this area of Sydney, although not necessarily from Jones Park in Mays Hill. 41. It also needs to be remembered that there was a considerable body of evidence from Witness L, Witness D and Witness l which implicated Farhad and Jamil Qaumi in the solicitation of others to murder Zakaria and to cause grievous bodily harm with an intention of so doing. That evidence was given over a considerable period of time and the witnesses were firmly and extensively cross-examined. The jury were well aware of the need to be careful when assessing that evidence. This Court has not had the benefit, which the jury had, of seeing and hearing those witnesses. Even allowing for the possible difficulties created by the evidence concerning predicted coverage by the cell towers, the evidence of those witnesses, if accepted by the jury, was sufficient in itself to allow them to find beyond reasonable doubt that Farhad and Jamil Qaumi were guilty of those offences. 42. Accordingly, there was sufficient evidence for the jury to be satisfied beyond reasonable doubt that Farhad, Mumtaz and Jamil Qaumi had been present at the meeting where Farhad Qaumi and Jamil Qaumi had solicited the murder of Masood Zakaria and had agreed that this should occur. Significantly, Masood Zakaria was not shot but his sister was. This was a crime that was readily foreseeable as a real possibility given what had occurred only two days before in the Hamzy shooting. 43. It is important to note that the Crown did not rely upon joint criminal enterprise with respect to the charge of soliciting the murder of Masood Zakaria against Mumtaz Qaumi. The jury's inability to reach a decision with respect to the charge of soliciting the murder of Masood Zakaria against Mumtaz Qaumi can be explained by the conflict between Witness I and Witness D concerning who had directed Witness D to lure Masood Zakaria from his house. In the sentence judgment, the trial judge gave this as an example of "the jury's careful discernment between the counts in the cases made against each accused" (R v Farhad Qaumi; Mumtaz Qaumi and Jamil Qaumi (Sentence) [2017] NSWSC 774 at [25]). 44. Jamil Qaumi gave this evidence about the meeting at Witness L's house that night (T.5994-5995, 23.8.16): Q. What happened when you got to [Witness L's]? A. We were just all hanging out inside the house and him and – [Witness L] and [Witness I] went into the room, smoked some ice. … Q. Who were you with? A. It was me, Moey, [Witness L] and [Witness D] and [Witness I]. Q. You all went into the house? A. Yeah, we went inside the house, yeah. Q. You said that at one stage [Witness I] and [Witness L] left the room? A. Yes. Q. And what happened after that? A. They came out about – after about ten minutes and they said, "We're going to go shoot at Masood's house tonight." … Q. Is that something you knew back then or something you found out later? A. No, I knew that then. Q. And when that happened? What else do you remember happening? A. Well, [Witness L] was paranoid, saying that Mikey's seen [Witness I's] face the night before and that he was going to retaliate for Mikey, and Masood knows where [Witness L] lives, he's five minutes away from him." 1. Witness I did not reach Masood Zakaria's front door. There is no evidence that he discharged the revolver he was carrying. Forensic evidence suggested that the only weapon discharged was the shotgun Mohammed Kalal was carrying. 2. CCTV footage taken from the house next door to the Zakaria residence was played to the jury (Exhibit 4N). This footage was consistent with the evidence provided by Witness D and Witness I about the sequence of events immediately preceding the shooting, i.e. Witness D approached the door first while Witness I and Mohammed Kalal hid beside the house. Witness D ran from the house and Mohammed Kalal approached the house with the shotgun with Witness I behind him and five to eight seconds later both men ran from the house. 3. Unlike the Odisho shooting, or the Chokolatta Café shooting, there was only one shooter and he was an accused rather than an informer witness. Direct evidence of the shooting came from Masood's sister who suffered grievous bodily harm as a result of being shot, and from her father. 4. The trial Judge directed the jury that to convict on Count 8 they needed to be satisfied that Mohammed Kalal had an intention to murder when he fired the shotgun (SU 482). The jury acquitted all accused of Count 8, which alleged that grievous bodily harm was caused to Masood's sister, with intent to murder Masood Zakaria. 5. The jury convicted on Count 9, the alternative to Count 8, which alleged that grievous bodily harm was caused to H with an intent to do grievous bodily harm to her or another. The jury must have at least had a doubt based on the evidence of Masood's sister that when Mohammed Kalal fired the shotgun hitting her, Masood Zakaria was present and the target of Mohammed Kalal's discharge. That in turn would have led to a doubt as to whether he had an intention to kill when he fired the shotgun. 6. It can be inferred, however, that the jury must have been satisfied nevertheless that Mohammed Kalal had an intent at the time to cause grievous bodily harm to whomever he was firing at. Mohammed Kalal therefore committed an offence that was not agreed to by Farhad, Mumtaz or Jamil Qaumi but must have nonetheless been foreseen by them as a possible incident of the agreed crime, given what had occurred at the Hamzy shooting. The failure of the jury to reach a verdict in respect of Mohammed Kalal on this count must have been related to his claim of duress, not whether he possessed an intent to do grievous bodily harm when he discharged the shotgun (R v Farhad Qaumi; Mumtaz Qaumi and Jamil Qaumi (Sentence) at [26])). 7. It follows, therefore, that it was open to the jury to convict Farhad Qaumi and Jamil Qaumi of soliciting the murder of Masood Zakaria and to convict Farhad and Jamil Qaumi of shooting at Masood's sister with intent to do grievous bodily harm pursuant to a joint criminal enterprise. 8. The position of Mumtaz Qaumi in relation to the Zakaria shooting differs significantly from that of his brothers. Firstly, the jury was not prepared to convict him of count 7, i.e. the solicit to murder count. More importantly, there is a lack of evidence of any real participation on the part of Mumtaz Qaumi in furthering the execution of the agreement to shoot Zakaria. The only evidence which attributes any participation by Mumtaz Qaumi comes from Witness I. It is to the effect that he directed Witness D to encourage Zakaria, whom he knew, to come outside the house so that he could be more easily shot. Witness D did not support that evidence and attributed the order to Farhad Qaumi. 9. To establish participation in an extended joint criminal enterprise, it is necessary to show that Mumtaz Qaumi was a party to the original agreement to shoot Zakaria and that he participated in some way. On the facts of this case, it is not sufficient that he attended the meeting in the park and that he held a leadership position in the Blacktown BFL. This is because Farhad Qaumi, who was the leader of the gang, was also present and giving directions as to how the shooting should take place. It is not enough that the presence of Mumtaz Qaumi at the meeting demonstrated his endorsement of the plan and therefore constituted a step in furthering the execution of the extended joint criminal enterprise. 10. The only evidence of Mumtaz Qaumi furthering the execution of the extended joint criminal enterprise came from Witness I and is to the effect that Mumtaz Qaumi directed Witness D to persuade Zakaria to leave the protection of his house so that he could be shot. That evidence is controversial. Not only is there an issue as to whether Mumtaz Qaumi was present at the meeting, but there is no corroborative evidence that he did or said anything at the meeting. It follows that even if the jury accepted that the evidence of Witness I on this issue was accurate, this evidence is not sufficient to establish beyond reasonable doubt that Mumtaz Qaumi took any positive steps to bring about the shooting of Zakaria. This is a doubt which the jury should have had. Accordingly, I am left with a reasonable doubt that even if Mumtaz Qaumi was at the meeting, he did anything to advance the plan which had been conceived by his brothers. 11. I have concluded that Mumtaz Qaumi should be acquitted on Count 9 and that a verdict should be entered in his favour in relation to that Count. The Chokolatta Café shooting on 7 November 2013 – Counts 10, 11, 13 and 15 1. On 7 November 2013, a further shooting took place outside the Chokolatta Café in Bankstown. The target was a man called Abdul Abu-Mahmoud ("Abs"). He was targeted while sitting in a car outside the café with two other men. The motive for the shooting was that Mr Abu-Mahmoud was believed to have access to the addresses of the leaders of the BFL Blacktown and might provide those addresses to the BFL Bankstown group. The shooting took place while Farhad Qaumi was overseas and Mumtaz Qaumi had the leadership of the Blacktown BFL. 2. There was evidence that Witness M and others attended the Chokolatta Café early on the evening of the shooting so that she could identify Mr Abu-Mahmoud to those who had been ordered to carry out the shooting. There were telephone intercepts in which Jamil Qaumi gave various directions to Witness I and text exchanges between Jamil Qaumi and Witness M. 3. It was the Crown case that Mumtaz and Jamil Qaumi directed Witness I to drive Witness D and Mohammed Kalal to the café at around closing time, to block Mr Abu-Mahmoud's car when he left the café and to then shoot him while he was still in the car. 4. As it turned out, Mr Abu-Mahmoud got into his car with two other men and all three were sitting in the car when the shooting occurred. Witness I blocked the car and Mohammed Kalal, armed with a .38 calibre revolver, and Witness D, armed with a shotgun, opened fire on the car. Fortuitously, police were conducting surveillance and telephone intercepts on Jamil Qaumi at the time. 5. Two of the occupants were struck by shotgun pellets but have made a full recovery. Ballistics evidence showed that projectiles fired from the shotgun struck the top of the back of the driver's seat. The ballistics evidence supported Mohammed Kalal's case that he fired the revolver into the side of the car. 6. The jury was unable to agree upon verdicts in respect of Mohammed Kalal on the counts arising out of the Chokolatta Café shooting. 7. Jamil Qaumi does not challenge his conviction on Counts 10 and 11. Mumtaz Qaumi relied upon two bases for arguing that his guilty verdicts for the Chokolatta Café shooting were unreasonable. The first asserted a paucity of evidence implicating him in the preparations for the shooting and the second contended that despite the principles of extended joint criminal enterprise, he could not be guilty of shooting Khalil Khalil and Hassan Soueid (the passengers in the vehicle) with intent to murder them because an intent to murder had not been established in respect of those persons who were unexpectedly in the car. Jamil Qaumi also relied on this submission in his appeal against conviction on Counts 13 and 15. It should be noted that Jamil and Mumtaz Qaumi accepted that the evidence was capable of establishing the specific intention to kill Abdul Abu-Mahmoud and to inflict grievous bodily harm upon Khalil Khalil and Hassan Soueid. The basis of the challenge by Jamil and Mumtaz was the proposition that the evidence was not capable of establishing the specific intent to murder Khalil Khalil and Hassan Soueid (R v Qaumi and Others (No 60) [2016] NSWSC 1160 at [4]). 8. The principal evidence for this incident came from Witness M, Witness I, Witness D, Jamil Qaumi, Witness L and Detective Iverach. Leaving aside the evidence of Detective Iverach and of Jamil Qaumi, the effect of the evidence of the other witnesses was as follows. 9. Mumtaz Qaumi, Jamil Qaumi, Witness D, Mohammed Kalal, Witness I and Witness M met in Rosehill approximately two streets away from the McDonalds restaurant at Thornleigh. When they arrived, Witness M told them "Abs is getting everyone's address and we gotta get Abs". Mumtaz Qaumi was said to have told Witness I and Witness D that they had to "get Abs". Jamil Qaumi told Witness I to call his friend, Sarkhel Rokhzayi and obtain the shotgun and revolver that Witness I had left with him after the Odisho shooting. 10. Police surveillance (Exhibit 4M) at 8.24pm, was able to establish that a blue Mazda rental car being driven by Jamil Qaumi with Witness M, Witness D and Witness I as passengers drove towards the Chokolatta Café in Bankstown. Their purpose was to allow Witness M to identify Abdul Abu-Mahmoud. That vehicle returned to the meeting place at 9.18pm. 11. Witness M's evidence was slightly different. She said that it was Mumtaz Qaumi not her who was the first to tell everyone that "Abs" was a threat and that he needed to be shot. Her evidence was that Mumtaz Qaumi was responsible for this initial planning and the direction given to everyone to "get Abs". 12. Police surveillance and the evidence from mobile phone cell towers as to the location of the phone used by Mumtaz Qaumi established that this evidence was not correct insofar as it described the movements of Mumtaz Qaumi and anything said by him. Police surveillance established that Mumtaz Qaumi did not arrive at the meeting place near McDonalds until 9.20pm. Police surveillance established that Jamil Qaumi and Mumtaz Qaumi drove away from the meeting place at 9.54pm. The other two cars, being Witness M's and the blue Mazda rental, also left the meeting place at that time. Accordingly, Mumtaz Qaumi was at that location for approximately 34 minutes. It was the Crown case that this allowed Mumtaz Qaumi to give the instructions attributed to him earlier that night. 13. Witness I gave evidence that it was during that period, i.e. 9.20pm and 9.54pm, that Mumtaz Qaumi explained how to block Mr Abu-Mahmoud's car so that he could not drive away from the shooters. 14. Witness M, after identifying Mr Abu-Mahmoud and the Chokolatta Café, drove away and played no further part in the events of that night. 15. Upon leaving the meeting place, it was the evidence of Witness I and Witness D that they drove to Sarkhel Rokhazayi's house in Merrylands and collected the shotgun and revolver used in the Odisho shooting. They then went to Jones Park, which was near to Sarkhel Rokhazayi's house, where they met Mumtaz Qaumi, Jamil Qaumi and Mohammed Kalal. Witness I said the firearms were loaded by Mumtaz Qaumi and Jamil Qaumi. 16. Witness L gave evidence that he was asked to bring some gloves to Jones Park. When he arrived at the park, he saw Mumtaz Qaumi, Jamil Qaumi, Mohammed Kalal, Witness D and Witness I. Witness L said that Mumtaz Qaumi told him "We're getting Abs today". 17. Jamil Qaumi gave evidence that Witness M had called him and then organised to meet him at the Thornleigh McDonalds restaurant. She told him about Abu-Mahmoud and how he was going to release their addresses to "LC". Jamil Qaumi said that he met Mohammed Kalal, Witness I and Witness D at Mohammed Kalal's place and passed on to them what Witness M had told him. He met Witness M at the Thornleigh McDonalds when he was accompanied by Mohammed Kalal, Witness I and Witness D. He asked her to tell them what she had told him. She told them about the threat and that she would point out to them who "Abs" was. She then went with Jamil Qaumi, Witness I and Witness D in the blue Mazda to Bankstown to identify "Abs" as they drove around the block and passed the Chokolatta Café a few times. 18. Jamil Qaumi said that when they returned to the meeting place at 9.20pm, Mumtaz Qaumi was there. Witness M told him about "Abs" getting their addresses. Jamil said that when they left the meeting place, he was accompanied by Mohammed Kalal and Mumtaz Qaumi. He estimated the time to be about 10pm. He drove to the park (Jones Park) next to Sarkhel Rokhzayi's house. When he got there, he telephoned Witness L to tell him what Witness M had said and directed him to bring some gloves with him. He gave the following evidence: "Q. So what happened then? A. [Witness I] arrived. [Witness I] got into the Mazda and [Witness L] and [Witness I] were talking and then [Witness I] said he forgot how to get to Chokolatta and he said if I can show him, ask me if I can show him and I said "yeah" and then we left. Q. Where did you drive to? A. Bankstown. Q. Were you there for long? A. No. Q. We've seen some CCTV footage at around 10.30pm, is this the time you're talking about? A. Yes. Q. So this wasn't at the time of the shooting? A. No. Q. When you drove to Bankstown on that occasion who did you have in your car? A. It was just me and Mumtaz. Q. Was [Witness D] in your car at any time? A. No. Q. During that trip? A. No. Q. Was Mohammed Kalal in your car at any time during the trip? A. No. Q. Were you tailing or driving behind the Mazda at any time during that trip? A. No. Maybe towards the end, yeah. Q. Did anyone get in or out of your car when you were in Bankstown? A. No. Q. If you weren't there for long, where did you go after that? A. Back to the park. Q. Which park? A. Same park, Parramatta park. Q. Do you remember what happened after that? A. I think before that I dropped Mumtaz off at his car at Rosehill then went back to the park." (T.6011.30-6012.26) 1. Witness I confirmed that after driving to the park, he drove back to the Chokolatta Café in Bankstown, led by Jamil Qaumi and Mumtaz Qaumi. Witness I explained that neither he nor Witness D could remember the location of the Chokolatta Café so Jamil Qaumi and Mumtaz Qaumi had to show them where it was. Witness I gave evidence that it had been arranged that Jamil Qaumi and Mumtaz Qaumi would remain nearby, wait for the shooting to be completed and then take the shooters in their car while Witness I left with the firearms. 2. Witness I, Mohammed Kalal and Witness D waited in the rental car. Jamil Qaumi and Mumtaz Qaumi waited for a while but then drove away. Eventually, Abdul Abu-Mahmoud came out of the café with two other males. He sat in the front passenger seat of a dark coloured BMW. Witness I then drove and stopped behind the BMW to block its departure. Witness D and Mohammed Kalal got out of the rental car and started shooting at the BMW. Witness D had the shotgun and Mohammed Kalal the revolver. They returned to the rental car and drove back to Merrylands where by arrangement, they met Jamil Qaumi. Witness I, Mohammed Kalal and Witness D parked nearby and left the firearms in the rental car. Jamil Qaumi drove away with Mohammed Kalal. Witness I left with Witness D and took the firearms to Sarkhel Rokhzayi's house. Witness I and Witness D were arrested there. Jamil Qaumi and Mohammed Kalal were also arrested. 3. The Crown submitted that in the absence of Farhad Qaumi, Mumtaz Qaumi held the most senior position within the Blacktown BFL. The Crown submitted that it was inconsistent with that role that he simply drove down from the Central Coast to hear what Witness M had to say about the risk posed by Abdul Abu-Mahmoud. Jamil Qaumi acknowledged that they were all worried about what Witness M told them. He was in fact prepared to make the following admission in cross-examination: "Q. This is at a time Mumtaz is there as well? A. Yes. He was, yeah. Q. Because shortly after this you and Mumtaz drive to Chokolatta café to show on your evidence the others in the rental car where the Chokolatta case is, is that correct? A. Yeah. He didn't know how to get there, yeah. Q. So you had been desperately trying to get these firearms brought back to where you were is that correct? A. I said to him hurry up, yeah. Q. Because you wanted this shooting to be done? A. Yeah we all did, yeah. Q. And Mumtaz wanted it to be done? A. No. Mumtaz was just there because I asked him to be there. Only reason I called him down is to tell him what [Witness M] told me and I was worried so I told him to move houses. And he did and the next week he was in Brisbane." (T.6183.23) 1. It was of course open to the jury to reject that last question and answer and prefer the earlier one. On the basis of all of the above evidence, it was well open to the jury to find beyond reasonable doubt that Mumtaz Qaumi was soliciting the murder of Abdul Abu-Mahmoud, either directly or as part of a joint criminal enterprise with Jamil Qaumi. 2. The occupants of the BMW were Abu-Mahmoud, Khalil Khalil and Hassan Soueid. The Crown alleged that all three had been shot at with intent to murder and that Mumtaz Qaumi was guilty of those three offences, pursuant to the principle of extended joint criminal enterprise. Witness D (using cups available in the witness box) explained how the shooting occurred. His explanation was "We just got out and shot at him" (T.4220.45). Witness D also explained "Then we got out and shot at the car" (T.4226.17). Witness D was on the driver's side of the BMW and Mohammed Kalal was on the passenger side. Witness D was not able to explain the intent that accompanied his firing of the shotgun. Nevertheless, it was open to infer what that intent must have been based on all of the available evidence. 3. Shotgun casings located by the police after the shooting, indicated that Witness D had fired four times. Mohammed Kalal appears to have been focused upon shooting Abdul Abu-Mahmoud and/or Khalil Khalil. The damage to the BMW was consistent with him targeting the front passenger seat by firing three times (Exhibit EE; photograph 91). Witness I agreed that he had told police that Mohammed Kalal ran to the passenger side of the BMW, pointed and started shooting the revolver towards Mr Abu-Mahmoud. 4. Khalil Khalil gave a statement to police, dated 7 November 2013, which was read into evidence. The BMW was his and he drove it to the Chokolatta Café on the night of 6 November 2013. He described a period of time while he was there with Abu-Mahmoud and Hassan Soueid. When they left the restaurant, they all went to the BMW and Khalil got into the driver's seat. Mr Abu-Mahmoud got into the front passenger seat and Hassan Soueid sat in the back seat in the middle. 5. Khalil described Witness D walking to the BMW with a shotgun. Khalil hid behind the steering wheel and heard a single gunshot. He heard a shotgun being pumped and the second shot smashed the driver's side rear window. It was his belief that the shotgun had been fired again through the same window. Khalil said "From the angle of where the man was shooting, he would have been aiming for Abdul". Khalil described a further discharge of the shotgun which he said "Would have been aiming for me". 6. The Crown submitted that on Khalil's evidence, both he and Abu-Mahmoud were targeted in circumstances where an intent to kill could be inferred from the use of the shotgun and from the instructions given by Mumtaz Qaumi when he solicited the murder of Abu-Mahmoud. 7. Hassan Soueid gave two statements to police, dated 7 November 2013 and 14 November 2013. Those statements were read into evidence. He described getting into the middle of the back seat of the BMW. He heard a loud noise and felt something hitting the back of his head and right shoulder area. He ducked down and lay along the back seat during the remainder of the shooting. 8. Both Abu-Mahmoud and Hassan Soueid were injured by shotgun pellets. Hassan Soueid received injuries to the back of his skull, right shoulder and right bicep. Abu-Mahmoud also had subcutaneous shrapnel under the skin at the back of his head and neck, again to the right side of his body. 9. Witness D was shown a photograph of the damaged BMW being 102 of Exhibit EE by counsel for Farhad Qaumi. This photograph showed the damage to the head rest of the driver's seat caused by the shotgun. Witness D agreed that if the driver had been sitting normally, he would have had his head blown off. 10. It was well open to the jury to find that Witness D and perhaps also Mohammed Kalal fired at all three occupants of the BMW with an intent to kill each one of them. That result must have been foreseen by Mumtaz and Jamil Qaumi as a real possibility as a result of directing Witness D and Mohammed Kalal to shoot and kill Abu-Mahmoud. Given the damage to the head rest of the driver's seat of the BMW, Witness D appears to have fired in that direction and thus have intended the death of Khalil Khalil. Hassan Soueid also suffered injury pursuant to one of the four discharges of the shotgun. Because of that, one can readily conclude that he was also targeted. 11. Moreover, given what had occurred in the Hamzy and Zakaria shootings, it must have been within the contemplation of Mumtaz and Jamil Qaumi that innocent associates of the proposed target might also be shot. 12. Witness I acknowledged that there had been a conversation between him, Witness D and Mohammed Kalal about not carrying out the shooting or alternatively, just shooting at the car. Witness I when cross-examined by counsel for Mohammed Kalal, accepted that it "could have been" part of the agreement to shoot at the car rather than the occupants. Jamil Qaumi gave evidence that the shooters were going to shoot at the car not its occupants. Whether the persons who discharged the firearms had an intention to kill was a question of fact for the jury. In spite of any evidence given by the shooters to the contrary, the physical evidence was capable of supporting the inference that there was an intention to kill. Accordingly, it was open to the jury to reject that evidence and to draw inferences from their own observations of the photographs and the damage to the BMW. The evidence of what actually occurred is the best evidence of whether Witness D and Mohammed Kalal were shooting at the occupants of the car or merely at the car itself. 13. It was well open to the jury to find beyond reasonable doubt on the basis of that material that the shooters were aiming at the occupants of the car. It was also well open to the jury to convict Mumtaz and Jamil Qaumi of Counts 13 and 15, pursuant to the principle of extended joint criminal enterprise. This was because although their intention was to shoot Abu-Mahmoud and kill him, Mumtaz and Jamil Qaumi must have foreseen the possibility that the persons in the car would also be shot at with an intention to kill them. Whether the person who discharged the firearm had an intention to kill was a question of fact for the jury. 14. Although it was open to the jury to find that the shooters fired with an intention to cause grievous bodily harm rather than death, the jury was not compelled to make that finding. Nowhere in their submissions do Mumtaz and Jamil Qaumi explain why the jury could not conclude from the actions of two people, one of whom had a shotgun and fired four times, and the other who had a revolver and fired at least three times, that their intention was to kill not merely to cause grievous bodily harm. The Greenacre Elkadi shooting – 28-29 November 2013 – Count 18 1. The Crown case was that the Elkadi shooting took place outside townhouses 28 and 29 at 142 Greenacre Road, Greenacre at about 1am on 29 November 2013. The charge against Farhad and Mumtaz Qaumi was that "in the course of organised criminal activity they discharged a firearm with reckless disregard for the safety of others". There was no evidence that either Farhad or Mumtaz Qaumi were present at the shooting. There was no forensic evidence linking them to the shooting and no admissions by Farhad and Mumtaz Qaumi that they were involved in the shooting. The Crown case was almost entirely based on the evidence of Witnesses L and M. 2. Witness L gave evidence that Farhad and Mumtaz Qaumi arrived at his new address in Penrith on 28 November 2013. Witness L said that this meeting took place at Orchard Hills in the Hills area. Witness L said that Witness M was not present. Witness L said that Farhad told him that a former member of the Blacktown BFL, Sina Mirzaei, had been shot and that they had to retaliate. Witness M was telephoned. Witness M did not remember how it came about but said that she met with Mumtaz, Witness L and Farhad at a park in Villawood. 3. Her evidence was: "A. … Farhad was very angry, he was screaming because Sina Mirzaei's house got shot and – Q. Is this something he's saying? A. Yes, this is what he's telling me. Q. Doing your best – A. Yes. Q. – what was said by Farhad? A. Farhad told me that Sina Mirzaei's house got shot and that he thought it was from – like LC's crew because they – he thought that they, he said that he thought that they would have thought that because [witness I] and [Witness G], that Sina was also linked to Farhad, so they were retaliating. And that even though he hated Sina, he had to – he's not gonna let anyone laugh at him and he needed to retaliate. Q. Was anything else said? A. He said he's gonna shoot at – he wants [Witness L] to shoot at LC's mum's house. Q. So who said that? A. Farhad. Q. Was there further conversation? A. He said that he only had to shoot at the house, like to send a message, and he asked me where the mum lives. Q. Who asked you that? A. Farhad. I can't remember what I said to him but he told me, "Don't fucking lie, you've been there heaps of times." And he told me that I'm gonna drive [Witness L] to do it. Q. Did you know at the time? Did you know where Mohammed Hamzy's mother lived? A. Yes. Q. And had you been to that location? A. Yes, plenty of times. Q. Whereabouts was that? A. Greenacre. Q. What happened? A. He went and got a – Farhad went and got a gun. He came back five minutes later and handed it to [Witness L]. It was wrapped in something. When [Witness L] looked at it, he said that it's the same gun that was used in the murder and that he didn't want to get pulled over with it. Farhad said that he didn't give a fuck and stop making excuses, he has to do it. I can't remember. Then we left I think." (T.2274.21-2275. 26.5.2016) 1. Witness L and Witness M then travelled by car to Greenacre. Witness M's evidence continued: "Q. What happened when you got to that area? A. When we got there we stopped at the – like, the top of the driveway because it was – his mum lives in like a complex so there's all houses going down the driveway. Q. So you're saying "his mum", whose mum? A. LC's mum. [Witness L] jumped out of the car and went down and had a look. I could see all lights on. He came back and he said that there's too many people down there so we went and we parked somewhere for like half an hour. Me and [Witness L] discussed not doing it but [Witness L] had told him that Farhad had threatened him and his family and Farhad had also threatened me and my family, so. And then [Witness L] said, "Look, we can't wait any longer, we're taking too long, Farhad's gonna get angry". So we drove back again. I stopped on the main road at the top of the driveway. [Witness L] ran down. And I heard gunshots and then he ran back and jumped in the car and we drove back to Farhad and Mumtaz in Villawood. Q. When you say to Villawood, was it to the same location – A. Yes. Q. – you came back from? What happened when you got back to Villawood? A. Farhad took the gun and went somewhere and put it wherever it came from and they said to meet them at Blacktown at this dead end where they always used to meet." (T.2275.40-2276, 26.5.2016) 1. Forensic examination confirmed from the bullets fired in this incident, that Witness l was given the .45 pistol that had been used in the Hamzy shooting and not recovered by police. 2. Witness L's evidence was somewhat different from that of Witness M in that he described a meeting at his house in Penrith with Farhad and Mumtaz Qaumi and gave the following evidence: "Q. Just go through that again? A. He's calling me saying, "Hey, how are you?", stuff like that. Then he goes to me, "What's your address? I want to come see you." I gave him my address. I don't know whether I text him or verbally told him, I don't know, I got my missus to do it, then they came. Q. Who came? A. Mumtaz and Farhad. Q. When you say they came, is that to the address you gave? A. Yes, came to the address I gave them. Q. So they came to your house, is that right? A. Yes. Q. And this is this new address? A. Yes. Q. What happened when they arrived at your house? A. So basically they ask me, "Have you watched the news?". I told them, "No, what happened?" Goes, "… got shot last night". So I goes to him, "No, I didn't know". He goes to me, "You have to retaliate about that." Q. Is that [Witness G]? A. Yeah, [Witness G] … Sina Mirzaei got shot. Q. Did you know about it? A. I didn't know until they told me. Q. Who was it that said that to you, "Have you watched the news?" A. Farhad. Q. Was it him that told you that [Witness G's] got shot last night? A. Yep. Q. Who was it that said, "You've got to retaliate"? A. Farhad. Q. Was anything else said? A. Then after that I told him, "What do you care Farhad? [Witness G] and [Witness L's] locked up. What do you care?". He goes, "Nah, nah, nah, I want to do it for [Witness G]". I go to him, "They're locked up, what do you care?" He goes, "You know what, fuck this, the hairy c---, I was using him anyway". He goes, "… had an argument with LC inside the prison so you have to retaliate because of that". Q. When he said, "I want to do it for …" A. Yes. Q. Q. who did you understand that to be? A. [Witness G]. Q. [Witness G]? A. Yes. Q. At that time you said Farhad is speaking to you, is that right? A. Yes. Q. Where is Mumtaz? A. Next to him. Q. What happened after Farhad said those things to you? A. He goes, "We have to retaliate", this, that. "I was using him. You have to do it for my brother now". He goes, "You have to do it". So I went inside and got changed. I came out, so after that I was wearing dark clothing. So I came outside, I jumped in their car, then we went next to my house. Like not racing but about 10 minutes' drive from my view, a little spot that they took us there. He took us there. Then he called [Witness M] to get there. Q. Who called [Witness M]? A. I don't know, Farhad or Mumtaz, one of them, they called [Witness M] to come there. Q. You said he said that "you have to do it" – A. Yep. Q. – "for … now". Was anything said about what he wanted you to do? A. Basically want me to go shoot someone. Q. Did you know who at that stage? A. At that stage, no. Q. You said there was a call to [Witness M], is that right? A. Yes. Q. This is where you're in a spot about 10 minutes' drive from your house? A. Yes. Q. Did you speak further with either Farhad or Mumtaz whilst at that location? A. So as we waiting there, he goes to me – as we're waiting for [Witness M] to get there, he goes, "Go shoot LC's mum's house". Q. Who said that to you? A. Farhad's telling me that. I go to him, "But I don't want to shoot a girl, you know". He goes, "No, no, you have to do it". I said, "But I'm not gonna do it, I'm not gonna shoot the woman". He goes, "Okay then, do a drive by." Q. Who is telling you that? A. Farhad. Q. Anything else said? A. By then [Witness M] came, so they ask her, "Do you know where she lives and everything?". She goes, "Yes". Q. There is a conversation when [Witness M] arrived, is that right? A. Yes. Q. Who spoke to [Witness M]? A. Farhad. Q. What did Farhad say to [Witness M]? A. "Do you know where LC's mum lives?". [Witness M] said, "Yes". He goes, "We're gonna shoot LC's mum's house". That's when we jumped in the car, we went to near Granville area, we were waiting in the park. So he's telling me what to do. Farhad's telling me now what to do." (T.2848.3-2850, 8.6.2016) 1. Witness L said there was a further discussion at a park in Granville. "Q. At that location, so what happened there? A. Basically Farhad's telling me what to do now. Q. What did he tell you? A. He's telling me, as I said before, he goes, "Go get his mum" again. I said, "I don't want do the woman, I don't want to shoot the woman," you know. Then [Witness M] said, "LC's mum and sister, they live next to each other," you know what I mean. Farhad goes to me, "Okay, do the drive by on both their house then." Then [Witness M] described the house, how's the house gonna go and everything. Goes, "It's down the hill, all the way at the end, that's where they live." Then that's when I went jumped in [Witness M's] car." (T.2850.34, 8.6.2016) 1. Witness L said that Farhad Qaumi gave him a pistol that was wrapped in a tea towel and gave the following evidence of what occurred when they arrived at Greenacre: "Q. What happened then? A. Then me and [Witness M] went towards LC's house. His mum's house. Q. And was that at Greenacre? A. Yes. Q. What happened? A. So basically [Witness M] goes to me the last – like, from the shoot, she goes, "Last house on the right, second last is his sister, the last one is his mother." So I jumped out of the car, I started walking towards – like there was a downhill sort of thing. I started walking towards there, I seen one of the neighbour's door open, they were eating dinner. So I turned around, I went back in the car. I told [Witness M], "The door is open, there is people there. When I shot it, they can hear it. So let's go around come back." So we went jumped in the car, she drove around. I don't know how long after, we came back again. Then I seen about four boys standing at the front of, like on top of the houses, you know, they were standing at the front of the street. Q. Standing at the front of the street? A. Yes. Q. Where were they in relation to the house? A. They were at the top of the street. LC's mums house is all the way down. So they were just standing out the front, there was about five of them standing out the front. Q. Okay. What happened? A. Then I told [Witness M], "There's people there." So we just waited around a bit more. Then [Witness M] goes to me, "Why don't you get these people." I go, "Who's these people?" She goes, "Some of them are from Bankstown and they are his cousins," talking about LC. So that's when I jumped out of the car, I went towards them. I started shooting at them. Q. What did those persons do? A. Just obviously they start running. Q. How many shots did you fire? A. I emptied the gun. Q. Sorry, you emptied the gun? A. Yes. Q. How many shots was that? A. I wouldn't have a clue. Q. How did you know the gun was emptied? A. I think it might have been a 45. I'm not sure exactly what, 38 or 45. Cause if it was a 45, because the barrel sticks out. And – Q. When it's empty? A. Yes. And when it's 38, when you click is nothing else will come out, you know. That's why I knew it was empty but I'm not sure which gun was it. Q. But whatever gun it was, you – A. Emptied the clip. Q. – knew the gun was empty? A. Yes. Q. What did you do then? A. I ran back to [Witness M's] car, we drove off. Q. Did you know if you hit any person? A. At that time, no." (T.2954.42-2856, 9.6.2016) 1. Witness L was cross-examined by senior counsel as follows: "Q. Did you and [Witness M] go together by car to Greenacre? A. Yes. Q. You looked into what you understood was a house occupied by relatives of LC, is that right, at Greenacre? A. Yes. Q. Did [Witness M] say to you, "Why don't you get these guys, that's LC's cousin and his mates"? A. Yes. Q. Did [Witness M] say, "Get them, just get them"? A. Yes. Q. Did you then start firing your gun at the house? A. Not at the house. Q. What did you fire your gun at? A. People." (T.2980.7, 10.6.2016) "Q. And there was mention of there being a drive by then on both their places, is that right? A. Yes. Q. So is it the case that when you left that meeting where Farhad and Mumtaz had been, that the only arrangement that was in place at that stage was that the houses of both Little Crazy's mother and sister were going to be the potential targets, is that right? A. Yes. Q. When you got there in the car, you say that you got out of the car and walked down the driveway some distance where you saw an open door and you saw people eating, is that right? A. Yes. Q. You decided you weren't prepared to do any shooting in the circumstances and went back to the car, correct? A. Yes. Q. Whilst you're waiting you saw some people, I think you describe them about four or five boys standing out the front? A. Yes. Q. And that is up closer to the roadway from where you understood Little Crazy's mother to be, which was right down the back, is that right? A. Yes. Q. So at that stage you were simply planning on sitting in the car, is that right? A. Yes. Q. Is it [Witness M] that said to you at that stage, "Why don't you get these people?" A. That's correct. Q. And you said, "Who are these people?" and [Witness M] said, "Some are from Bankstown and they are his cousins." They're [Witness M's] words, is that right? A. Yes. Q. At that stage it was your intention to simply shoot at a house, is that right? Hold on. Up until she said that – A. Yes. Q. – it had been your intention to simply shoot at a house? A. Yes. Q. And after she said those words, that's when you got out of the car – A. Yep. Q. – and decided to take some shots at the group? A. Yes." (T.3026.5-3027,14.6.2016) 1. The Crown tendered evidence of telephone records involving Witness L leading up to the shooting. This became Exhibit 6D. There was said to be a conversation from a phone associated with Farhad Qaumi. There was, however, no message which referred to Farhad Qaumi and the voice of Farhad Qaumi was not identified on any of the intercepted telephone calls. 2. The other relevant phone records were a summary of telephone material relating to Witness M. These records became Exhibit 5H. However, it was submitted on behalf of Farhad Qaumi that although the transcript of those telephone calls attributed the male voice to Farhad Qaumi, the evidence of Witness M was that at all times the male speaker was Mumtaz Qaumi. 3. It was submitted, on behalf of Farhad and Mumtaz Qaumi, that it was not open to the jury to be satisfied beyond reasonable doubt that either Witness M or Witness L was telling the truth. They submitted that there were significant differences between the two versions, in particular as to where the initial meeting took place and as to what Witness M and Witness L were initially asked to do. It was submitted that Villawood was a considerable distance from Orchard Hills which strongly suggested that the evidence of one of them as to where the initial meeting took place was wrong. 4. The question of the acceptance or rejection of the evidence of either or both Witness M and Witness L was very much a jury question. Except in one respect there was a considerable congruence between their evidence as to what happened on that night and in particular, the reasons for why Witness L was reluctant to engage in a drive-by shooting and/or shoot at Mohammed Hamzy's mother. The obvious exception was the difference in their evidence as to what, if anything, Witness M told Witness L about the young men standing in front of the townhouse. 5. It follows that on the facts of this case, it was well open to the jury to be satisfied beyond reasonable doubt that the evidence of Witness M and Witness L was substantially correct. 6. That does not end the matter. At trial, an application was made by Farhad and Mumtaz Qaumi that a verdict of not guilty by direction be entered in respect of this count (R v Qaumi and Others (No 58) [2016] NSWSC 1158). 7. They submitted that the critical witness as to the nature of the joint criminal enterprise alleged by the Crown was Witness L since Witness M could not give evidence about his state of mind. They submitted that according to Witness L, he rejected the original direction to shoot Mohammed Hamzy's mother, but did agree to do a drive-by shooting at the home of Mohammed Hamzy's mother at Greenacre. They noted that Witness L's evidence was that he subsequently determined that he was not prepared to take part in the joint criminal enterprise, i.e. engage in a drive-by shooting. 8. It was submitted on behalf of Farhad and Mumtaz Qaumi that Witness L's evidence was that he was then persuaded to take part in a new criminal enterprise proposed by Witness M, i.e. not to shoot Mohammed Hamzy's mother, which had initially been proposed by Farhad, nor to do a "drive-by" as ultimately proposed, but to engage in a quite different activity. This was the deliberate shooting at people said to be cousins of Mohammed Hamzy at the direction or suggestion of Witness M. 9. It was common ground and uncontroversial that none of the persons whom Witness L shot at had any family relationship or social relationship with the Hamzys. Farhad and Mumtaz Qaumi submitted that the shooting took place outside townhouse 29 of the Greenacre Road complex whereas townhouse 18 in which Ms Leila Hamzy lived was on the western side of the street and some distance away from townhouse 29 being near the bottom of a U-shaped driveway. Farhad and Mumtaz Qaumi submitted that it was not open to the jury to be satisfied beyond reasonable doubt that they were a party to a joint criminal enterprise to shoot at the persons whom (according to Witness L) Witness M alleged were cousins or criminal associates of Mohammed Hamzy. On the Crown case, these persons were the intended victims of the joint criminal enterprise at the time of the shooting. They submitted that there was no evidence that the house which was incidentally damaged in Witness L's shooting of people close to the entrance of Greenacre Road was the house of a relative of Mohammed Hamzy. In other words, the original criminal venture agreed to by Farhad and Mumtaz Qaumi with Witnesses L and M was not completed in that Witnesses L and M decided to commit a different crime, namely shooting at people identified by Witness M as being associated with Mohammed Hamzy. 10. Farhad and Mumtaz Qaumi submitted that there was no evidence capable of establishing the crime charged in Count 18. They placed reliance upon the length of time (estimated by Witness L to be about half an hour) between the decision not to complete the "drive-by" shooting and the different location of the townhouse that was actually struck and the townhouse that was supposed to be the target of the shooting. 11. The application for a verdict by direction, which relied upon the above analysis, was rejected by the trial judge. His Honour set out his reasoning in R v Qaumi and Ors (No 58) [2016] NSWSC 1158 at [23] as follows: "23 Against those submissions are a number of factors: (1) The shooting took place in the same townhouse complex as that which was subject to the agreed criminal venture. (2) A dwelling house was in fact struck, albeit that Witness L said he was firing at people, rather than "at a dwelling house or other building". (3) Witness L would not have been in the vicinity with a gun had it not been for the directions he received from Farhad Qaumi. According to Witness M's account, his last words before committing the shooting were "we can't wait any longer, we're taking too long. Farhad's gonna get angry." (4) In three of the four earlier shootings, people other than the true targets were shot and received injuries. This was true of the Hamzy shooting, the Zakaria shooting and the Chokolatta Café shooting. (5) The particular townhouse is not nominated in count 18. At best, it is a particular of the charge." 1. His Honour relied upon the statements of principle in McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 at 113-114: "The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission. Not only that, but each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose." 1. Later at 117, the Court said: "In Johns this Court was concerned with the common purpose of a joint criminal enterprise. In particular, it was concerned with whether the scope of the common purpose extended to possible as well as probable incidents of the venture. The scope of the common purpose is no different from the scope of the understanding or arrangement which constitutes the joint enterprise; they are merely different ways of referring to the same thing. Whatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement. That is why the majority in Johns in the passage which we have cited above spoke in terms of an act which was in the contemplation of both the secondary offender and the principal offender. There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no other relevant distinction. As Sir Robin Cooke observed, the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it." 1. His Honour went on to conclude: "26 The issue of whether there is a case to answer on count 18 is not an easy one to resolve. However, the question of whether the criminal venture agreed upon, or instigated by, Farhad and Mumtaz Qaumi had come to an end by the time the shooting actually took place is a question of fact. Likewise, it is a question of fact whether the shooting that Witness L actually carried out fell within the scope of the original enterprise, or was incidental to it, and whether the Qaumi brothers contemplated the possibility that Witness L might shoot at another townhouse within the same complex while targeting people in the vicinity of Mrs Hamzy's home. … 28 Further, the Court of Criminal Appeal long ago rejected the proposition that a trial Judge could take a case away from a jury on the ground that a view was formed that a conviction based on the evidence would be unsafe or unsatisfactory – that is a question for a Court of Criminal Appeal if the jury convicts: R v R (1989) 18 NSWLR 74. Where a case is based on circumstantial evidence, it is for the jury (not the trial judge) to determine whether there is an inference inconsistent with the guilt of the accused: R v JMR (1991) 57 A Crim R 39. 29 On one view, the criminal enterprise in relation to Farhad Qaumi and Mumtaz Qaumi came to an end outside the premises at Greenacre when Witness L decided that he would not carry out a particular shooting. However, on another view, the shooting that was in fact carried out was carried out as a result of the directions given by Farhad Qaumi. In my view, it is for the jury to determine whether the criminal enterprise came to an end and whether a new enterprise undertaken by Witnesses L and M commenced. It would be open to the jury to be satisfied that the shooting carried out was within the scope of the joint criminal enterprise or at least an undertaking that was incidental to the original scope of the enterprise. As the Crown put it, in view of the history of innocent bystanders being shot in the course of the shootings that had preceded the Elkadi shooting, it is open to the jury to find that it was within the contemplation of Farhad Qaumi and Mumtaz Qaumi that somebody or some house other than the agreed upon target would be shot at by Witness L once he got to the scene." 1. The decision of the jury involved a factual finding that the criminal venture agreed upon, or instigated by Farhad and Mumtaz Qaumi, had not come to an end by the time the shooting took place. In reaching that conclusion, the jury was in no better position than this Court. On my analysis of the facts, it was simply not open to the jury to find beyond reasonable doubt that the joint criminal venture was continuing at the time when the shooting took place. 2. As indicated by the summary of the facts set out above, the joint criminal venture was for Witness L to drive past the townhouse occupied by LC's mother and fire shots into the townhouse. That is not what happened. The evidence as to what happened is all one way and it is to the effect that either Witness L of his own volition decided to fire shots at a group of persons outside townhouse 29 or at the instigation of Witness M he fired shots at that group of persons believing them to be cousins of LC. It should be noted that there was a considerable distance between townhouse 29 and town house 18 where LC's mother lived. There was no evidence as to the actual distance but implicit in the evidence was that the mother's townhouse was some distance downhill near the bottom of a U-shaped driveway. 3. On that review of the facts, the only common element between what occurred and what was planned to occur by Farhad and Mumtaz Qaumi was the firing of shots. This was clearly not the criminal venture planned by them which they ordered Witness L and Witness M to carry out. 4. The matters relied upon by the trial judge in rejecting the verdict by direction application by Farhad and Mumtaz Qaumi, even taken together, do not alter that conclusion. The fact that townhouse 29 was struck by bullets and was a townhouse in the same complex as that of LC's mother, is not a sufficient connection to the planned criminal conduct. Similarly, the fact that Witness L happened to be in the vicinity of townhouse 18 and was armed is also too remote to bring what happened under the umbrella of the planned criminal enterprise. Finally, the fact that the three earlier shootings gave rise to injuries to persons other than the true targets is not a proper connecting factor in that the injuries to those persons were unplanned, albeit incidental to the criminal conduct which was planned. 5. The essential elements of a joint criminal enterprise require more than one person acting in concert in pursuit of a common criminal purpose. Here that purpose was firing shots at townhouse 18 because it was the home of LC's mother. The indiscriminate shooting at unknown persons (albeit on Witness L's testimony, cousins of LC) was not part of the original arrangement but constituted a new enterprise embarked upon by Witness L of his motion or by Witnesses L and M. It formed no part of the criminal enterprise envisaged by Farhad and Mumtaz Qaumi. That criminal enterprise came to an end when Witness L decided he would not carry out the particular shooting which they had directed. 6. For similar reasons, it was not open to the jury to find beyond reasonable doubt that the elements of extended joint criminal enterprise applied. 7. The state of mind of Farhad and Mumtaz Qaumi as instigators of the incident should be taken at the point where Witness L and Witness M left the park in Granville to commit the drive-by shooting. At that point in time, they had agreed to a drive-by shooting of LC's mother's townhouse. For the principles of extended joint criminal enterprise to apply, the jury would have had to have found that Farhad and Mumtaz Qaumi foresaw the reasonable possibility of a shooting at some other part of the residential complex in the same way as they foresaw the reasonable possibility that one of the shooters tasked with the Zakaria shooting might shoot another occupant of the house within intent to do grievous bodily harm. The essential element which is missing from this incident is that the shooting took place during the carrying out of the original criminal enterprise. The shooting which took place on this occasion was part of a new criminal enterprise, either conceived by Witness L and Witness M, or Witness L alone. 8. It follows that a verdict of acquittal should be entered in favour of Farhad and Mumtaz Qaumi in respect of Count 18. The .45 calibre pistol – Count 19 1. The .45 calibre pistol is first mentioned in relation to the Hamzy shooting. The Crown relied upon the evidence of Witness J. He said that there was a discussion of how Mohammed Hamzy was to be shot in which Farhad Qaumi said "Yeah pretty much run in the garage and shoot whoever is in there" (T.3962.20). That comment was directed to Witness L. Subsequently, Farhad Qaumi attended at the residence of Witness J. When Witness J opened the door for him, Farhad Qaumi walked in with the .45 calibre pistol in his hands. He asked Witness J for gloves, put them on and proceeded to load the .45 pistol. Subsequently, he and Farhad Qaumi left the house and he saw Farhad Qaumi give the .45 pistol to Witness L. As he did so, Farhad Qaumi took the safety catch off and said "Don't shoot yourself, it's ready to shoot" (T.3964.32). 2. Witness L said that on the night of the Hamzy shooting, he could not remember if he was handed the pistol by someone or if it was already in the car when he got in. Witness M said that the first time she saw the pistol on the night of the Hamzy shooting was in the car. 3. Before the Elkadi shooting on 28-29 November 2013, the evidence of Witness L and Witness M was that Farhad Qaumi provided the .45 pistol to Witness L for him to use in the shooting. 4. Possession of a firearm, pursuant to the definition within s 4 of the Firearms Act 1996 (NSW) includes: "… any case in which a person knowingly: (a) has custody of the firearm; or (b) has the firearm in the custody of another person; or (c) has the firearm in on any premises, place, vehicle, vessel or aircraft whether or not belonging to or occupied by the person." 1. Accordingly, physical possession is not a necessary requirement for the proof of possession of a firearm. Even if Farhad Qaumi did not have physical custody of the .45 pistol, he could still be in possession. It follows that on the above evidence, it was well open to the jury to find beyond reasonable doubt that between 28 October and 30 November 2013 Farhad Qaumi possessed the .45 pistol. Possession of the bag containing drugs, a shotgun and a .38 revolver – Counts 20-22 1. From 5 November 2013 until 8 January 2014, various intercepted telecommunications and meetings were recorded by police. These were tendered as Exhibits 8S and 8T (through Witness A). Exhibit 8V (through Witness A), Exhibit 7P (through Witness J) and Exhibit 9A (through Detective Senior Constable Sharkey). An undercover police officer, "George", gave evidence of telecommunications involving him as recorded in his statement, dated 7 January 2014. 2. Witness L gave evidence that Jamil Qaumi would pick him up from his house in Blacktown every day. At some time after the Hamzy shooting, Jamil Qaumi came to Witness L's house carrying a bag which Jamil Qaumi told him contained guns and drugs. Jamil Qaumi said he was worried that police would search his car so he needed to store the bag somewhere. Witness L showed Jamil Qaumi a gap under his house where Jamil Qaumi put the bag. 3. Jamil Qaumi called Witness A, and Witness L and Jamil Qaumi met up with Witness A next to a train station. Jamil Qaumi told Witness L and Witness A that his house was going to be raided and he wanted Witness A to store the bag containing the guns and the drugs. Witness L gave evidence that the three men then went to K-Mart to buy a new sports bag, as Jamil Qaumi wanted to replace the other bag. Witness L recalled that they returned to his house where he went inside and Jamil Qaumi took the bag from under the house. Witness L saw Jamil Qaumi and Witness A swapping the bags over and saw that a "big thing already wrapped up in a blanket" was transferred to the new bag. Witness C then arrived at Witness L's house. Witness L recalled that he put the old bag into a rubbish bin and drove with Jamil Qaumi to Witness A's house. Witness L recalled that Witness A drove in front of Witness C's car with the bag containing the guns and drugs in the boot. 4. When they arrived at Witness A's house, Witness A took the bag from the boot of the car and started walking with it. Witness L and Jamil Qaumi then left. Witness L did not see where Witness A went with the bag. 5. In examination in chief, Witness A gave evidence that the day after the Zakaria shooting, 5 November 2013, he had a meeting with Jamil Qaumi and Witness L. He received a call from Jamil Qaumi telling him to "come down" and was picked up at Granville train station by Witness L and Jamil Qaumi. On the phone, Jamil Qaumi told Witness A he was to purchase a bag or wait until they met him and the three of them would purchase a bag together. Witness A recalled that he, Jamil Qaumi and Witness L then drove to a quiet location where they "told him [Witness A] to keep his phone in the car". Witness A gave evidence that Jamil Qaumi told him "We are at war with the Bankstown chapter of BFL". Witness A recalled Jamil Qaumi then brought up the meeting at the Casino on 2 November 2013 and how at that meeting members of the Bankstown BFL said words similar to "They're after us, not to trust anyone, not to hang around anyone. You don't know who's pissed off, don't answer any calls". Witness A recalled that Jamil Qaumi also said on this occasion that "Masood Zakaria's father was going to co-operate with the police and that Witness L had some guns at his house and that he wanted him [Witness A] to take them". Jamil Qaumi told Witness A that they believed Masood Zakaria's father was able to identify Witness D as being at the front door and involved in the shooting and planned to tell this to police. 6. At this same meeting, Witness A recalled that Witness L said to him "You gotta help me out … Look Farhad wants you to take the guns, you've got to stash them and store them". Witness A stated that he initially refused but felt he did not have a choice recalling that they said "Look, our houses are going to be raided, you're a bit of a clean skin, you take them". 7. Witness A said he, Witness L and Jamil Qaumi then drove to meet Witness C. They all then went to a K-Mart in Blacktown where they purchased a bag and a lock paid for by Witness A. Witness A gave evidence that they drove to Witness L's house, where the guns and ammunition were packed in the bag. Witness A "only saw vaguely what was being put in the bag, but [he] was told there were two guns, bullets and some pills and an 8-ball of coke". The bag was packed at the back of Witness L's house. 8. Witness A got into a car with Witness C while Witness L and Jamil Qaumi were in a separate car behind them. Witness A recalled that the bag was in Witness C's car. At some point, Witness A was told by Jamil Qaumi "If we ever need it, the next night or two, make sure you answer your phone. You locate it, keep it in your bedroom, keep your phone on, we're going to need it very soon". Witness A also recalled that Jamil Qaumi said "That the gun was dirty and used in the Zakaria shooting and the Odisho shooting". Witness C drove Witness A to an area close to where he was living at the time. Witness A remembered saying to the group "Look, leave it with me" and waited until they left. He stated he then "dumped" the bag in bushland in the Pendle Hill area. He did not touch the bag before dumping it and the bag had a lock on it. At some time before 12 December 2013, Witness A returned to check that the bag was still there but did not touch it "Just looked from a distance back to see if it was still there". 9. Witness A said that on 12 December 2013, he met with Detective Inspective Patton and informed him about this bag containing guns and drugs. 10. Witness A recalled that at about this time a person in the BFL Blacktown group named Masieh Amiri was trying to get in contact with him. Witness A was told by his work colleagues that on several occasions "people" came looking for him. He was aware that Masieh Amiri had attended his workplace on a couple of occasions when he was not there. He received a few voice messages and Masieh Amiri also called his work and left a message saying his name was "John" and he wanted the bag. 11. On 28 December 2013, Witness A visited Jamil Qaumi who was then in custody. The conversation was recorded by police and tendered and marked Exhibit 8V. After that meeting, he received a number of calls and messages from Masieh Amiri. A bundle of transcripts of telephone intercepts relating to Witness A were marked and tendered as Exhibit 8S. 12. Under cross-examination by counsel for Jamil Qaumi, Witness A agreed that he had said in his statement to police on 13 December 2013 that he, Jamil Qaumi and Witness C went to the clubhouse in Blacktown to retrieve the bag. He said that he had subsequently retracted that and confirmed that it was untrue. He later told police it was Witness L's house they went to. 13. Witness J gave evidence concerning a telephone conversation between him and Farhad Qaumi on 5 December 2013. That evidence was: "Q. Did you recognise the voices on the call? A. Yeah. Q. Was your voice on that call? A. Yeah. Q. Who was the other voice? A. Farhad. Q. If you look at the transcript and if I take you to page 7 of the transcript, you had some conversation about attempts to try and contact a person. If you look at page 7, just about halfway down you say: "When I spoke to him ages ago, he goes to me he's at Court for, um, remember he got charged for – remember he got charged with something." Who was the person you were talking about at that time when discussing attempts to try and contact – A. [Witness A]. Q. – as a person who had been in Court? A. Yeah, [Witness A]. Q. Do you recall what you had been attempting to contact him about? … Q. In it, you said you had made attempts to contact him, is that right? A. Yep. Q. What was that about? A. Trying to get in contact with [Witness A] because he had a bag of pills and guns. Q. Did anyone ask you to do that? A. Yeah, Farhad." (T.3995.22-3996) 1. The content of that telephone conversation between Farhad Qaumi and Witness J was a discussion about Witness J trying to get hold of Witness A. Witness J suggested that Witness A had either run away or that he was "a dog". Witness J commented that he had tried to call Witness A "600 times" and that Witness A kept switching his phone on and off. Witness J and Farhad Qaumi discussed the fact that "the boys" went to visit Witness A at his place of work but Witness J had not heard from Witness A since. 2. The Crown tendered a large bundle of telephone records relating to Counts 20 – 22, which became Exhibit 9A. Farhad Qaumi was only heard in three of these conversations. In a call from Mumtaz Qaumi to Harris Sedat on 16 December 2013 (Exhibit 9A p41) Farhad Qaumi can be heard advising Mumtaz Qaumi "Just tell him where you are". In the second call on 3 January 2014 (p 62) Masieh Amiri told Farhad Qaumi that [Witness A] was coming around to see him. Arrangements were made for Farhad Qaumi to send him an address on a different phone number. In the third call on 4 January 2014 (p 64), Masieh Amiri and Farhad Qaumi discussed someone not turning up at a meeting with Masieh. It was accepted that clearly Farhad Qaumi wanted to see Witness A. What was in issue was the reason for him wanting to see Witness A. 3. On 14 December 2013, Mumtaz Qaumi called Masieh Amiri to give him his telephone number. Masieh told Mumtaz Qaumi that he thought Witness A was a "snitch" as he could not get in contact with him. Mumtaz Qaumi asked Masieh to call Witness A's work and "try to get hold of this f---ing little dog [call his work, if he is there we will go to his work now]". Mumtaz Qaumi told Masieh to keep trying to call Witness A. (In the transcripts words in brackets indicated that a language other than English was being used.) 4. There was a telephone intercept between Mumtaz Qaumi and Masieh Amiri of 25 December 2013. In the call, Masieh tells Mumtaz that he has "the thing, but can't find the balloons because everywhere is shut". Mumtaz Qaumi suggested to Masieh that he should get the balloons early in the morning before he meets with the guy whom he is expecting tomorrow. Detective Sharkey said that in his experience, balloons were used as a way to hide drugs. 5. There was a further intercept on 27 December 2013 when various text messages were sent from Masieh Amiri to Mumtaz Qaumi. Masieh said that he "Respects Mumtaz and F and if they need anything, he is there for them". 6. There was a further intercept of a conversation between Masieh Amiri and Mumtaz Qaumi on 28 December 2013. Masieh Amiri called Mumtaz Qaumi to tell him that Witness A saw Jamil Qaumi in Long Bay and to let Mumtaz Qaumi know that Witness A would give them an address to pick the bag up, but Witness A no longer wants to do "all this" anymore. 7. There was a further intercept on 2 January 2014 when Witness A called Masieh Amiri to arrange a meeting to hand over the bag. Witness A told Masieh "the guy" who was hiding the bag for him [UCO George] will bring it tomorrow to the Bankstown area. Masieh said he could not go to Bankstown. Witness A stated "It's not with me. If it was with me I would give it to you you know". Witness A asked if "F is all right and that on the news it said Farhad was shot on a boat cruise". Witness A said he spoke to Jamil Qaumi and Mumtaz Qaumi and that they told him to speak to Masieh and "just give it to you, that's it and you're gonna …". Masieh said he would talk to Mumtaz Qaumi. Witness A said that they should not talk on the phone as he was being watched. Masieh told Witness A that the police came to his house every day. Witness A asked if it was Masieh who was coming to his work "all the time" and Masieh confirmed that it was. Witness A stated "Jamil told me he goes, he goes I've spoken to Mumtaz already. He goes to me "I'll give you the party things you give the other things to Mumtaz, one big and one little. I will call you tomorrow afternoon". Witness A told Masieh that "the guy [George] doesn't want to touch it [the bag]." Masieh told Witness A he did not want to risk coming to Bankstown because he was being watched. Witness A explained he would give everything to Masieh and he would give the rest to Mumtaz. Witness A told Masieh that he went overseas because he was arrested. 8. There was a further intercept on 2 January 2014 in which Masieh Amiri called Mumtaz Qaumi, letting him know that if he or F needed him, he was there and he was seeing Witness A the following day. 9. In an intercept of 3 January 2014, Masieh Amiri called Witness A. Witness A told him that he wanted to talk to him. He said "No, it's not with me, it's with my mate, it's with my mate and my mate – I wanted, I wanted to speak to you about something". They arranged to meet at Kellyville Plaza. Witness A told Masieh he did not have a car and said "You want me to chuck the stuff in a taxi? The stuff is not with me. It's with my mate who stored it away special. He doesn't want to touch it. He wants one of youse to come and pick it up". Witness A said Jamil Qaumi told him "Give the party stuff to you and the other stuff to, to [those he goes boom boom to Mumtaz]". They arranged to meet at Kellyville in a hour's time. It was following that call that Masieh Amiri called Farhad Qaumi on 3 January 2014 in the telephone intercept already referred to. 10. In a later intercept on 3 January 2014, Masieh Amiri called Witness A. Witness A told him that he was on his way to meet him. Masieh responded "Bro, go get the thing and bring it this way, bro … nah nah bro, f… me dead [Get in a cab, come over here and hand it over then grab it please] … Go over there with the bloke and f…ing get that put it in a cab and bring it over here bro. I'm doing you a favour bro otherwise you will have to speak you know what I mean". Witness A responded that he would give them George's number because he did not have "the stuff" and that it was with George. 11. Approximately an hour later, there was a further intercept when Masieh called Witness A. Masieh asked where Witness A was. Witness A told him that he could not meet up until later that evening because "the guy" whom he gave the bag to is delaying him. He was recorded saying "It's not with me, I had given it to someone and had given money to store it" and "Yeah, just give me a couple of hours. I got to speak to this George bloke. He is a courier, he is a courier, he is a mate of mine. I gave it to him a couple of weeks before I left overseas". Witness A told Masieh that as soon as he gets it, he would give it to him. 12. It is following that call that on 4 January 2014 at 1.46am, Masieh Amiri called Farhad Qaumi to let him know that he did not see "the guy" and would leave it until the next day. Farhad Qaumi said that he would ring the next day. The overwhelming inference is that this is a reference to Witness A failing to meet Masieh Amiri as arranged. 13. On 4 January 2014 at 13.36, Witness A called Masieh Amiri. Masieh told Witness A that he had been in touch with Witness A's contact "George" who was asking for $10,000 for the bag. Masieh told Witness A that he wanted to set George up by telling him they had the money and then grabbing him. Witness A said that he would tell "Taz" what had happened. There was then a discussion about what was in the bag – "two handguns that's all". Masieh asked "Where are the little ones?" to which Witness A responded "It's all in one bag". Masieh expressed his concern about what to tell Mumtaz. Masieh said "I asked F's cousin, [Witness J], and Farhad to come and get the bag". 14. In a further intercept of a call on 6 January 2014 at 16.52, Witness A called Masieh Amiri and told him that "This bloke [George] is going to sell the bag". Masieh said he spoke to George the night before and he was willing to meet up. Masieh asked if he should call Taz. Witness A said to be careful about what they said on the phone. There was then a further discussion about the contents of the bag. Witness A asked Masieh for his help with retrieving the bag because he could not do it on his own. Witness A said "I didn't want to get F and Taz and that involved 'cos they gonna, they gonna want to kill me bro". 15. Ten minutes later, Masieh called Mumtaz Qaumi and they discussed the fact that Witness A gave the "shirts" to a guy named George, who was demanding $10,000 for it. Mumtaz told Masieh to text him George's phone number and address. Mumtaz told Masieh to tell Witness A "Say we will give the money, we will go to his house". 16. In a further intercept on 6 January 2014 at 17.13, Masieh Amiri called Witness A and told him that he [Mesiah] was told to get George's address so that "We can … f---ing go". Witness A said he would try to get it. 17. Later on 6 January 2014 at 17.44, Masieh Amiri called Mumtaz Qaumi to tell him that Witness A did not have George's address. Mumtaz told Masieh to call Witness A and tell him that Mumtaz wanted to see him. Mumtaz told Masieh to get some friends together and to tell George he had the money for the bag. Once they meet, Masieh was to hit George and take the bag. Mumtaz told Masieh "Whatever way it happens, just tell him you got the money and ask him to bring the stuff, once he gets there hit him hard, bash him and get the stuff off him. If he doesn't have the things detain the guy and don't let him go until he shows you where the things are". 18. On 8 January 2014 at 11.42, there was another call which was intercepted in which Masieh Amiri called George to try to get the bag back. George told him that he was going to sell the bag to someone else and Masieh threatened that he should not do that. George said he thought Masieh's voice sounded different. George told Masieh he had a buyer set up. George asked who the bag belonged to and Masieh says "Trust me, you do not want to know who it belongs to. Even that person who wants to buy it off you, [if] they knew who it belongs to, they wouldn't want to f---ing touch it". Seven minutes later, Masieh called Mumtaz Qaumi to tell him what George said. Mumtaz Qaumi told Masieh to call George and say "One day we will get you and f… you". Mumtaz Qaumi then told Masieh to call Witness A and tell him that this is his fault and "if I see you, I will kill you" and "Call [Witness A] and tell him you gave it to this guy so it's all on you now. We are after you and if we find you, we will kill you". 19. The Mossberg shotgun which was in the bag became Exhibit NNN. It had been used in the Zakaria shooting. The .38 revolver which was used in the Hamzy shooting became Exhibit MMM. There was also a quantity of ammunition. The bag contained a quantity of tablets which were found to contain N-(2)-methoxylbenzl)-2, 5-Dimethoxy-4-Iodophenethylamine. The Mossberg shotgun had been identified by Witness B as having its butt sawn off in the Blacktown BFL's clubhouse in the presence of Farhad Qaumi and Mumtaz Qaumi (T.4488-4489). Witness A gave similar evidence (T.4611.17). Witness C gave evidence of seeing the shotgun at Witness L's house. He had arrived after the others who participated in the Zakaria shooting. On the evidence of the others (Witness L - T.2834.46-2839.27; Witness I - T.3283.24-25; Witness D – T.4204.47-4205.18) it was open to the jury to conclude that Jamil Qaumi had brought the firearms to Witness L's house. 20. Farhad Qaumi's submission that the Mossberg shotgun was in the possession of Witness I should not be accepted. Further, the custody of any of these firearms at any particular time by any other gang member did not detract from the Crown's submission that the possession of the firearms was with the Blacktown BFL and in particular, its leadership. 21. Witness C gave evidence of seeing not only the shotgun but also a black revolver in the clubhouse (T.3772.46). Later, he observed a shotgun and pistol at the house of Witness I before the Odisho shooting (T.377.46). The applicants submit, based on the evidence of Witness C, that this .38 revolver was in the possession of Witness I. This .38 revolver used in the Odisho shooting and later in the shooting at the Chokolatta Café was, however, seized by police shortly thereafter and did not go into the bag of guns and drugs. 22. In that regard, Witness A gave evidence that Jamil Qaumi told him that the .38 revolver had been used in the Odisho shooting and the Zakaria shooting. In fact this .38 pistol had not been used in the shootings. Accordingly, it appears that Jamil Qaumi was confused about which shootings this pistol had been used in. 23. As with the .45 calibre pistol, the provisions of the Firearms Act apply so that possession of those firearms, pursuant to the definition within s 4, includes: "… any case in which a person knowingly: (a) has custody of the firearm; or (b) has the firearm in the custody of another person; or (c) has the firearm in on any premises, place, vehicle, vessel or aircraft whether or not belonging to or occupied by the person." 1. As with the .45 calibre pistol, even if the applicants did not have physical custody of those weapons, they could still be in possession because they controlled where they were kept and by whom. 2. The pharmacological effect of the tablets contained in the bag was similar to that of LSD (T.4908.39-42). It was submitted that the provenance of those drugs was unclear. There was, however, evidence of where those drugs came from and that the Blacktown BFL possessed and sold such substances. The detail of those sales is set out in Farhad Qaumi's written submissions at [174]-[176]. "174 There was evidence of the involvement of the applicant Farhad Qaumi in drugs from Mesbah Mirzaei. He gave evidence that Farhad Qaumi obtained drugs, including pills with a lightning bolt imprint, from the Lone Wolves (T.199-2). However, [Witness G] was arrested on 11 September 2013 and entered custody on that date. Nazir Akbari was also arrested and entered custody on that date. The date is significant because even if[Witness G] was being truthful about Farhad Qaumi obtained lightning bolt pills, that could not have been in the period 7 October 2013 to 12 December 2013. 175 [Witness L] gave evidence that [Witness I] gave him drugs, and also Nazir Akbari, Harris Sadat and [Witness A] to sell (T.2899-900 176 [Witness I] said that Farhad Qaumi gave him the drugs to sell. However, later in cross-examination, he agreed that Farhad Qaumi was not physically involved in the transfer of drugs. …" 1. Witness A and Witness G both gave evidence of observing tablets with a similar appearance to those which were in the bag, i.e. with a lightning bolt logo on the pills. Nazir Akbari was doing the selling from different locations at different times. Witness A gave this evidence: "Q. If Farhad wasn't there, who would give directions? A. One of his brothers. Q. In relation to drugs that the group was selling, did you at any time see any pills? A. Yes. Q. Can you describe what you saw? A. Lightning bolts. Q. Is that the logo on the pill? A. Yeah. Q. Do you recall any conversations about those pills? A. I saw them being sold on several occasions. Q. Who did you see selling them? A. Nazir Akbari. Q. Whereabouts? A. Different places. Q. What about any conversations about the pills and where the money from the sales went; did you hear any conversations? A. Yes. Q. Who did you hear speak of that? A. Farhad Qaumi. Q. Whereabouts were you when you heard that? A. The clubhouse. Q. What was said? A. Nazir was coming back to give him a cut of his money. Q. What did you hear being said? A. That any time he wanted more pills, to come see him. Q. Who said that? A. Farhad. Q. Who was he talking to? A. He was talking to [Witness I] and Nazir and me." (T.4604.28-4605, 13.7.2016) 1. The overwhelming inference to be drawn from the conversations between Masieh and Witness A on the one hand and Masieh and Mumtaz Qaumi is that they were talking about the bag of guns and drugs. Even the limited conversations between Farhad Qaumi and Masieh and the reporting by Masieh that a particular meeting with an unnamed person had not taken place, make it clear that the subject was the bag and its contents and the person who did not attend the meeting was Witness A. It was accordingly well open to the jury to make a finding to that effect. 2. Farhad Qaumi submitted that he did not speak to "George" because the bag and its contents were not his. There is another reason for why Farhad was reluctant to speak to George. To do so would have directly implicated him with respect to the bag and its contents. He was clearly cautious in the manner in which he spoke about criminal activity and his method of speaking in public parks in the absence of mobile telephones demonstrates that caution. The telephone intercepts of conversations between Mumtaz and Masieh Amiri clearly implicate Mumtaz and allow a finding that he "possessed' the bag and its contents. 3. When read in context, the telephone intercepts explain clearly why Farhad Qaumi wished to speak to Masieh Amiri about Witness A. It is clear from the contents of the telephone intercepts that Mumtaz had a clear and obvious interest in the bag and its contents being recovered. Similarly, before he went into custody, it is clear that Jamil Qaumi took a proprietorial interest in the bag and its contents. The evidence of Witness A makes this clear. Finally, even though the telephone intercepts involving Farhad Qaumi are very limited, there are references in other conversations to him which made it clear that he was a person interested in the bag and its contents. 4. The Crown submitted that these telephone conversations in conjunction with Exhibit 11U (the recording of the conversation between Farhad Qaumi and Mumtaz Qaumi following their arrest at the Wyong Police Station on 9 January 2014) take on considerable significance. It is clear that Farhad and Mumtaz Qaumi realise the consequences of having spoken on the telephone with respect to the bag with guns and drugs. 5. The Crown submitted that the significance of Farhad Qaumi and Mumtaz Qaumi saying that there would be no evidence of DNA or fingerprints, can be understood as an admission that they believed that they had sufficiently distanced themselves from the bag and its contents to avoid being linked to it by forensic evidence. Shortly thereafter, however, Mumtaz Qaumi made the observation that "Masieh kept calling us bro" indicating his knowledge of how they might be implicated through their actions in relation to the bag and its contents. The Crown noted the response of Farhad Qaumi, which could also operate as an admission, i.e. "Nah, they know it's mine cuz". Later in the transcript, Farhad Qaumi said "Your phone's f…ed me" to which Mumtaz Qaumi replied "Masieh f….ed us bro", both of which were factually correct and implicated each of them. 6. The Crown submitted that in the rest of the conversation, Farhad and Mumtaz Qaumi both appeared to accept their guilt in relation to the charges with respect to the bag and its contents. What they appeared to be doing was trying to prepare a version of events consistent with innocence, including that they had no knowledge of what was in the bag and that the worst that they had done was in connection to steroids rather than prohibited drugs. 7. Read in its entirety, the effect of the telephone intercepts and the recorded conversation after the arrest of Farhad and Mumtaz Qaumi do link them directly to the bag and its contents. It follows that it was well open to the jury to find beyond reasonable doubt that Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi did possess the bag and its contents at the relevant time. 8. The Crown submitted that the controversies between the witnesses as to how long the firearms were kept at Witness L's house, the different versions which Witness A gave as to whether the bag of guns and drugs came from the clubhouse in Blacktown or from Witness L's house are overcome by the quality of the evidence of these conversations. I agree. 9. The Crown in its closing address, contended that the firearms and drugs within the bag were the tools of trade of the Blacktown BFL possessed by the membership and particularly the leadership of Farhad, Mumtaz and Jamil Qaumi. The Crown submitted that the dates particularised in Counts 20-22 do not span the time from 5 November 2013 and 12 December 2013 when Witness A was tasked with obtaining the bag and secreting the guns and drugs in it. The dates particularised with respect to Count 20 were between 7 October and 12 December 2013. The dates particularised with respect to Counts 21 and 22 were between 6 July and 12 December 2013. Essentially, the Crown case was that the guns and drugs had been possessed by the leadership and members of the Blacktown BFL before 5 November 2013 and that at a point in time in their conflict with the Bankstown BFL on 5 November 2013 when Farhad was leaving the country, these items needed to be hidden away with a gang member on whom there would be less police attention. Thereafter, Witness A secreted the bag in the bush near to where he lived. It remained there and remained in his and the leadership's possession until he revealed its location to police on 12 December 2013. 10. Based on the evidence of Witness A and on the telephone calls between him, Masieh Amiri, George, Mumtaz Qaumi and Farhad Qaumi and the recorded conversation between Farhad and Mumtaz Qaumi while they were in police custody, it was open to the jury to convict Farhad and Mumtaz Qaumi of possessing the bag of guns and thus of Counts 20-22. 11. Mumtaz Qaumi appealed against his conviction in respect of Count 23. No written or oral submissions were made by his Senior Counsel in respect of that count. All that was said was that he relied upon the submissions made on behalf of Farhad Qaumi. That is of little assistance since Farhad Qaumi was not appealing against his conviction for "directing the activities of a criminal group". In any event, having regard to the contents of this judgment, it is difficult to see how any challenge to the conviction of Mumtaz in respect of Count 23 could be made out. 12. In summary, there was a considerable body of evidence to implicate Farhad, Mumtaz and Jamil Qaumi in the counts for which they were convicted. That evidence included their own conversations as put forward by witnesses. It remained open to the jury to accept the evidence of the informer witnesses, particularly when some of them were less affected by issues of credibility. Overall, there was a pattern to the offending by the Qaumi brothers. Having committed the Hamzy shooting, Farhad Qaumi feared retaliation and took pre-emptive action to avoid that by the Odisho and Zakaria shootings. The Elkardi shooting was itself a retaliation for the Bankstown BFL's retaliatory shooting of Sina Mirzaei. 13. It follows that the orders which I propose in relation to the conviction appeals are: 1. Leave to appeal against conviction be granted. 2. For Mumtaz Qaumi there be a verdict of acquittal entered in respect of Counts 9 and 18. 3. For Farhad Qaumi there be a verdict of acquittal entered in respect of Count 18. 4. Otherwise, for Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi the appeals against conviction be dismissed. 1. In relation to the appeals against sentence I agree with Johnson J and the orders which he proposes. 2. JOHNSON J: I have had the advantage of considering in draft the judgment of Hoeben CJ at CL with respect to the appeals brought by each Applicant against conviction. I agree with his Honour's reasons and proposed orders concerning the conviction appeals. 3. Hoeben CJ at CL noted at [104] his acceptance of a Crown submission concerning the capacity of the evidence of an accomplice witness to support the evidence of another accomplice witness. The Crown submission is supported by ample authority: Kanaan and Ors v R [2006] NSWCCA 109 at [221]; Aouad v R; El Zeyat v R (2011) 207 A Crim R 411; [2011] NSWCCA 61 at [211]; Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R (2011) 209 A Crim R 424; [2011] NSWCCA 62 at [289]-[290]. 4. The cases referred to in the preceding paragraph share an important feature with the trial of the present Applicants. The charges, including murder and other serious crimes of violence, arose from alleged organised criminal gang activities. It is a common feature of such trials that the Crown relies upon evidence of witnesses who were themselves involved in criminal gang activities. In Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R, this Court observed at [177]-[178]: "177 It has become part of the contemporary landscape of trials for very serious crimes that persons may give prosecution evidence whilst holding an indemnity and being the recipients of assistance and witness protection. In Rozenes v Beljajev, Brooking, McDonald and Hansen JJ observed at 544 that 'if it were not for the evidence of accomplices, a great deal of very serious crime would go unpunished, and the frequent use of evidence of accomplices has been found to be necessary in the public interest'. 178 In his closing address to the jury, the Crown Prosecutor echoed such reasoning (T1942): 'The reality is [that] to crack crimes of this type and in this case, the evidence must come from a man on the inside. That is Khaled Taleb, the Crown submits to you'." 1. The jury had the opportunity to see each of the "inside" witnesses whom the Crown called to give evidence at this trial. The trial Judge gave the jury detailed directions concerning the evidence of these witnesses and those directions are not challenged before this Court. I have kept in mind the considerable advantage of the jury in seeing these witnesses give evidence when considering submissions made for the Applicants that verdicts of guilty were unreasonable and not supported by the evidence. 2. Having made my own assessment of the evidence at the trial, and applying the principles cited by Hoeben CJ at CL ( at [13]-[16]), I am well satisfied that it was open to the jury to find each Applicant guilty of the offences charged with the exception of Counts 9 (for Mumtaz Qaumi) and Count 18 (for Farhad Qaumi and Mumtaz Qaumi). Applications for Leave to Appeal Against Sentence 1. With respect to each of the Applicants, Hamill J proceeded by way of imposition of an aggregate sentence for the matters for which each of the Applicants was found guilty by the jury. 2. Mumtaz Qaumi and Jamil Qaumi pleaded guilty to charges of contempt of court arising from the conduct of each of them during the trial by way of refusal to answer questions or the commission of an act of violence towards a co-accused in the face of the Court. With respect to the offences of contempt of court, the sentencing Judge imposed separate sentences of imprisonment which were not included in the aggregate sentence. No challenge was brought in this Court with respect to the sentences for offences of contempt of court. 3. Further, Jamil Qaumi asked the Court to take into account on a Form 1, in the imposition of sentence for Count 1, offences of specially aggravated break and enter (the circumstance of special aggravation being the use of a pistol), using a pistol without a licence and demanding property with menaces. Further reference will be made to these Form 1 matters later in this judgment. The Murder of Joseph Antoun 1. Farhad Qaumi and Mumtaz Qaumi had stood trial before Hamill J, sitting without a jury, upon a charge that each of them did murder Joseph Antoun and, in the case of Farhad Qaumi, a charge of possession of a pistol. His Honour found each of them guilty of those charges: R v Qaumi and Qaumi (No. 12) [2017] NSWSC 134. With the agreement of the parties, when his Honour sentenced each Applicant on 16 June 2017 for the offences of which each was found guilty by the jury at the trial which is the subject of the present appeal, Farhad Qaumi and Mumtaz Qaumi were sentenced as well for the murder of Joseph Antoun, being Count 1 on the second indictment and (in the case of Farhad Qaumi), possession of a pistol (Count 2 on the second indictment). 2. This Court has already dismissed an appeal against conviction arising from the murder of Joseph Antoun: Qaumi, Farhad v R; Qaumi, Mumtaz v R [2019] NSWCCA 60 (Bathurst CJ, Hoeben CJ at CL and Wilson J). 3. As his Honour proceeded to sentence Farhad Qaumi and Mumtaz Qaumi by way of aggregate sentences of imprisonment for the offences arising from both trials, the sentence appeals concerning the murder of Joseph Antoun are appropriately to be considered by this Court in the present judgment. 4. Jamil Qaumi was not charged with any offence relating to the murder of Joseph Antoun. Aggregate Sentence for Farhad Qaumi 1. With respect to Farhad Qaumi, an aggregate sentence of imprisonment for a term of 60 years was imposed, comprising a non-parole period of 43 years commencing on 9 January 2014 and expiring on 8 January 2057 with a balance of term of 17 years commencing on 9 January 2057 and expiring on 8 January 2074. 2. In compliance with s.53A Crimes (Sentencing Procedure) Act 1999, his Honour nominated the indicative sentences contained in the following table: Count Offence Maximum Penalty - Imprisonment for Standard Non-parole Period (SNPP) Indicative Sentence of Imprisonment First Indictment 1. Manslaughter of Mahmoud Hamzy (on or about 29 October 2013) 25 years Nil 14 years (The jury returned a verdict of not guilty of murder but guilty of manslaughter) Section 24 Crimes Act 1900 2. Cause grievous bodily harm to Omar Ajaj with intent to cause grievous bodily harm (on or about 29 October 2013) 25 years 7 years 10 years with a non-parole period of 7½ years Section 33(1)(b) Crimes Act 1900 3. Conspiracy to murder Mohammed Hamzy (between 1 October and 30 October 2013) 25 years 10 years 12 years with a non-parole period of 9 years Section 26 Crimes Act 1900 4. Soliciting the murder of Michael Odisho (on 3 November 2013) 25 years 10 years 12 years with a non-parole period of 9 years Section 26 Crimes Act 1900 5. Shoot at Michael Odisho with intent to murder (on 3 November 2013) 25 years 10 years 12 years with a non-parole period of 9 years Section 29 Crimes Act 1900 7. Soliciting the murder of Masood Zakaria (on 3 November 2013) 25 years 10 years 12 years with a non-parole period of 9 years Section 26 Crimes Act 1900 9. Cause grievous bodily harm to "H" with intent to cause grievous bodily harm to another person (on 4 November 2013) 25 years 7 years 10 years with a non-parole period of 7½ years Section 33 (1)(b) Crimes Act 1900 18. Firing a firearm at a dwelling-house, in the course of organised criminal activity, with reckless disregard for the safety of any person (on or about 29 November 2013) 16 years 6 years (there was no SNPP for this offence at the time of the offence) 6 years with a non-parole period of 4½ years Section 93GH(1B) Crimes Act 1900 19. Possession of a pistol (a 0.45 calibre pistol), not being authorised to do so by a licence or permit (between 28 October 2013 and 30 November 2013) 14 years 4 years (the SNPP at the time of this offence was 3 years) 4 years with a non-parole period of 3 years Section 7(1) Firearms Act 1996 20. Supply not less than a large commercial quantity of a prohibited drug (between 7 October 2013 and 12 December 2013) Imprisonment for life or a fine of 5000 penalty points or both 15 years 6 years with a non-parole period of 4½ years Sections 25(2) and 33(3)(a) Drug Misuse and Trafficking Act 1985 21. Possession of a prohibited firearm (a Mossberg sawn-off pump action shotgun), not being authorised to do so by a license or permit (between 6 July 2013 and 12 December 2013) 14 years 4 years (the SNPP at the time of this offence was 3 years) 4 years with a non-parole period of 3 years Section 7(1) Firearms Act 1996 22. Possession of a pistol (a Smith and Wesson 0.38 special calibre model 10 revolver), not being authorised to do so by a license or permit (between 6 July 2013 and 12 December 2013) 14 years 4 years (the SNPP at the time of this offence was 3 years) 4 years with a non-parole period of 3 years Section 7(1) Firearms Act 1996 23. Directing the activities of a criminal group (between 1 July 2013 and 8 January 2014) 15 years NIL 8 years Section 93T(4A) Crimes Act 1900 Second Indictment 1. Murder of Joseph Antoun (on 16 December 2013) Life imprisonment 20 years 45 years with a non-parole period of 33 years and 9 months Section 18(1)(a) Crimes Act 1900 2. Possession of a pistol (a 0.38 calibre snub nose revolver), not being authorised to do so by a licence or permit (between 1 and 5 January 2014) 14 years 4 years (the SNPP at the time of this offence was 3 years) 6 years with a non-parole period of 4½ years Section 7(1) Firearms Act 1996 1. It will be noted from entries in this table that the sentencing Judge took into account standard non-parole periods with respect to Counts 18, 19, 21 and 22 on the first indictment and Count 2 on the second indictment which did not accord with the applicable law at the time of these offences. Regrettably, the parties at first instance provided this erroneous information to the sentencing Judge. Understandably, in the complex sentencing exercise required in this case, his Honour acted upon the agreed information in this respect. However, the information was erroneous concerning these five counts and this aspect gives rise to a ground of appeal with respect to sentence. Aggregate Sentence for Mumtaz Qaumi 1. His Honour imposed an aggregate sentence with respect to Mumtaz Qaumi comprising imprisonment for 50 years with a non-parole period of 36 years commencing on 9 December 2014 and expiring on 8 December 2050, with a balance of term of 14 years commencing on 9 December 2050 and expiring on 8 December 2064. 2. In accordance with the statutory requirements for aggregate sentencing, his Honour nominated the following indicative sentences concerning Mumtaz Qaumi: Count Offence Max Penalty - Imprisonment for Standard Non-parole Period (SNPP) Indicative Sentence of Imprisonment First Indictment 1. Manslaughter of Mahmoud Hamzy (on or about 29 October 2013) 25 years Nil 12 years (The jury returned a verdict of not guilty of murder but guilty of manslaughter) Section 24 Crimes Act 1900 2. Cause grievous bodily harm to Omar Ajaj with intent to cause grievous bodily harm (on or about 29 October 2013) 25 years 7 years 8 years with a non-parole period of 6 years Section 33(1)(b) Crimes Act 1900 3. Conspiracy to murder Mohammed Hamzy (between 1 October and 30 October 2013) 25 years 10 years 10 years with a non-parole period of 7½ years Section 26 Crimes Act 1900 4. Soliciting the murder of Michael Odisho (on 3 November 2013) 25 years 10 years 10 years with a non-parole period of 7½ years Section 26 Crimes Act 1900 5. Shoot at Michael Odisho with intent to murder (on 3 November 2013) 25 years 10 years 10 years with a non-parole period of 7½ years Section 29 Crimes Act 1900 9. Cause grievous bodily harm to "H" with intent to cause grievous bodily harm to another person (on 4 November 2013) 25 years 7 years 8 years with a non-parole period of 6 years Section 33(1)(b) Crimes Act 1900 10. Soliciting the murder of Abdul Abu-Mahmoud 25 years 10 years 12 years with a non-parole period of 9 years Section 26 Crimes Act 1900 11. Shooting at Abdul Abu-Mahmoud with intent to murder (on or about 7 November 2013) 25 years 10 years 12 years with a non-parole period of 9 years Section 29 Crimes Act 1900 13. Shooting at Khalil Khalil with intent to murder (on or about 7 November 2013) 25 years 10 years 12 years with a non-parole period of 9 years Section 29 Crimes Act 1900 15. Shooting at Hassan Soueid with intent to murder (on or about 7 November 2013) 25 years 10 years 12 years with a non-parole period of 9 years Section 29 Crimes Act 1900 18. Firing a firearm at a dwelling-house in the course of criminal activity with reckless disregard for the safety of others 16 years 6 years (there was no SNPP for this offence at the time of the offence) 6 years with a non-parole period of 4½ years Section 93G(1B) Crimes Act 1900 20. Supply not less than a large commercial quantity of a prohibited drug (between 7 October 2013 and 12 December 2013) Imprisonment for life or a fine of 5000 penalty points or both 15 years 4 years with a non-parole period of 3 years Sections 25(2) and 33(3)(a) Drug Misuse and Trafficking Act 1985 21. Possession of a prohibited firearm (a Mossberg sawn-off pump action shotgun), not being authorised to do so by a license or permit (between 6 July 2013 and 12 December 2013) 14 years 4 years (the SNPP at the time of this offence was 3 years) 4 years with a non-parole period of 3 years Section 7(1) Firearms Act 1996 22. Possession of a pistol (a Smith and Wesson 0.38 special calibre model 10 revolver), not being authorised to do so by a license or permit (between 6 July 2013 and 12 December 2013) 14 years 4 years (the SNPP at the time of this offence was 3 years) 4 years with a non-parole period of 3 years Section 7(1) Firearms Act 1996 23. Directing the activities of a criminal group (between 1 July 2013 and 8 January 2014) 15 years Nil 3 years Section 93T(4A) Crimes Act 1900 Second Indictment 1. Murder of Joseph Antoun (on 16 December 2013) Life imprisonment 20 years 38 years with a non-parole period of 26 years Section 18(1)(a) Crimes Act 1900 1. Once again, it will be noted from entries in this table that erroneous standard non-parole periods were taken into account with respect to Counts 18, 21 and 22. This aspect gives rise to a ground of appeal concerning sentence with respect to Mumtaz Qaumi. Aggregate Sentence for Jamil Qaumi 1. With respect to Jamil Qaumi, the sentencing Judge imposed an aggregate sentence of imprisonment for 30 years comprising a non-parole period of 21 years commencing on 7 December 2014 and expiring on 6 December 2035 with a balance of parole of nine years commencing on 7 December 2035 and concluding on 6 December 2044. 2. Once again, in conformity with statutory obligations, his Honour nominated the following indicative sentences with respect Jamil Qaumi: Count Offence Max Penalty - Imprisonment for Standard Non-parole Period (SNPP) Indicative Sentence of Imprisonment 1. Manslaughter of Mahmoud Hamzy (on or about 29 October 2013) 25 years Nil 12½ years (The jury returned a verdict of not guilty of murder but guilty of manslaughter)) (Taking into account offences on a Form 1 specified at [389] below) Section 24 Crimes Act 1900 2. Cause grievous bodily harm to Omar Ajaj with intent to cause grievous bodily harm (on or about 29 October 2013) 25 years 7 years 8 years with a non-parole period of 6 years Section 33(1)(b) Crimes Act 1900 3. Conspiracy to murder Mohammed Hamzy (between 1 October and 30 October 2013) 25 years 10 years 10 years with a non-parole period of 7½ years Section 26 Crimes Act 1900 4. Soliciting the murder of Michael Odisho (on 3 November 2013) 25 years 10 years 10 years with a non-parole period of 7½ years Section 26 Crimes Act 1900 5. Shoot at Michael Odisho with intent to murder (on 3 November 2013) 25 years 10 years 10 years with a non-parole period of 7½ years Section 29 Crimes Act 1900 7. Soliciting the murder of Masood Zakaria (on 3 November 2013) 25 years 10 years 10 years with a non-parole period of 7½ years Section 26 Crimes Act 1900 9. Cause grievous bodily harm to "H" with intent to cause grievous bodily harm to another person (on 4 November 2013) 25 years 7 years 10 years with a non-parole period of 7½ years Section 33(1)(b) Crimes Act 1900 10. Soliciting the murder of Abdul Abu-Mahmoud (on or about 7 November 2013) 25 years 10 years 12 years with a non-parole period of 9 years Section 26 Crimes Act 1900 11. Shooting at Abdul Abu-Mahmoud with intent to murder (on or about 7 November 2013) 25 years 10 years 12 years with a non-parole period of 9 years Section 29 Crimes Act 1900 13. Shooting at Khalil Khalil with intent to murder (on or about 7 November 2013) 25 years 10 years 12 years with a non-parole period of 9 years Section 29 Crimes Act 1900 15. Shooting at Hassan Soueid with intent to murder (on or about 7 November 2013) 25 years 10 years 12 years with a non-parole period of 9 years Section 29 Crimes Act 1900 20. Supply not less than a large commercial quantity of a prohibited drug (between 7 October 2013 and 12 December 2013) Imprisonment for life or a fine of 5000 penalty points or both 15 years 4 years with a non-parole period of 3 years Sections 25(2) and 33(3)(a) Drug Misuse and Trafficking Act 1985 21. Possession of a prohibited firearm (a Mossberg sawn-off pump action shotgun), not being authorised to do so by a license or permit (between 6 July 2013 and 12 December 2013) 14 years 4 years (the SNPP at the time of this offence was 3 years) 4 years with a non-parole period of 3 years Section 7(1) Firearms Act 1996 22. Possessing a Smith & Wesson 0.38 special calibre revolver, not being authorised to do so by a license or permit 14 years 4 years (the SNPP at the time of this offence was 3 years) 4 years with a non-parole period of 3 years Section 7(1) Firearms Act 1996 23. Directing the activities of a criminal group (between 1 July 2013 and 8 January 2014) 15 years Nil 2 years Section 93T(4A) Crimes Act 1900 1. Once again, it will be observed from entries in this table that an erroneous standard non-parole period was taken into account with respect to Counts 21 and 22 and this aspect gives rise to a ground of appeal on behalf of Jamil Qaumi. Grounds of Appeal on Sentence 1. Farhad Qaumi relies upon the following grounds of appeal with respect to sentence: * Ground 2 - the learned Judge erred in relation to the existence of a standard non-parole period or the length of the standard non-parole period in relation to Counts 18, 19, 21 and 22 on the first indictment and Count 2 on the second indictment. * Ground 3 - the disparity between the sentence imposed on the Applicant (for the murder of Joseph Antoun) and that imposed on the co-offender (NK) is such as to give rise to a justifiable sense of grievance. * Ground 4 - the aggregate sentence was manifestly excessive. 1. Mumtaz Qaumi relies upon the following grounds of appeal concerning sentence: * Ground 4 - the learned Judge erred in relation to the existence of a standard non-parole period or the length of the standard non-parole period in relation to Counts 18, 21 and 22 on the first indictment dealt with before the jury. * Ground 5 - the disparity between the sentence imposed on the Applicant and that imposed on the co-offender (NK) is such as to give rise to a justifiable sense of grievance on Count 1 of the second indictment (murder of Joseph Antoun). * Ground 6 - abandoned. * Ground 7 - the aggregate sentence was manifestly excessive. * Ground 8 - the Court erred in concluding that the objective criminality for Counts 2 and 3 was in the middle range of objective seriousness for the Applicant Mumtaz Qaumi. 1. Jamil Qaumi relies upon the following grounds of appeal concerning sentence: * Ground 4 - the learned Judge erred in relation to the length of the standard non-parole period applied for Counts 21 and 22 on the first indictment. * Ground 5 - the Court erred in concluding the objective criminality for the conspiracy to murder charge (Count 3) was in the middle range of objective seriousness. * Ground 6 - the Applicant seeks leave to appeal on the total sentence imposed on him of which the indicative sentence imposed for Counts 21 and 22 were constituent parts. 1. Although expressed as a separate ground of appeal, Jamil Qaumi's Ground 6 may be taken as a submission that the aggregate sentence was affected by the erroneous standard non-parole periods taken into account for Counts 21 and 22 so that this Court should intervene and resentence that Applicant. The ground does not contend that the aggregate sentence was manifestly excessive. Successful Grounds of Appeal Against Conviction for Farhad Qaumi and Mumtaz Qaumi 1. Farhad Qaumi has succeeded in his conviction appeal with respect to Count 18. It will be appropriate to resentence Farhad Qaumi putting to one side the indicative sentence nominated for Count 18 as part of the aggregate sentence. Once again, it will be appropriate to utilise the aggregate sentencing provisions for the purpose of sentencing Farhad Qaumi with correct standard non-parole periods to be taken into account in that respect. 2. Mumtaz Qaumi has succeeded in his conviction appeal with respect to the offences contained in Counts 9 and 18 on the first indictment. Accordingly, the indicative sentences for those matters will be put to one side and it will be necessary to resentence Mumtaz Qaumi for the remaining offences maintaining the use of an aggregate sentence for that purpose. In the course of resentencing Mumtaz Qaumi, regard will be had to the correct standard non-parole periods applicable to his case. 3. As noted earlier, Jamil Qaumi has not succeeded in his challenge to conviction for any of the offences for which he was sentenced. The outcome of his sentence appeal will require an assessment of the merits of the grounds of appeal raised on his behalf. Facts of Offences 1. The judgment of Hoeben CJ at CL has outlined the facts of offences for which each Applicant has appealed against conviction. For the purpose of the sentence appeals, it is appropriate to set out Hamill J's concise findings concerning the offences. 2. As the convictions of Farhad Qaumi and Mumtaz Qaumi for the murder of Joseph Antoun are not considered in the present judgment of Hoeben CJ at CL, it will be necessary to say something about the facts of that offence with respect to those Applicants. 3. The sentencing Judge made findings of fact with respect to the offences noting that the findings were made to the criminal standard of proof, guided by and consistent with the verdicts of the jury and based on the evidence adduced in the course of the two trials. Counts 1-3 - The Hamzy Shooting at Revesby Heights on 29 October 2013 1. Each of the Applicants was found guilty by the jury of the manslaughter of Mahmoud Hamzy (as an alternative verdict on the count of murder charged in Count 1), causing grievous bodily harm to Omar Ajaj with intent to cause grievous bodily harm (Count 2) and conspiracy to murder Mohammed Hamzy (Count 3). No conviction appeal is brought with respect to these counts. 2. The sentencing Judge made the following findings concerning these offences (at ROS[4]-[12]) (footnotes omitted): "4 The first shooting incident took place at Revesby Heights on 29 October 2013. Each of the offenders was convicted of conspiracy to murder Mohammed Hamzy (count 3), the manslaughter of Mahmoud Hamzy (an alternative to count 1 charging murder) and causing grievous bodily harm to Omar Ajaj with intent to cause grievous bodily harm (count 2). 5 On the afternoon of the shooting, Farhad received information from Witness M that Mohammed Hamzy intended to kill him. Farhad then asked Witness M to repeat the allegation to several other members of the group. There was conflict between the witnesses as to precisely what was said and I am certain that Witness M understated what she told the group. I accept, and the jury must have accepted, that the offenders were told that Mohammed Hamzy made an earlier, foiled, attempt to execute Farhad Qaumi and then took out a contract on his (Farhad's) life. While I accept that there was pre-existing rivalry between the two chapters of the Brothers For Life, the idea of killing Mohammed Hamzy arose because of the information provided by Witness M on the afternoon of 29 October 2013. There is no evidence upon which I am prepared to act to suggest that the plot to kill the rival gang leader was formulated, or even contemplated, before the day of the shooting. 6 There were a number of meetings over the next few hours and a conspiracy was entered between the three offenders and a number of other members of the BFL Blacktown to murder Mohammed Hamzy that night. The jury's verdicts establish that the offenders believed this action was necessary to defend Farhad Qaumi from Hamzy's plan to kill him. The verdicts also show that the jury found beyond reasonable doubt that this was not a reasonable response to the circumstances as the offenders perceived them. 7 Three handguns were obtained and members were assigned different tasks. Witness M offered to be the driver when another member was reluctant to undertake that role. Witness M knew the address and the time that Hamzy was required to be home under a court-imposed curfew. Witness M played an active role in the events as they unfolded. Jamil Qaumi, Witness L and a third member of the group were provided with the handguns. There were two 0.38 calibre revolvers and a 0.45 calibre pistol. Each of those guns was discharged in the course of the incident. There was controversy as to the identity of the third shooter (who used what I will describe as the second 0.38 calibre revolver). For the purpose of sentencing the three offenders, it is unnecessary to make a finding as to the third shooter's identity. The jury was unable to reach agreement in the case of a co-accused who the prosecution asserts is the third shooter. This co-accused will be re-tried later this year and it is undesirable to make any further comment as to the problems confronting the prosecution in establishing his identity beyond reasonable doubt. There was also a dispute as to whether it was Witness L or Jamil Qaumi who carried and used the first 0.38 calibre revolver. The significance of that dispute is that the first 0.38 revolver was the gun that was used to shoot Mahmoud Hamzy three times in the head at relatively close range. These were the shots that killed him. 8 Witness M drove the three shooters to the Hamzy residence. There were a number of people, including Mohammed Hamzy's wife, present in the house. The information provided by Witness M was that Mohammed Hamzy would be in the garage. Before they set out, Farhad provided the shooters with a description of the target. That description was dangerously vague and based, in part, on the clothing Hamzy was wearing earlier in the day. The three shooters entered the garage. Four men were present. Jamil Qaumi and Witness L opened fire on two of them while the other two, including Mohammed Hamzy, escaped through a door into the house. Omar Ajaj received serious injuries from two gunshot wounds. The target's cousin, Mahmoud Hamzy, received multiple gunshot wounds from the 0.45 calibre pistol and a 0.38 revolver. This included the three head shots fired from close range from the first 0.38 calibre revolver. The shooters mistakenly believed this was Mohammed Hamzy because, amongst other things, he was wearing a cap consistent with the description provided by Farhad before they set out. The shooters ran from the garage and, as they departed, the third shooter fired into the garage causing damage to a wall. Witness M drove the three shooters from the scene. 9 Meanwhile, Farhad and Mumtaz Qaumi travelled to the Coolibah Hotel in Merrylands. There is CCTV footage of them playing the poker machines there and interacting with a doorman. This was calculated to distance themselves from the shooting and to establish an alibi. There is CCTV footage of Witness L arriving at the hotel after the shooting and evidence of him trying to locate Farhad and Mumtaz after the shooting. 10 I am unable to resolve the question of whether Witness L or Jamil Qaumi fired the headshots that killed Mahmoud Hamzy. Witness L gave evidence that he had the 0.45 calibre pistol and gave graphic evidence of Jamil Qaumi firing the 0.38 calibre revolver at the head of Mahmoud Hamzy while the victim was lying helpless on the ground. Witness J gave evidence that he saw Farhad Qaumi hand the 0.45 pistol to Witness L. That evidence supports the Crown case that it was Jamil Qaumi who fired the headshots. On the other hand, Jamil Qaumi gave evidence that the headshots were fired by Witness L. Witness L's evidence of the number of bullets in the gun was more consistent with it being the 0.38 revolver. The evidence of the position of the shooters within the garage, and the CCTV footage of the order in which the three men entered and left the garage, also creates a doubt about Witness L's evidence. The jury's verdicts do not resolve this question. If the matter were to be resolved on the balance of probabilities, I would act on the combination of the evidence of Witness L and Witness J. However, because the matter may aggravate the objective criminality of Jamil Qaumi, and also be used against him on the question of future dangerousness, it is an issue upon which the criminal standard of proof applies. I am not satisfied beyond reasonable doubt that Jamil Qaumi fired the 0.38 revolver at the head of Mahmoud Hamzy. In view of the evidence of the respective capacity of the two guns and the number of bullets fired, along with the position of the three men at critical times, I am not prepared to act on this part of the evidence of Witness L even though it receives some inferential support from Witness J. 11 The Crown case against each accused was based on the existence and execution of a joint criminal enterprise. Accordingly, precisely who fired each shot, who carried which gun and the exact role of each offender is not as significant than would be the case if Jamil Qaumi was charged simply as a principal in the first degree. The fact is that each participant entered into a criminal agreement to kill Mohammed Hamzy and that Witness L and Jamil Qaumi shot at Mahmoud Hamzy with an intention to kill him. Each participant is criminally responsible for the act of the man who fired the fatal shots. 12 The impact of this crime on the victims was horrendous. There was medical evidence of the injuries suffered by Omar Ajaj and Mahmoud's sister, Hassnah Hamzy, provided a victim's impact statement." 1. His Honour made the following additional findings (ROS[13]-[14]): "13 The facts of the Hamzy shooting constitute criminality of a very high order. The shooting was premeditated and reasonably well planned, even though the wrong man was shot and the planning and premeditation took place over a number of hours (not days or weeks). It was carried out in a suburban home where the conspirators and principals did not know who might be present but did know, or ought to have known, that people other than the intended target would be put in danger. It involved the use of three handguns that the offenders were able to obtain quickly. It was part of an ongoing and organised criminal enterprise undertaken in a violent gangland setting. I do not accept the Crown's submission that the motive for these crimes was to execute and eliminate a rival gang member although that would have been the fortuitous consequence (from the offenders' perspective) had the correct target been killed. That submission was based almost entirely on the evidence of Witness M, whose evidence I am unable to accept on critical issues unless it is supported by other evidence. 14 The shooting was carried out because of a genuine belief in each of the offenders that it was necessary to kill Mohammed Hamzy in order to protect Farhad Qaumi's life. That is the only possible basis upon which the jury could have acquitted each accused of the murder charge. The jury's verdict on the three charges shows that it was satisfied beyond reasonable doubt that the accused's conduct was not a reasonable response to the circumstances as each of them perceived them. I am bound by that finding but, in any event, I am also satisfied of that fact beyond any reasonable doubt." 1. His Honour set the scene for what followed after the Hamzy shooting (at ROS[15]): "In the aftermath of the Hamzy shooting, members of the BFL Blacktown were concerned that the BFL Bankstown may seek retribution. It was in that context that the next three shooting offences occurred over the following week or so. Luckily – nobody else was killed but an innocent teenage girl suffered awful injuries, three men received gunshot wounds and a number of lives were placed in peril." 1. The sentencing Judge made findings concerning the objective seriousness of offences which carried standard non-parole periods. With respect to each Applicant, his Honour found that each of the offences in Counts 2 and 3 fell in the middle range of objective seriousness (ROS[177], [201], [215]). 2. No challenge was made to the factual findings of the sentencing Judge although certain grounds of appeal challenged his Honour's assessment of the objective seriousness of these offences, a topic to which I will return. Counts 4-5 - The Shooting of Michael Odisho on 3 November 2013 1. Each of the Applicants challenged his conviction for the offences contained in Counts 4 and 5, with the evidence being considered by Hoeben CJ at CL in his judgment dismissing the conviction appeals concerning these counts (at [109]-[144]). 2. Once again, it is helpful to set out the sentencing Judge's succinct findings of fact with respect to these offences (at ROS[18]-[22]) (footnotes omitted): "18 There were a number of meetings after the Hamzy shooting and, on 2 November 2013, members of the BFL Blacktown, including the three offenders, attended the Star City Casino. Farhad Qaumi spoke with two members of the BFL Bankstown and (it seems) learned that the rival gang suspected or believed that Farhad and the BFL Blacktown were responsible for the Hamzy shooting. There was a great controversy in the trial as to whether there was a further meeting of a smaller group of members after the group left the casino. I am satisfied there was such a meeting. This finding is based on the testimony of Witness L and the support it receives from telephone cell tower records that place, at least generally, the telephones of relevant participants in the area of Woolloomooloo or the area of the Domain near Mrs Macquarie's chair and the Royal Botanic Garden. Other telephone records, and a police stop, show that Farhad and Mumtaz Qaumi did not travel home to the central coast for some hours after leaving the casino. The finding is also consistent with the jury verdicts. At this meeting Farhad Qaumi identified a number of members of the BFL Bankstown who were to be targeted for assassination. This included Michael Odisho and Masood Zakaria, two of Mohammed Hamzy's trusted lieutenants. The jury's verdicts suggest that it was also satisfied that this meeting took place. 19 On the evening of 3 November 2013, Michael Odisho was shot in his home in the presence of his mother. The jury found the three offenders guilty of soliciting the murder of Odisho (count 4) and attempting (shooting with intent) to murder him (count 5). 20 The evidence established that Witness C was the driver and the shooters were Witness I (armed with a revolver) and Witness D (armed with a shotgun). When Odisho came to the front door of the house, both men opened fire upon him. The ballistic and forensic examination suggests that around 7 shots were fired. Odisho received serious injuries comprised of gunshot wounds to his left elbow, left thigh and the back of his left leg. These required surgical intervention. 21 The jury accepted beyond reasonable doubt that the offenders solicited other members of the gang to carry out this attempted murder. The jury must have rejected various assertions made by, or on behalf, of the offenders in the course of the trial. These included that Farhad was not involved at all, that the plan was formulated by Witnesses L and I who feared that they were being blamed for the Hamzy shooting, and that the plan involved no more than shooting at Odisho's house as a warning. The jury also rejected the suggestion that the act was carried out as some kind of pre-emptive self-defence. 22 These two offences are serious offences of their kind. They were planned and pre-meditated. They involved gangland violence, the use of guns and were carried out in the victim's home. Judging from his appearance and performance on a current affairs programme, discussed in an earlier judgment, Mr Odisho appears to have recovered well from his injuries. He refused to appear at the trial, threatening to disrupt the proceedings if he was compelled and, as I understand it, is currently serving a sentence of imprisonment. The fact that the victim was another gang member, and apparently quite a disreputable fellow, does not mitigate the seriousness of the offence." 1. Once again, his Honour made findings concerning the objective seriousness of these offences. His Honour found (ROS[177], [201], [215]): * Farhad Qaumi - each of Counts 4 and 5 was above the middle range of objective seriousness; * Mumtaz Qaumi - each of Counts 4 and 5 was in the middle range of objective seriousness; * Jamil Qaumi - each of Counts 4 and 5 was in the middle range of objective seriousness. 1. No challenge was made to any of his Honour's findings on sentence concerning Counts 4 and 5. Counts 7-9 - The Zakaria Shooting on 4 November 2013 1. Hoeben CJ at CL considered the evidence with respect to these counts in the course of determining the conviction appeals (at [145]-[199]). 2. Farhad Qaumi and Jamil Qaumi were unsuccessful in their appeals against conviction with respect to the offences contained in Counts 7 and 9. 3. Mumtaz Qaumi was successful with respect to his conviction appeal concerning Count 9 so that his conviction on that matter is to be quashed with a verdict of acquittal to be entered. Accordingly, that matter is to be placed to one side. 4. It is appropriate to set out the findings of Hamill J concerning these offences although, of course, what his Honour said with respect to Mumtaz Qaumi will be disregarded as he is to be acquitted of the offence contained in Count 9. Hamill J said (ROS[23]-[31]) (footnotes omitted): "23 The next night, 4 November 2013, there was a shooting at the Zakaria home in Blacktown. The target of the shooting was Masood Zakaria but a teenage girl (H) was shot when MK discharged a shotgun into the home. Once again, Witness C was the driver. Witness D was directed to lure Masood out of the house because he knew him. MK and Witness I were designated to be the shooters. 24 The jury found Farhad and Jamil Qaumi guilty of soliciting the murder of Masood Zakaria (count 7), not guilty of attempted murder (count 8) but guilty of the alternative count of causing grievous bodily harm to H with intent to inflict grievous bodily harm (count 9). The jury was unable to agree upon its verdict for Mumtaz Qaumi on count 7, found him not guilty of count 8 but guilty of count 9. 25 The verdicts in respect of the charges arising out of the Zakaria shooting demonstrated the jury's careful discernment between the counts and the cases made against each accused. The evidence of what (if anything) Mumtaz Qaumi said and did around the Zakaria shooting was inconsistent and weak. Further, the jury asked a question in the course of its deliberation as to whether the Crown relied on joint criminal enterprise in respect of the charge of solicit to murder Masood Zakaria. The answer to that question was 'no'. Accordingly, the jury accepted that Mumtaz was a party to the joint criminal enterprise but did not accept that he directly solicited the shooters to kill Masood Zakaria. These findings, and the consequent verdicts, were consistent with the quality of the evidence tendered against Mumtaz Qaumi. 26 The jury acquitted MK of count 8 and could not agree on a verdict for MK on count 9. His case involved two different propositions. The first was that when he discharged the firearm, he did not have the specific intention to kill or inflict grievous bodily harm. The second was that he was acting under duress. MK's acquittal on count 8 suggests that the jury were not satisfied that he formed the intention to kill at the time he discharged the shotgun or had a reasonable doubt about the issue of duress. The failure to reach a verdict on count 9 for MK, considered with the conviction of Farhad and Jamil Qaumi of that count, suggests that the jury was divided on the issue of duress in MK's case. The Crown case against the offenders on count 8 was based on joint criminal enterprise. It was required to prove that the shooter (MK) carried out the shooting with intent to kill. The acquittals on count 8 suggest that the jury had a doubt about this. 27 Consistent with the jury's verdicts, the evidence established that Farhad identified Masood Zakaria as a target in the meeting that occurred after the visit to the Star City Casino on 2 November 2013. On the day of the shooting Farhad and Jamil Qaumi gave directions to MK and Witnesses C, D and I as to how the shooting was to be carried out. They provided the shooters with the guns that were to be used. Mumtaz Qaumi was present and participating in the enterprise but did not give any instructions to those directed to carry out the shooting. There was evidence that Farhad was angry at the failed attempt on Odisho's life the night before, saying something to the effect of 'How hard is it to shoot somebody?' 28 In compliance with those directions, Witness C drove the other three men to the Zakaria residence and Witness D attempted to lure Zakaria out of the house. MK then opened fire with a shotgun. Witness I, armed with a revolver, did not fire his weapon. That was his evidence and it was supported by the absence of forensic or ballistic evidence that a revolver was discharged. All of the damage to the house, and H's injuries, were consistent with the use of a shotgun. This part of the evidence provided support for the Crown's submission that the jury should reject the defence case that the Zakaria shooting was the brainchild of Witness I. Witness C drove the other three men from the scene and they made their escape. 29 The jury rejected the defence case that Witness I and others were the instigators of this shooting or that the only plan of which the offenders were aware involved shooting at the house as a warning. 30 H was left with devastating injuries. A large number of shotgun pellets could not be removed from her body and she has elevated lead levels as a result. Her capacity to become pregnant, and to carry a baby to full term, has been compromised. 31 These offences are extremely serious. They formed part of an ongoing criminal enterprise being played out in a gangland setting and involved the premeditated and reasonably well-planned employment of violence. The offences involved the use of guns, took place in the victim's home and demonstrated an utter disregard for the safety of those in the vicinity. The impact on the primary victim, an innocent teenage child, is horrific." His Honour made the following findings concerning the objective seriousness of the offences committed by Farhad Qaumi and Jamil Qaumi (ROS[177], [215]): 1. Farhad Qaumi - * Count 7 was above the middle range of objective seriousness; * Count 9 was well above the middle range of objective seriousness. Jamil Qaumi - * Count 7 was in the middle range of objective seriousness; * Count 9 was above the middle range of objective seriousness. 1. Farhad Qaumi and Jamil Qaumi did not challenge his Honour's findings on sentence concerning Counts 7 and 9. Counts 10-16 - The Chokolatta Café Shooting on 7 November 2013 1. With respect to each of Counts 10 to 15, there was a directed verdict of not guilty with respect to Farhad Qaumi. 2. Each of Mumtaz Qaumi and Jamil Qaumi was found guilty of the offences charged in Counts 10, 11, 13 and 15. These matters were considered by Hoeben CJ at CL in the context of the unsuccessful conviction appeals relating to these counts (at [200]-[234]). 3. Hamill J made the following findings of fact concerning these offences for the purpose of sentence (ROS[32]-[37]) (footnotes omitted): "32 On 7 November 2013 the spate of shootings continued. This shooting took place outside of the Chokolatta Café in Bankstown. The target was a man called Abdul Abu-Mahmoud. He was targeted while sitting in a car outside the café with two other men. Mumtaz and Jamil Qaumi were found guilty of soliciting the murder of Mr Abu-Mahmoud (count 10) and three counts of shoot with intent to murder (counts 11, 13 and 15). There was no evidence that Farhad Qaumi was complicit in these offences and, at the conclusion of the prosecution case, I directed the jury to find him not guilty of counts 10, 11, 12, 13, 14, 15 and 16. 33 The motive for this shooting was bizarre. There was no evidence that Farhad Qaumi nominated Abu-Mahmoud as a target and, according to Witness M, specifically ruled him out. Farhad Qaumi left Australia shortly after the Zakaria shooting leaving Mumtaz Qaumi in charge. Mr Abu-Mahmoud was not a member of the BFL Bankstown but was believed to have some association with members of that group. Mumtaz was concerned that he may have access to the addresses of the leaders of the BFL Blacktown and might provide those addresses to the BFL Bankstown. Accordingly, he formulated a harebrained plan to kill Abu-Mahmoud. 34 There was evidence that Witness M and others attended the Chokolatta Café on the early evening of the shooting so that M could identify Abu-Mahmoud to those engaged to carry out the shooting. There were telephone intercepts in which Jamil Qaumi gave various directions to Witness I and text exchanges between Jamil and Witness M. Meanwhile, Mumtaz Qaumi travelled from his home on the central coast to Sydney. While Mumtaz's attendance on the earlier visit to the café could not be sustained on the cell tower evidence of his movements, the jury accepted that he and Jamil solicited the murder of Abu-Mahmoud. 35 Ultimately, the offenders directed Witness I to drive the shooters to the restaurant at around closing time and to block Abu-Mahmoud's car when the target left the café. As it happened, Abu-Mahmoud got into his car along with two other men and all three men were sitting in the car when the shooting occurred. Witness I blocked the car and MK (armed with a 0.38 calibre revolver) and Witness D (armed with a shotgun) opened fire on and into the car. Two of the occupants received gunshot wounds although both were expected to make a full recovery. The ballistics evidence showed that projectiles fired from the shotgun struck the top of the back of the driver's seat. It was dumb luck that the projectile did not enter the back of the head and kill Mr Khalil who was sitting there. The ballistics evidence supported MK's case that he fired the revolver into the side of the car and not at the three victims sitting inside the car. 36 The jury was unable to agree upon verdicts in respect of MK on the counts arising out of the Chokolatta Café shooting. It may be that some members of the jury doubted whether he had the intention to kill or inflict grievous bodily harm or whether duress had been negatived beyond reasonable doubt. Resolution of those matters, which involve a degree of speculation, is not necessary to understand the guilty verdicts reached in relation to Mumtaz and Jamil Qaumi. There was no doubt that at least one of the shooters (Witness D) fired his weapon with intention to kill. 37 The offences arising out of the Chokolatta Café shooting are obviously extremely serious. They involved a plot to take the life of one man, endangered the lives of three men directly and were carried out in a public place with no regard for the safety of the public. They constituted a continuation of a violent, underworld rampage in which a number of guns were readily accessed and discharged in or near people's homes and public places." 1. His Honour made the following findings concerning the objective seriousness of the offences committed by Mumtaz Qaumi and Jamil Qaumi (ROS[177], [201]): Mumtaz Qaumi - * Count 10 was above the middle range of objective seriousness; * Count 11 was above the middle range of objective seriousness; * Count 13 was just above the middle range of objective seriousness; * Count 15 was just above the middle range of objective seriousness. Jamil Qaumi - * Count 10 was at, or just above the middle range of objective seriousness; * Count 11 was at, or just above the middle range of objective seriousness; * Count 13 was at, or just above the middle range of objective seriousness; * Count 15 was at, or just above the middle range of objective seriousness. 1. Mumtaz Qaumi and Jamil Qaumi did not challenge his Honour's findings on sentence concerning Counts 10, 11, 13 and 15. Count 18 - the Greenacre Shooting on 28 November 2013 1. As demonstrated in the judgment of Hoeben CJ at CL (at [235]-[265]), each of Farhad Qaumi and Mumtaz Qaumi was successful in his conviction appeal concerning Count 18 so that those convictions are to be quashed and verdicts of acquittal entered in their place. Accordingly, it is not necessary to recite the findings made for the purpose of sentence concerning those offences. 2. Jamil Qaumi was not charged with the offence contained in Count 18. Counts 19-22 - Drug Supply and Firearms Offences 1. The offences contained in these counts were considered by Hoeben CJ at CL in the context of the unsuccessful conviction appeals relating to these matters (at [266]-[319]). 2. Hamill J made the following findings concerning these offences for the purpose of sentence (ROS[41]-[42]) (footnotes omitted): "41 In addition to the offences arising out of the five shootings directed at the members and associates of the BFL Bankstown, the jury also found the offenders guilty of possession of some of the firearms used in those offences. Farhad Qaumi was convicted of possessing a 0.45 calibre pistol (count 19). That pistol was never recovered but ballistics evidence suggested that the same 0.45 calibre pistol was used in the Hamzy shooting as well as the 'drive-by' shooting at Greenacre (count 18). All three offenders were convicted of possessing a prohibited firearm (a Mossberg sawn-off pump action shotgun) (count 21) and possessing a pistol (a Smith & Wesson 0.38 calibre revolver) (count 22). Those two guns were located in a bag that also contained drugs. There was a deal of evidence in the trial of attempts by the offenders to recover this bag in the latter part of 2013. The Mossberg shotgun was used in the Zakaria shooting. The Smith & Wesson revolver was used in the Hamzy shooting. 42 The three offenders were also convicted of the supply of a large commercial quantity of a prohibited drug (count 20). The evidence suggested that one of the core businesses of the BFL Blacktown was the supply of various drugs. The offenders are not to be sentenced for those activities. However, there was evidence of their involvement in the possession of a bag that contained the two guns subject of counts 21 and 22 along with a quantity of tablets containing a drug called N-(2-methoxylbenzl)-2,5-dimethoxy-4-iodophenethylamine. The quantity of drugs in the bag was 1,894.4 grams. The large commercial quantity prescribed for this drug in the Schedule to the Drug Misuse and Trafficking Act 1985 (NSW) is 2 grams. An expert certificate was tendered on sentence. It established that the drug is a 'relatively new psychoactive substance' and that there is a lack of comprehensive data on its effects. It has hallucinogenic effects similar to LSD and can cause severe agitation and confusion, severe psychological and behavioural changes, aggression and unpredictable violent episodes." 1. His Honour made the following findings concerning the objective seriousness of offences committed in Counts 19-22 (ROS[177], [201], [215]): Farhad Qaumi - * Count 19 was in the middle range of objective seriousness; * Count 20 fell below the middle range of objective seriousness; * Count 21 was in the middle range of objective seriousness; * Count 22 was in the middle range of objective seriousness; Mumtaz Qaumi - * Count 20 fell well below the middle range of objective seriousness; * Count 21 was in the middle range of objective seriousness; * Count 22 was in the middle range of objective seriousness. Jamil Qaumi - * Count 20 fell well below the middle range of objective seriousness; * Count 21 was in the middle range of objective seriousness; * Count 22 was in the middle range of objective seriousness. 1. None of the Applicants challenged his Honour's findings on sentence concerning Counts 19, 20, 21 and 22. Count 23 - Directing the Activities of a Criminal Group 1. As noted by Hoeben CJ at CL (at [320]), each of Farhad Qaumi and Jamil Qaumi abandoned his conviction appeal directed to Count 23. However, Mumtaz Qaumi appears to have left his conviction appeal on foot concerning this count although no submissions were directed to it on his behalf and his conviction appeal on that count was unsuccessful. 2. The sentencing Judge made the following findings concerning these offences (ROS[43]): "The three offenders were also convicted of directing the activities of a criminal group (count 23). This is the aggravated form of the offence provided for in s 93T(1A) Crimes Act 1900 (NSW) and carries a maximum penalty of 10 years imprisonment. The particulars of the activities of the group provided by the prosecution in relation to this count were the same activities covered by the offences in the indictment. In sentencing for most of the individual offences, one of the aggravating features is the fact that the offences were part of an organised criminal activity. In those circumstances the only appropriate exercise of discretion is to make the sentence for the criminal group charge either wholly or largely concurrent with the other sentences. Because of his unquestioned leadership role, the objective criminality of Farhad Qaumi is far greater than the other offenders in relation to this offence. Even when Mumtaz Qaumi was placed in charge, he was clearly motivated to do Farhad's bidding." 1. No challenge was made to this finding on sentence by any of the Applicants. Counts 1 and 2 on the Second Indictment - The Murder of Joseph Antoun and a Firearms Offence 1. As mentioned earlier, Farhad Qaumi and Mumtaz Qaumi were each convicted following a Judge-alone trial for the murder of Joseph Antoun. In addition, Farhad Qaumi was found guilty of the firearms offence which was Count 2 on the second indictment. Their appeals against conviction were unsuccessful. 2. It is appropriate to set out Hamill J's findings concerning these offences, noting that his Honour's findings were not disturbed or affected by the decision of the Court of Criminal Appeal dismissing the conviction appeal. Hamill J said concerning these offences (ROS[44]-[52]) (footnotes omitted): "44 After a trial by Judge alone, Farhad and Mumtaz Qaumi were convicted of the murder of Joseph Antoun on 16 December 2013. The facts are set out in some detail in my judgment explaining the reasons for finding each offender guilty. 45 The two offenders accepted a contract from Les Elias to organise the murder of Mr Antoun. They were paid at least $80,000, and possibly $100,000, to do this. It may be that they were promised $190,000 and that some of the money remains outstanding. The precise terms of the contract were unknowable due to the coded communications surrounding the transaction, the use of other business transactions to hide the true reason for the transfer of money and the predictable absence of evidence from those involved in organising the contract. 46 The two accused approached Witness L who had carried out two previous shootings on their behalf – the Hamzy shooting and the drive-by shooting at Greenacre. I am unable to determine beyond reasonable doubt that the offenders threatened him and his daughter as Witness L alleged, but there is no doubt that the offenders engaged him to carry out the killing. On 11 December 2013, the offenders showed Witness L the house where Mr Antoun lived with his wife and two daughters and, on the day of the killing, they provided him with a 0.38 calibre snub nose revolver. The offenders offered to pay Witness L part of the proceeds of the contract but never did so. 47 On the day of the murder, the offenders engaged Witness C to drive Witness L to the premises although they did not tell him the true purpose of the journey. After Witness L picked up the weapon from his home, Witness C drove Witness L to the residential premises of the victim. There is CCTV footage showing Witness L firing a number of shots at Mr Antoun who was standing at the front door. Teagan Mullens provided a chilling description of what she saw as the father of her twin daughters was executed in cold blood in her presence. At least one of the five bullets penetrated Mr Antoun's heart and he died quickly at the scene. Witness L ran from the premises and Witness C, who heard the gunshots and was now aware of the true purpose of the trip, drove Witness L from the scene. 48 After the shooting, Witness L showed the offenders where he had hidden the murder weapon and, after Witness L was arrested for breach of parole, Farhad Qaumi took steps to dispose of the gun. To this end, he used the services of Witness K, his young cousin and fellow BFL Blacktown member. Farhad was under surveillance at this time and Witness K was arrested shortly after he took possession of the gun. It was subsequently identified as the gun that killed Mr Antoun. 49 In the days following the murder, there was further surveillance of the offenders. There were meetings with Elias and also a gangland figure called Pasquale Barbaro. Barbaro had previously expressed strong and adverse opinions of Mr Antoun and he may also have been involved in the plot to engage the Qaumi brothers. 50 Teagan Mullens and the victim's brother Nemer both gave evidence of the impact of the offence on the family of Mr Antoun. Short and moving letters written by Mr Antoun's twin daughters were tendered and read by their mother. The impact on the family is unfathomable. 51 The seriousness of this offence speaks for itself and raises the question whether the level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met by the imposition of a sentence of life imprisonment without parole. 52 Farhad Qaumi was also convicted of possession of the 0.38 calibre snub nose revolver. This offence encompassed his control over the weapon when it was in the possession of others (Witnesses L and K) and for the short period in which he had actual custody of the weapon. There is no evidence Farhad owned the weapon and the most likely source of the weapon was Witness M who had family connections with access to guns and who was involved in the preparation for the shooting." 1. His Honour made the following findings concerning the objective seriousness of the offences on the second indictment (ROS[201], [215]): Farhad Qaumi - * Count 1 (the murder of Joseph Antoun) lay well above the middle range of objective seriousness; * Count 2 (the firearms offence) was in, or just above the middle range of objective seriousness. Mumtaz Qaumi - * Count 1 (the murder of Joseph Antoun) lay well above the middle range of objective seriousness. 1. No challenge was made by Farhad Qaumi or Mumtaz Qaumi to these findings on sentence. Form 1 Offences to be Taken into Account in Sentencing Jamil Qaumi for Count 1 1. As noted earlier, Jamil Qaumi asked that a number of offences be taken into account on a Form 1 when being sentenced for the manslaughter of Mahmoud Hamzy. The sentencing Judge referred to the Form 1 offences (ROS[16]-[17]) (footnotes omitted): "16 Jamil Qaumi has asked that three offences be taken into account in sentencing him for the manslaughter of Mahmoud Hamzy. These offences were part of one criminal escapade committed on 14 October 2013. The offences are (1) specially aggravated break and enter (the circumstance of special aggravation being the use of a pistol), (2) using a pistol without a licence and (3) demanding property with menaces. The facts of the offences are set out in Ex S-G and involve Jamil attending residential premises with a number of other gang members and attempting to extort money from a person who was trying to buy a car from an associate (Witness E). A gun was discharged by Witness L who shot a dog. When the initial plan failed, an attempt was made to extort Witness E by having him give the car to the gang members. 17 The offences to be taken into account are serious offences. Standing alone they would warrant the imposition of a substantial custodial sentence. However, because they are dealt with under s 32 of the Crimes (Sentencing Procedure) Act 1999, they will not be subject to any separate sentence and it is incorrect to consider what sentence may have been imposed and increase the current sentence by that measure or by some notional amount. However, the procedure means that the weight to be given to retribution and personal (or specific) deterrence will be greater in sentencing Jamil Qaumi for the manslaughter of Mahmoud Hamzy. The sentence for the manslaughter offence will inevitably be longer because those offences are taken into account. However, it will not be nearly as long as if the charges were the subject of separate sentences." Sentencing for Serious Offences of Gangland Violence 1. It is appropriate to set out observations made by Hamill J concerning the attitude of Courts when sentencing for serious crimes involving gangland violence. His Honour's statement remains apt for the purpose of this Court determining the sentence appeals. 2. His Honour said (at ROS[63]-[66]) (footnotes omitted): "63 All of the offences arose because the offenders were the leaders (or, in Jamil's, case the brother of the leaders) of a criminal gang that acquired a reputation for violence and indulged in a 'war' with a rival criminal gang. When he gave evidence on the issue of his conditions of incarceration, Farhad Qaumi said: 'They tried to kill me. … I mean, it's not a secret, I'm at war. That's what the proceedings is about here. There's casualties in war.' 64 It is worth noting that a number of the casualties in this so called 'war' were completely innocent victims caught in the cross-fire. Examples are Mahmoud Hamzy (who is dead), the child H (who may never be able to fall pregnant) and the people shot outside the Chokolatta Café. 65 While the Antoun murder was not part of this 'war', I draw the inference that Farhad Qaumi was approached to organise the killing because of the reputation for violence he had earned in the criminal underworld and his capacity to direct others to carry out murderous acts of gun violence. 66 In cases involving a sustained, even if relatively brief, course of conduct involving gangland violence, the Courts have made it clear that the conduct cannot be tolerated and must be met with punishment that denounces the crime and deters others from acting in a similar way." 1. These comments of the sentencing Judge bring to mind statements made by sentencing courts when persons have been sentenced for serious crimes of gangland violence including murder. Mention has been made already of these cases when referring to the role of accomplice witnesses in trials of this type (at [325]-[326] above). With respect to some of these offenders, sentences of life imprisonment were passed. 2. In R v Kanaan and Ors [2002] NSWSC 774, Wood CJ at CL sentenced several persons for a gangland murder. His Honour characterised the offences in the following way (at [31]-[37]): "31 I find that this was a deliberate assassination which was carried out under Kanaan's leadership, substantially in order to advance the interests of the prisoners in ongoing criminal activities. While it may not have had that result, it was motivated to a considerable degree by greed, and it was callous and cold blooded. While the prisoners are to be sentenced for the offence of murder, and not for any other criminal offences, it is impossible in assessing the objective criminality of this killing to ignore those wider circumstances, or the motive for it. The principal motive of Kanaan, and his recruitment of the others into his plan, I am satisfied, was to acquire an entrenched position for his subgroup in the trade of narcotics, and to increase their standing within that section of the criminal milieu which chooses to devote itself to that area of activity. A subsidiary motive was his sense of grievance at not being properly treated by Karam. 32 The fact that the offence was carried out in such a context, and involved the use of firearms, which appear to be regarded by many in the world of drug dealing as tools of the trade, was in my view, an aggravating circumstance. 33 There is not the slightest reason to suppose that the prisoners killed Karam to escape from his evil spider web, or that they had any intention of abandoning the business of selling cocaine, and of exacting protection money from drug runners on the streets of Kings Cross. 34 In these circumstances, the objective criminality of each of Mawas and Kanaan, as shooters, and of El Assaad as a party to a joint enterprise to murder Karam, is of a very high order indeed. 35 Murder remains the most serious crime in the criminal calendar: R v Verney NSWCCA 23 March 1993, and the sanctity of human life is a principle which stands higher than all others in the criminal law: Wilson v The Queen (1992) 174 CLR 313 at 341. 36 No mitigation of the offence was provided by the fact that the killing was of a vicious criminal who was himself a danger to society. The community no more tolerates his killing than it did his criminal behaviour. Even less does it tolerate the notion of gangland shooting, whether internecine or otherwise. On the other hand, it cannot be overlooked that it was Karam who encouraged the prisoners, all young men in their early twenties, to enter this milieu, and who helped to blunt their sensibilities to the real world. 37 In a case such as the present the duty of the sentencing Court is clear – it must impose sentences that are significantly punitive, but even more importantly, sentences that send a clear deterrent message. If anyone wishes to behave in this fashion, and to engage in any form of gangland warfare, particularly the crime of murder, then such person can only expect a condign sentence." 1. On appeal, this Court referred to his Honour's approach to sentence: Kanaan and Ors v R [2006] NSWCCA 109 at [2]: "In sentencing the appellants, Wood CJ at CL described the killing as a deliberate assassination carried out under the leadership of the appellant Kanaan, substantially to advance the interests of the appellants in ongoing criminal activities - an assassination motivated by greed, carried out with considerable pre-meditation, and callous and cold-blooded in character. He sentenced Kanaan to imprisonment for life, the appellant Mawas to imprisonment for 25 years with a non-parole period of 19 years, and the appellant El-Assaad to imprisonment for 24 years with a non-parole period of 18 years. Each of the appellants has appealed against his conviction." 1. The conviction appeals were dismissed and the sentence of one offender (El-Assaad) was reduced on appeal. 2. In R v Darwiche and Ors [2006] NSWSC 1167, Bell J (as her Honour then was) imposed life sentences upon three offenders (Darwiche, El-Zeyat and Aouad) found guilty of very serious gangland violence, including murder. In the course of sentencing Adnan Darwiche to life imprisonment, Bell J said at [38]: "The deaths of Ziad Razzak and Melissa Nemra were brought about by Adnan Darwiche's ruthless determination to assert his authority over the Razzak family. He was entirely indifferent to the loss of other human life in pursuit of his plan. The basis of his hostility to the Razzaks dates back to rivalry over drug dealing but by mid-2003 Adnan Darwiche had abandoned the business that had brought him into competition with the young Razzaks. He professed religious faith. Nonetheless his outlook on life remained that of a petty gang leader who wished to be seen as a person of consequence within the criminal milieu." 1. In the course of dismissing an appeal by El-Zeyat and Aouad against their life sentences, Simpson J (Leeming JA and Button J agreeing) said in El-Zeyat v R; Aouad v R; Osman v R [2015] NSWCCA 196 at [61]-[63]: "61 Her Honour was at pains, in the account of the relevant facts, to identify the participation of each of the applicants, as well as that of Darwiche. It is true that the measure of Darwiche's ruthlessness, his involvement in the preparatory stages of the crimes, and, indeed, his instigation of the crimes, can be seen as rendering his participation at a greater level of blameworthiness. It may also be true that, in contrast with Aouad and Osman, the evidence did not disclose early entry by El-Zeyat into the preparations. 62 Nevertheless, in terms of involvement, there is nothing to distinguish El-Zeyat's participation from that of Aouad. That they might have performed slightly different acts of participation is not to the point. Both willingly took part in the execution; both were armed and fired shots into the house. 63 It is, to me, a somewhat surprising proposition that a person taking part in a 'cold-blooded execution' is somehow less culpable because he is not motivated by personal animus towards the victims, or that he did so at the direction of another, and that he had no apparent motive. It is a proposition I would reject, in whole and as to each of its parts." 1. When considering Aouad's unsuccessful appeal against a sentence of life imprisonment, Simpson J said at [85]-[86]: "85 Finally, a number of matters said to be relevant to the assessment of the appropriate sentence were identified. These were: '(a) the applicant was only 22 years old at the time of the offence; (b) the applicant had a limited and fairly minor criminal history; (c) the applicant demonstrated a higher level of immaturity throughout the trial; (d) the Court was satisfied that the applicant was influenced by Darwiche; (e) the applicant was clearly acting at the direction of Adnan Darwiche; (f) there was no evidence to suggest that they were aware of Melissa Nemra's presence at the house that night, and (g) for the applicant, it was a single reckless and dangerous act that resulted in the death of two people.' 86 As to the matters listed as relevant sentencing factors in (a)-(e) of [85] above, each was taken into account by Bell J as part of her overall assessment. All were expressly recognised. That Aouad was unaware (if he was) of the presence of Ms Nemra at Lawford Street on that night is of no relevance. It is clear that the offenders were intent upon shooting and killing members of the Razzak family. I repeat the comment at [63] above. It is hardly a mitigating circumstance that Aouad was party to an enterprise the purpose of which was to shoot and kill, which resulted in the death of a person who he did not know was present in the house. And to characterise the event as 'a single reckless and dangerous act that resulted in the death of two people' is significantly to understate what the participants did. They set out with an intention of killing. That is not merely 'reckless' and 'dangerous'; it is, as Bell J said, an act of ruthlessness and great heinousness." 1. Against the background of statements of this type, it is understandable that imposition of sentences of life imprisonment was under close consideration by the sentencing Judge in this case with respect to Farhad Qaumi and Mumtaz Qaumi. The Subjective Cases of the Applicants 1. The sentencing Judge considered the subjective cases advanced with respect to each of the Applicants together with psychiatric or psychological evidence relied upon in that respect (ROS[73]-[100]). 2. His Honour introduced this topic in the following way (ROS[73]): "The offenders are brothers and parts of their personal cases are similar. Each of them has lived a life of dislocation and trauma. Their family is from Afghanistan and was forced to flee that country as a result of the military conflict, civil war and internal disruptions and persecutions in which that country was mired in the 1980s and 1990s. Their father was psychologically scarred as a consequence and this impacted on the boys' lives in various ways over many years. This background explains to some degree the paths that the offenders' lives took and provides a context in which their offending behaviour is to be evaluated. Their involvement in crime and willingness to resort to violence, particularly gun violence, cannot be divorced from their personal histories and exposure to such violence (either directly or vicariously) in their formative years. It is difficult for those fortunate to grow up in a peaceful society, largely unaffected by war and terrorism, to understand the impact on those whose lives have been damaged or destroyed by the scourge of systematic violence, brutality and dislocation." 1. His Honour then considered evidence with respect to each Applicant in some detail before returning to the relevance of the Applicants' subjective circumstances on sentence (ROS[101]): "While family and subjective circumstances such as those I have just described are extremely moving, it is important not to lose sight of the gravity of the offending in this case. The sad personal circumstances of the offenders and their families cannot lead the court to impose a sentence that is unduly disproportionate to the crimes. Also, it is important not to forget the impact of the crimes on the individual victims and on the community more generally. I have no doubt that the number and frequency of the shootings in late 2013 caused fear in the community and did violence to people's right to feel safe and secure as they go about their business. It is important then to record the impact on the victims and it is to that subject that I now turn." The Impact on the Victims 1. Hamill J then turned to the impact on the victims of the offences of the Applicants. His Honour commenced this part of his sentencing remarks in the following way (ROS[102]): "Many people's lives have been affected by the outlandish and lawless violence in which these three offenders were involved over a one to two month period in latter part of 2013. Two men are dead and it is pure good fortune that more people were not killed. Many people were exposed to the gangland and gun violence instigated by the offenders. In some cases, the impact of the offenders' conduct on the victims and their loved ones is devastating. In saying this, it must be remembered that Jamil Qaumi is not to be punished for the killing of Joseph Antoun and Farhad Qaumi is not responsible for those wounded in the Chokolatta Café shooting." 1. His Honour then recited victim impact statements made by family members of deceased victims and from surviving victims of the crimes of violence for which the Applicants were to be sentenced. His Honour explained the use to be made of the victim impact statements of family members of deceased victims. Application of Sentencing Principles 1. The sentencing Judge referred to the purposes of sentencing in s.3A Crimes (Sentencing Procedure) Act 1999 and then said (ROS[119]): "The weight to be given to these various purposes will vary from case to case and from offender to offender. In a case like this, involving gangland violence and homicide, general deterrence must play a significant role. The sentences imposed on these three men must send a clear message that those involved in gang violence will receive substantial punishment. Similarly, the offenders must be adequately punished and made accountable for their actions. Their conduct must be denounced. The protection of the community is important, and particularly so in the case of Farhad Qaumi in light of his criminal record and leadership of the BFL Blacktown. The harm done to the victims, and to the community, must be recognised. In view of the length of sentence that I am obliged to impose on Farhad and Mumtaz, it is difficult to see how any sentence that I could formulate would promote the rehabilitation of the two older brothers. The promotion of rehabilitation is a more significant factor in Jamil's case because he does not face the prospect of a sentence of life imprisonment and is still a young man." 1. His Honour then identified a number of aggravating and mitigating features of the offences to be taken into account for the purpose of s.21A Crimes (Sentencing Procedure) Act 1999. His Honour said (ROS[121]-[126]) (footnotes omitted): "121 In the present case, many of the offences are aggravated because they involved the use of a weapon. However, many offences of the kind charged against the offenders involve the use of a weapon and the matter ought not to be given undue weight as an aggravating feature. However, in assessing the totality of the criminality involved in this case, one of the most significant factors is the number of guns used, their ready availability and the offender's willingness to engage others to use them to carry out crimes of extreme violence. 122 Another significant aggravating factor arises in the offences that took place in peoples' homes (the Hamzy, Odisho and Zakaria shootings) and where the offences showed a disregard for the safety of the public (the Chokolatta Café shooting). Further, all of the offences were part of a planned and organised criminal activity. I have already referred to the approach that the Court must take to organised crime and gangland violence. 123 The foregoing is not an exhaustive list of aggravating features and the descriptions I have given of the offences should disclose the reasons I have formed the view as to the objective criminality of each of the offences. 124 The most compelling mitigating feature in relation to each of the offenders is not dealt with under s 21A(3). This concerns, in the case of Farhad and Mumtaz Qaumi, the offenders' personal history, their traumatic experiences in Afghanistan and the psychiatric impact this has had on each of them. It cannot be said that this meant that they were not 'fully aware of the consequences of their actions' [s 21A(3)(j)]. However, it is well accepted that a history such as this 'may mitigate the sentence that may otherwise be appropriate' because: '… a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending'. 125 This 'may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way' [(2013) 249 CLR 471; [2013] HCA 37 at [40]]. The passages I am quoting are from the High Court's decision in Bugmy v The Queen. The High Court was there dealing with an Aboriginal offender whose development was affected by a life of deprivation and exposure to alcohol abuse but the Court was clear in saying that the relevance of such matters was not determined by the ethnicity of the offender. 126 In Jamil Qaumi's case, his youth, lack of prior convictions, previous good character and prospects of rehabilitation are relevant mitigating factors. It is also the case that he was acting under the influence of his older brothers and was 'hyper vigilant' because of his exposure at a young age of a drive by shooting targeting his older brother." Parity and Proportionality 1. The sentencing Judge then turned to issues of parity and proportionality. It is especially appropriate to refer to what his Honour said in this respect given the issues raised by Farhad Qaumi (Ground 3) and Mumtaz Qaumi (Ground 5) concerning parity with respect to the sentence imposed upon a co-offender, NK, for the murder of Joseph Antoun. 2. The sentencing Judge said (ROS[127]-[134]) (footnotes omitted): "127 It is a fundamental principle of equal justice that offenders who are charged with offences arising out of the same factual circumstances should receive sentences which are proportionate to one another. The principle is not restricted to situations where the offenders are charged with the same offence. An offender should not be left with a 'justifiable sense of grievance' or seen to wear 'the badge of unfairness' as a result of disparity between the sentences that is not justified by relevant differences. 128 In the present case, the parties tendered a body of material to allow me to give effect to those principles. I have also considered the decisions in R v AC; AC v R [2017] NSWCCA 20 and R v MM; R v WK [2017] NSWCCA 19 in which the original sentencing judgments (contained in Ex S-B) were upheld on appeal. The Crown also provided a helpful table setting out the sentences imposed on co-offenders in relation to a number of the offences, the charges that each faced, the extent of any 'discount' for a guilty plea or assistance to authorities, the Form 1 offences taken into account in sentence and any other offence to which any particular offender pleaded guilty. 129 In two cases (Witnesses L and M), I was the sentencing judge while the remaining co-offenders (Witnesses C, D and I) were dealt with in the District Court. In many cases, the charges to which the co-offenders pleaded guilty were different (usually, but not always, less serious) than those for which the current offenders are to be sentenced. By way of example, Witness I was charged with discharging firearm with intent to cause grievous bodily harm in respect of the Odisho and Zakaria shootings, while the offenders are to be sentenced for soliciting murder in each case and attempted murder in the case of Odisho. Witness M was sentenced for accessory before the fact to the murder of Mahmoud Hamzy, whereas the offenders are to be sentenced for manslaughter. Witness L was sentenced for wounding with intent to cause grievous bodily harm in relation to the Hamzy shooting. 130 The differences in the charges gives rise to difficulties in the application of the parity principle but, as the High Court emphasised in Green v The Queen; Quinn v The Queen, equal justice requires that the sentence imposed on each of the co-offenders be considered carefully to ensure that the sentences imposed on the Qaumi brothers are proportionate and do not leave them with a justifiable sense of grievance. 131 Apart from the different charges, there are also significant differences in the personal case of each offender and in their criminal histories. All of the co-offenders received reductions for their pleas and assistance and I have considered the 'starting point' in applying the parity principle and in determining the appropriate sentence for the three offenders in respect of any offence where a co-offender has already been sentenced. Where an aggregate sentence was imposed on the co-offender, I have considered the 'indicative sentence' nominated by the sentencing Judge under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act. 132 All of the sentences imposed on the co-offenders are significant to the proper exercise of the sentencing discretion, but the most significant to my mind are the sentences imposed on Witness M for her involvement in the Hamzy shooting and Witness L for his involvement in both the Hamzy shooting and the Antoun murder. 133 I have applied the principles of parity and proportionality in sentencing the offenders. I have considered the sentences imposed on the co-offenders. I have also considered a comparison of the sentences as between the three brothers themselves to ensure that there is equal (or proportionate) justice between them and that none of them is left with a justifiable sense of grievance. 134 As between the three brothers, and speaking generally rather than in relation to any particular offence, principles of equal justice require the total sentencing outcome for Farhad to be more punitive than that of his brothers. That is because he was the undisputed and greatly feared leader of the gang. He also has a worse criminal history and, in spite of his sympathetic personal history, there is nothing in the evidence in his case that allows for a positive finding in relation to rehabilitation. The sentence he receives must be calculated to protect the community from the kind of violence that he and his gang unleashed during the last two months of 2013. Again, because of his youth and relatively unblemished criminal history, Jamil Qaumi can expect to receive a sentence of shorter duration than that imposed on his brothers. Within the different offences, different considerations apply. For example, Jamil and Farhad offered to plead guilty to the manslaughter of Mahmoud Hamzy and the sentence they receive will reflect that. Jamil asked for serious offences to be taken into account in sentencing for the manslaughter and that will increase the weight given to retribution and specific deterrence in relation to that charge. While the offenders were acting together, Mumtaz Qaumi was far less active in the preparations for the Zakaria shooting, a fact reflected in the jury's verdicts. The individual sentences must reflect these differences." Use of Aggregate Sentencing 1. The sentencing Judge addressed in general terms issues of totality, concurrence and accumulation and indicated an intention to utilise aggregate sentencing with respect to each of the Applicants with the exception of the contempt charges against Mumtaz Qaumi and Jamil Qaumi. 2. His Honour said (ROS[140]) (footnotes omitted): "Because an aggregate sentence is to be imposed, it is not necessary to indicate the degree to which I would have accumulated, or to indicate the method of staggering the commencement dates in order to achieve an appropriate balance between cumulation and concurrence. However, all of the offences are serious and the imposition of an aggregate sentence 'is not to be used to minimise the offending conduct, or obscure or obliterate the range of offending conduct or its totality'. What must ultimately be achieved is an aggregate sentence commensurate with the totality of the criminality in each offender's case. In relation to the offences targeting the BFL Bankstown, it will be born in mind that the offenders are charged with a number of offences that took place over a period of around a week and that, in some instances, they are charged with more than one offence arising out of the same criminal enterprise. For example, count 4 (soliciting the murder of Michael Odisho) comprises more or less the same acts as count 5 (intent to murder Michael Odisho). The same applies with respect to a number of firearms offences. If individual sentences were imposed for those two counts, it would be expected that there would be a large degree of concurrency and some degree of accumulation. All of these matters must be taken into account in determining the appropriate aggregate sentence for what is a most serious series of criminal offences." Some Other Issues Affecting the Sentences 1. His Honour indicated an intention to apply a discount of about 10% with respect to the indicative sentence for the manslaughter of Mahmoud Hamzy when sentencing Farhad Qaumi and Jamil Qaumi because of their offers to plead guilty to manslaughter at a time prior to trial (ROS[141]-[144]). 2. His Honour then explained his selection of commencement dates for the purpose of the sentencing of each Applicant, an aspect which was not challenged in this Court and need not be repeated. 3. The sentencing Judge then addressed evidence concerning the conditions of incarceration of each of the Applicants (ROS[148]-[168]) before expressing the following conclusion (ROS[169]) (footnotes omitted): "I accept it is appropriate to take into account the conditions of custody that have prevailed while the offenders have been on remand. It is not possible to determine how long into the future these conditions, or similar conditions, will prevail although I accept the submission that their status as high-risk management prisoners is unlikely 'to change any time soon'. Accordingly, I propose to give the matter some weight in the assessment of an appropriate sentence. In the case of Jamil Qaumi, it is one matter that I consider on the question of whether there are 'special circumstances' warranting an adjustment of the non-parole period. In the case of Farhad and Mumtaz Qaumi, it is a factor, albeit a minor factor in the scheme of things, in determining the question of whether a life sentence is warranted in accordance with the terms of s 61(1). It will be important not to 'double count' the matter as a 'special circumstance' if it is taken into account in determining the total sentence." Sentencing of Jamil Qaumi 1. The sentencing Judge noted a Crown submission that the maximum penalty was appropriate with respect to a number of Jamil Qaumi's offences. With respect to this submission (which was rejected), and before moving to sentence Jamil Qaumi, his Honour said (ROS[172]-[175]) (footnotes omitted): 172 "For example, the Crown submitted it would be open to impose the maximum penalty on all offenders in relation to the offence of conspiracy to murder Mahmoud Hamzy. However, in relation to that offence there is a strong, objective and mitigating feature inherent in the jury's verdicts. That conspiracy was entered in circumstances where each of the offenders believed it was necessary to kill Mohammed Hamzy in order to protect the life of Farhad Qaumi. The jury asked a question in the course of its deliberation as to whether the law of self-defence applicable to murder applied to this count. The answer was 'no'. This question must be considered in the light of the verdict on count 1 in which the jury did not find the first limb of self-defence negatived beyond reasonable doubt. In those circumstances, it is difficult to see how the Court would be justified in imposing the maximum penalty. 173 In relation to the shooting offences at the Odisho and Zakaria homes, while the suggestion of self-defence was untenable, I do accept on balance that the offenders were motivated to a degree by their fear that members of the BFL Bankstown were motivated to seek revenge on them for the Hamzy shooting. That shooting, it must be recalled, occurred in the context that the BFL Blacktown had information that there was a plot to kill Farhad Qaumi. The same cannot be said of the Chokolatta Café shooting. There was nothing that would justify that shooting, even in the eyes of those who carried it out. Farhad himself had excluded the target, Abu-Mahmoud, from the 'hit list'. 174 In the case of Jamil Qaumi, his subjective case is such that he is not an appropriate vehicle for the imposition of the maximum penalty. He was only 21 years old at the time of the offending. He had a minimal criminal history, was newlywed and was acting under the influence of, and for the protection of his older brother, Farhad. His experience of an earlier drive-by shooting in which Farhad was targeted created the kind of paranoid response described by the psychologist and his sister. 175 Even accepting all of those things and giving them a great deal of weight, the individual indicative sentences and the aggregate sentence imposed must reflect the wanton lawlessness and callousness in Jamil Qaumi's outlandish behaviour." 1. His Honour then proceeded to nominate the indicative sentences referred to earlier (at [343]) and also noted an assessment of the objective seriousness of offences to which standard non-parole periods applied as set out earlier with respect to each group of offences. 2. His Honour then proceeded to sentence Jamil Qaumi in the manner indicated earlier in this judgment (at [342]). Consideration of Sentences of Life Imprisonment 1. Before moving to sentence Farhad Qaumi and Mumtaz Qaumi, his Honour considered the principles bearing upon the question of imposition of a sentence of life imprisonment under s.61 Crimes (Sentencing Procedure) Act 1999. It is appropriate to set out part of what his Honour said in this respect as it bears upon several grounds, including the parity grounds of Farhad Qaumi and Mumtaz Qaumi based upon a comparison with the sentence imposed upon NK (referred to as Witness L). The sentencing Judge said (ROS[194]-[198]): "194 In R v Adams (No 7) [2017] NSWSC 179 at [53]], Button J identified a number of features of cases that have attracted life sentences. These included cases of multiple murders, cases featuring 'some exceptional heinous act of cruelty, torture or mutilation' and, relevantly, 'a cold blooded contract killing.' 195 The Antoun murder fits squarely into the last category identified by Button J. However, there have been cases of contract killings where life sentences were not imposed. [See, for example, R v Burnes [2007] NSWCCA 53 (Fullerton J, starting point 36 years); May v R [2012] NSWCCA 111 (Kirby J, 36 years); R v Suteski (2002) 56 NSWLR 182 (Kirby J, 22 years); R v Ryan & Coulter [2011] NSWSC 1249 (Latham J, 36 years and 27 years respectively)]. To those cases can be added R v NK (No 3), Mr Antoun's actual assassin (Witness L). In that case, I indicated a putative starting point of 35 years. The sentence imposed on Witness L is also relevant to the question of parity. 196 None of those cases are completely comparable to the present case and the assistance that can be gleaned by other sentencing outcomes is limited. Each case must turn on its own facts. There are very few (if any) examples of cases involving a contract killing taking place in the aftermath of a spate of shootings arising out of a gangland war. Equally, the kinds of matters raised in the subjective cases are unusual. 197 One question that arose in the course of submissions was whether the offender's criminal history, and the fact that they stand to be sentenced for other grave offences, can properly inform the operation of s 61(1). Senior Counsel submitted that those matters could not be taken into account and that to do so would be to elevate the criminality of the particular offence attracting a life sentence. I am unable to accept this submission. I accept that the earlier offences (whether they be part of the criminal history or matters in which guilt was determined by the jury) do not impact on an assessment of the objective criminality of the Antoun murder. However, in assessing the 'community interest' for the purpose of s 61, they are relevant in particular (but not only) in terms of the community interest in 'community protection'. The submission advanced appears to be at odds with the submission that subjective matters (such as Farhad's post-traumatic stress disorder and Mumtaz's anxiety disorder) can properly be taken into account under s 61(1) in a one stage, intuitive process. 198 For the sake of transparency, I make it clear that I have taken all matters into account in making the decisions under s 61(1) in each case. I have not elevated or aggravated the assessment of the objective criminality of the Antoun murder by reference to the earlier offences. Section 61(1) is only engaged by reference to the extremity of 'the level of culpability in the commission of the offence'. However, I have taken those matters into account in deciding whether the community interest in the four identified purposes of punishment can only be met by the imposition of a life sentence. Equally, in making that assessment, I have taken into account the psychiatric evidence, the evidence of the offender's dislocated and traumatic childhood and other matters favourable to the offenders. Another important consideration is the imposition of a determinate sentence (with an indicative starting point of 35 years) on the shooter, Witness L." 1. It should be kept in mind when considering the parity grounds advanced by Farhad Qaumi and Mumtaz Qaumi, that the sentence imposed upon NK for the murder of Joseph Antoun operated as a factor which assisted the discretionary determination that a life sentence would not be imposed upon Farhad Qaumi and Mumtaz Qaumi. Sentencing of Mumtaz Qaumi 1. Before moving to sentence Mumtaz Qaumi, his Honour made the following findings (ROS[199]): "I am not satisfied that the maximum penalty is appropriate for any of the offences charged against Mumtaz Qaumi. In relation to the murder of Joseph Antoun, and in spite of the extreme level of culpability, I am not satisfied the only sentence capable of meeting the community interest in retribution, punishment, community protection and deterrence, is a sentence of life imprisonment. My reasons for these conclusions revolve around the offender's subjective case, the details of which I have set out in a little detail in the course of this judgment. He has a wife and infant children who remain supportive and he is not without some hope for rehabilitation. Also, it is relevant in reaching the determination under s 61 that the shooter was sentenced to a determinate sentence. That raises a question of equal justice and proportionality. For those reasons, I am not satisfied that a life sentence is mandatory and I propose to impose a determinate sentence. However, the reality is that the length of the aggregate sentence that must be imposed may ultimately prove to be an effective life sentence [Barton v R [2009] NSWCCA 164 at [16]-[17]]. The sentence that I will impose will mean that he will not be eligible for release to parole until he is in his mid-sixties. But the sentence will provide Mumtaz Qaumi with some hope that he may be released at the expiration of the non-parole period." 1. His Honour explained that findings would be made concerning the objective seriousness of offences which carried standard non-parole periods and noted how the indicative sentences would compare with those imposed on Jamil Qaumi. His Honour said (ROS[201]): "For the most part, the indicative sentences are similar to those imposed on Jamil Qaumi. Some of the sentences are slightly longer for reasons that are apparent from the things I have said in the judgment. In the case of the Zakaria shooting, the indicative sentence is shorter because of the lesser role played by Mumtaz Qaumi in the lead up to that shooting." 1. When nominating the indicative sentence for the murder of Joseph Antoun, his Honour noted that the total sentence was three years more than the indicative starting point for NK (ROS[201]). 2. His Honour then proceeded to pass the sentences concerning Mumtaz Qaumi as noted earlier in this judgment. Sentencing of Farhad Qaumi 1. Hamill J noted that principles of proportionality meant that Mumtaz Qaumi and Jamil Qaumi must receive a less severe sentence than Farhad Qaumi. His Honour explained this aspect, and gathered together other features, before moving to sentence Farhad Qaumi (ROS[206]-[214]) (footnotes omitted): "206 There are several reasons for this. The first is the fact that his criminal history is worse. However, the main distinguishing feature is the role Farhad played in the group. The evidence given by various of the informants, and some of the recordings tendered in evidence, leaves no doubt that Farhad was the undisputed, and feared, leader of the BFL Blacktown. It was his decision to organise the attempted assassination of Mohammed Hamzy and his decision to target a number of other members of the BFL Bankstown in the aftermath of that shooting. There seems to be little doubt that Farhad's reputation for violence, and his capacity to direct others to carry out shootings on his behalf, is what led those plotting against Joseph Antoun to approach the BFL Blacktown. It was Farhad who was feted (and then shot at) on the Oscar II motor vessel. It was Farhad who Les Elias and Pasquale Barbaro socialised with in the aftermath of the Antoun murder. More often than not, he used others to do his bidding. This included his young cousin (Witness K), his twenty one year old brother (Jamil) and the young and vulnerable Witness D. Some of the evidence established that he also had Mumtaz making calls and organising things on his behalf. This included the attempts toward the end of 2013 to obtain the bag containing the drugs subject of count 20 and the guns subject of counts 21 and 22. There was evidence that he aspired to 'take over Sydney'. While there was an element of grandiosity in such statements, it is clear that Farhad Qaumi's ambition was to expand his criminal empire, the core businesses of which were the distribution of drugs, extortion and, upon his acceptance of the contract to kill Joseph Antoun, contract killing. 207 As I evaluate the material, and putting aside (as I must) the philosophical question of whether such a sentence should ever be imposed, there are three matters that militate against the imposition of a life sentence. First, Farhad's personal history of dislocation and trauma as a child growing up in war torn Afghanistan, explains to a very large degree how he came to resort with such apparent readiness to violence, and in particular gun violence. Second, the imposition of determinate sentences on Mumtaz Qaumi and Witness L may give rise to unreasonable disparity if a life sentence is imposed on Farhad. Third, the evidence of the harsh conditions of custody, and the absence of evidence that these are likely to be ameliorated in the near future, means that a life sentence will weigh more heavily upon this particular offender. I have considered those three matters closely along with the extreme culpability involved in the cold blooded murder of Joseph Antoun for money. 208 The history of trauma and its psychological impact on the offender cuts two ways in the present case. While it may diminish the weight to be afforded to general deterrence and impact on an assessment of moral culpability, it heightens the need for the protection of the community. There is no evidence before the Court that would justify a finding that Farhad Qaumi has any reasonable prospect of rehabilitation in the short term. However, the kind of determinate sentence that would be imposed would involve a total term that would not expire until he is in his late eighties or early nineties and a non-parole period that would not expire until he was in his mid to late seventies. Whether he is released at that time, and under what conditions of parole, would turn on an assessment of the danger he represented to the community. For those reasons, while recognising the danger to the community that Farhad currently represents, I [am] satisfied that the community interest in the protection of the community can be met by an extremely long determinate sentence. 209 As to the question of parity, the different criminal histories and Farhad Qaumi's leadership role are significant differences that justify a far greater sentence than that imposed on his co-accused. However, the fact that both the shooter and Mumtaz Qaumi were sentenced to determinate sentences is a matter that militates against a finding that the only way the community interest can be met is by the imposition of a life sentence. 210 The conditions of incarceration are a matter of concern but the evidence on that subject is such that it is impossible to predict how far into the future his incarceration will remain as onerous as it is today. As I have said, I give the matter some weight but I am not satisfied that this matter, by itself, would result in a finding that the prerequisites in section 61 are not satisfied. 211 Against those matters, I have considered the criminal history of the offender, the spate of earlier shootings in relation to which his guilt was determined by the jury in November last year and the extreme criminality involved in organising the contract killing of another human being. 212 I return to Farhad Qaumi's personal history. I have already referred to this but I should revisit it to explain the decision to which I have come. The evidence of his mother and sister corroborates the history in Dr Eagle's report. The history was largely consistent with the material described by the Court of Criminal Appeal in 1998. He was exposed to extraordinary trauma as a child growing up in Afghanistan. Not many people living in the comfort of Australia could have any real comprehension of this. His school was bombed and his teacher and best friend were killed. The family fled the violence, lived for a while as refugees in India and ended up in Australia. However, his father (himself traumatised by events in Afghanistan) was violent, hitting his oldest son with a belt or a wire. I have no doubt that these experiences had a major impact on Farhad Qaumi's development and desensitised him to violence. I accept Dr Eagle's diagnosis of post-traumatic stress disorder and that his 'experience of trauma has altered his perspective of the world, such that he sees the world as an unsafe and terrifying place.' I accept Dr Eagle's opinion that: 'This has resulted in persistent feelings of fear and anger that have resulted in hyper-vigilance and aggression. In order to avoid these feelings, he has used substances. The trajectory of his life suggests that, as a result of his experiences, he appears to have become caught in a cycle of violence and criminal behaviour.' 213 In Bugmy v The Queen, the High Court recognised that 'social disadvantage … frequently … precedes the commission of crime.' The same must be true of the kind of exposure to war, violence and dislocation suffered by Farhad Qaumi. These matters, and their psychiatric impact, diminish the offender's culpability. It is relevant to an assessment of the 'level of culpability' referred to in s 61(1). 214 In spite of the extreme nature of the criminality involved in the killing of Mr Antoun – considered along with Farhad's criminal history, leadership of a violent criminal gang and the spate of shooting offences in 2013 – the personal background, parity issue and conditions of incarceration, satisfy me that imposing a sentence of life imprisonment is not the only way that the community interest can be met. However, the determinate aggregate sentence that will be imposed will mean that he will be around 75 years of age before he is even eligible for release to parole. At that time, he will only be released if it is determined that he no longer represents a danger to the community. I am conscious that this may represent an effective life sentence, and have made a slight adjustment to the non-parole period as a result, but the criminality is such that no lesser aggregate sentence or non-parole period can be justified. I am satisfied that the community interest in retribution, punishment, community protection and deterrence can be met by the aggregate sentence that I will presently impose." 1. The sentencing Judge then made findings of objective seriousness with respect to the standard non-parole period offences (as set out earlier concerning each group of offences) noting that, because of his leadership role, Farhad Qaumi's criminality is higher than that of his brothers in each offence with this being reflected in the individual sentences and in the aggregate sentences. 2. For the purpose of determining the aggregate sentence, his Honour made a finding of special circumstances concerning Farhad Qaumi (ROS[216]): "I find special circumstances in the fact that by the expiration of the non-parole period, the offender will be in his mid to late seventies and that a failure to make some slight adjustment will convert a determinate sentence into an effective life sentence. I have reduced the non-parole period by only 2 years. I have concluded that the totality of criminality cannot result in an aggregate non-parole period of any shorter duration. The length of the aggregate balance of parole is ample to foster Farhad Qaumi's reintegration into the community if the relevant authorities allow him to be released on parole." Consequence of Acquittal of Farhad Qaumi and Mumtaz Qaumi on Certain Counts 1. Because Farhad Qaumi (Count 18) and Mumtaz Qaumi (Counts 9 and 18) have had limited success on their conviction appeals, it will be necessary to reconsider the question of sentence in their cases without regard to the offences for which each is to be acquitted. In these circumstances, it is not strictly necessary to consider their other grounds of appeal on sentence. 2. However, several of the sentence grounds advanced by Farhad Qaumi and Mumtaz Qaumi should be considered in case any is upheld as such a finding would affect the task of this Court on resentencing. 3. Jamil Qaumi has not succeeded on any conviction ground so that his appeal will require the Court to consider his grounds of appeal on sentence. Grounds of Appeal Concerning Inappropriate References to the Standard Non-Parole Period in Nominating Indicative Sentences (Farhad Qaumi Ground 2; Mumtaz Qaumi Ground 4; Jamil Qaumi Ground 4) 1. It is common ground that Hamill J referred to either incorrect or non-existent standard non-parole periods in nominating indicative sentences with respect to Counts 18, 19, 21 and 22 on the first indictment and Count 2 on the second indictment. 2. The aggregate sentence for Farhad Qaumi included indicative sentences for Counts 18, 19, 21 and 22 on the first indictment and Count 2 on the second indictment. The aggregate sentence for Mumtaz Qaumi included indicative sentences for Counts 18, 21 and 22. The aggregate sentence for Jamil Qaumi involved indicative sentences for Counts 21 and 22. 3. This state of affairs came about as the Crown and the legal representatives for the Applicants failed to provide Hamill J with accurate information with respect to standard non-parole periods for these offences. It is unfortunate, but understandable, that the Court proceeded to refer to the agreed standard non-parole periods for the purpose of sentencing for what were (in relative terms) lesser offences in this very complex case. 4. The differences between the erroneous information provided to his Honour concerning standard non-parole periods and the true position was summarised in the tables contained earlier in this judgment with respect to each Applicant (at [337], [340] and [343]). 5. Count 18 (which concerned Farhad Qaumi and Mumtaz Qaumi) was said to have a standard non-parole period of six years when there was not, in fact, any standard non-parole period applicable to this offence at the time of the offence. It will be apparent immediately that this aspect falls away for the purpose of resentencing as each of Farhad Qaumi and Mumtaz Qaumi is to be acquitted of that offence. Nevertheless, an error occurred concerning this offence at first instance which bears upon the sentencing of each of those Applicants. 6. For each of Counts 19, 21, and 22 in the first indictment and Count 2 in the second indictment, being firearms offences under s.7(1) Firearms Act 1996, the standard non-parole period at the time of the offences was three years, but his Honour was misinformed and took into account a standard non-parole period of four years instead. These errors relate to offences committed by one or other of the Applicants and thus concern each of the Applicants. Submissions of the Parties 1. It was submitted for the Applicants that his Honour took into account an erroneous standard non-parole period in nominating indicative sentences for these offences, which included a head sentence and non-parole period as required by ss.53A(2) and 54B(4) Crimes (Sentencing Procedure) Act 1999 and that, in doing so, his Honour had regard to an erroneous consideration which infected the indicative sentences for these offences and thus the aggregate sentence. Reliance was placed upon Portelli v R [2018] NSWCCA 28 at [40] in support of the argument that this constituted error which should lead the Court to resentence each Applicant in accordance with s.6(3) Criminal Appeal Act 1912 and Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. 2. The Crown acknowledged that these errors had been made, but submitted that they did not have a material bearing upon the assessment of the aggregate sentence: Battersby v R [2018] NSWCCA 141 at [34]-[38]. The Crown relied upon AB v R [2014] NSWCCA 31 in support of the submission that the misstatement of the standard non-parole periods had no material bearing upon the assessment of the aggregate sentence so that it was not necessary for the Court to resentence the Applicants in accordance with Kentwell v The Queen. Decision 1. The appeal on sentence with respect to each Applicant relates to the aggregate sentence imposed and not the indicative sentences. That said, if error is identifiable with respect to indicative sentences, such an error may be capable of affecting the aggregate sentence. Although the offences which are affected by this error were of lesser gravity than other very serious offences (in which the firearms were used) for which the Applicants were to be sentenced as part of the aggregate sentence, the firearms offences themselves were not minor. 2. A similar error to the present ones occurred in Sutton v R [2016] NSWCCA 249 where the sentencing Judge was misinformed by the parties as to the applicable standard non-parole period for an offence under s.7(1) Firearms Act 1996. Gleeson JA (Fagan and N Adams JJ agreeing) distinguished AB v R and found error which called for the Court to move to resentence the Applicant, although the Court concluded that no lesser sentence was warranted so that the appeal was dismissed. 3. This Court should find error and consider the question of resentencing as occurred in Sutton v R. 4. I am satisfied that error has been demonstrated in accordance with these grounds of appeal. By having regard to erroneous standard non-parole periods with respect to several offences, his Honour has had regard to an irrelevant consideration so as to constitute error in accordance with the principles in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. A standard non-parole period is a legislative guidepost which a sentencing court is required to take into account on sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. 5. A consequence of these errors is that the Court should move to exercise its independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed: s.6(3) Criminal Appeal Act 1912; Kentwell v The Queen at [43]. 6. A similar approach was adopted by this Court in Maxwell v R [2020] NSWCCA 94 (at [80]-[83]) where error occurred arising from use of erroneous or non-existent standard non-parole periods on sentence. 7. The course to be adopted by the Court was summarised in Maxwell v R where, with the concurrence of Adamson and Bellew JJ, I said at [103]-[107]: "103 The indicative sentences are not themselves amenable to appeal, although they may be a guide as to whether error is established in the aggregate sentence: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40](11). 104 In the present case, express error is demonstrated with respect to three of the indicative sentences in a manner which leads to a conclusion that error is established in the aggregate sentence. 105 The approach to be adopted by this Court, in exercising its function under s.6(3) Criminal Appeal Act 1912, has been considered in a number of decisions. In RO v R [2019] NSWCCA 183, Beech-Jones J (Bathurst CJ agreeing; N Adams J agreeing in additional reasons) considered the authorities and said at [87]-[89]: '87 Consistent with this, it is common in this Court in cases where s 6(3) is invoked to dismiss an appeal against sentence not to specify the more severe sentence that was warranted in law (see for example Porter v R [2019] NSWCCA 117 at [92] (R A Hulme J); Stavropoulos v R [2018] NSWCCA 12 at [31] (Hoeben CJ at CL); Nye v R [2018] NSWCCA 244 at [83] (Button J); Gilmour v R [2018] NSWCCA 295 at [82] (Johnson J); Clinton v R [2018] NSWCCA 66 at [53]‑[55] (Schmidt J)). 88 However, in Turnbull at [57] to [63], Simpson AJA applied s 6(3) by specifying the sentences that her Honour would have imposed if exercising the sentencing discretion afresh, which were higher than those imposed by the sentencing judge, before dismissing the appeal. Her Honour did not refer to Gal or explain why it was necessary to specify the sentence that would have been imposed. 89 The end result is that the approach of this Court to re‑sentencing is to be undertaken in a manner consistent with what is stated in Turnbull above (at [81]), ie, by putting aside the sentence imposed at first instance. In undertaking that exercise, if the Court concludes that a greater sentence is warranted then it is not obliged to specify what the sentence was but may instead simply dismiss the appeal (Gal; O'Grady) although it may decide to specify the sentence that was warranted (Turnbull). For my part, in light of the observations in Gal, I consider that the Court should only take the latter course if some particular circumstance warrants it. One possible such circumstance appears to follow from the emphasised statement in the above passage from Kentwell, namely where the Court is considering the application of s 6(3) to an aggregate sentence. That passage appears to contemplate that, at least in some cases, the Court may need to identify the particular indicative sentence that is warranted for each offence prior to the Court forming a conclusion about whether an aggregate sentence that it considers is warranted in law is more (or less) severe than the aggregate sentence the subject of the appeal.' 106 In accordance with what was said in RO v R at [89], in a case such as the present one, the Court: (a) should put aside the sentence imposed at first instance; (b) should identify the particular indicative sentences which are warranted for each of the offences; (c) should then form a conclusion about whether the aggregate sentence that is warranted in law is more (or less) severe than the aggregate sentence which is the subject of the appeal; (d) need not announce the aggregate sentence if the aggregate sentence which is warranted in law is more severe - the Court can state that a less severe aggregate sentence is not warranted in law and then proceed to dismiss the appeal; (e) should, only if the Court determines that a less severe aggregate sentence is warranted in law, proceed to state the new aggregate sentence and then resentence the Applicant accordingly. 107 The Court should state the indicative sentences to be nominated for all 17 offences as part of the process of determining whether a lesser aggregate sentence is warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912." 1. In undertaking this task however, the Court may utilise the findings and indicative sentences nominated by Hamill J with respect to other offences unless another sentence ground is made good in that respect. This was the approach which the parties invited the Court to take if the present grounds of appeal were upheld (T21-24, 36-37, 44-45, 30 October 2019; T27-31, 36-37, 31 October 2019). 2. Each of these grounds of appeal should be upheld. 3. The errors in these grounds relate to discrete indicative sentences for certain matters only and the task for the Court is to determine whether, taking into account the correct standard non-parole period, a lesser aggregate sentence is warranted for each Applicant. 4. The fact that these grounds of appeal have been upheld means that Jamil Qaumi is also entitled to have the Court exercise its resentencing function under s.6(3) Criminal Appeal Act 1912. The fact that Farhad Qaumi and Mumtaz Qaumi are to be acquitted on some counts which made up their aggregate sentences means that the Court must exercise the s.6(3) function concerning each of them. Other Grounds of Appeal 1. As noted earlier, although it is necessary for the Court to exercise its independent sentencing discretion with respect to each Applicant as error has now been demonstrated with respect to each of them, and as a consequence of the acquittal of Farhad Qaumi (on Count 18) and Mumtaz Qaumi (on Counts 9 and 18), it is helpful to consider the remaining grounds of appeal (apart from the claim of manifest excess) as those issues are relevant to the resentencing of the Applicants. Grounds Asserting Disparity Between the Sentence of Farhad Qaumi and Mumtaz Qaumi and that Imposed on NK for the Murder of Joseph Antoun (Farhad Qaumi Ground 3; Mumtaz Qaumi Ground 5) 1. These grounds of appeal concern Farhad Qaumi and Mumtaz Qaumi only as they relate to the indicative sentences nominated for the Antoun murder for which each of those Applicants was found guilty. Submissions of the Parties 1. The submissions in support of these grounds invited comparison with the sentence imposed upon the co-offender, NK, by Hamill J: R v NK (No. 3) [2015] NSWSC 1257. After a discount of 60% for assistance and his plea of guilty, NK was sentenced to an aggregate sentence of imprisonment for 21 years with a non-parole period of 15 years and nine months. It was noted that the starting point for NK in relation to the indicative sentence for the Antoun murder was 35 years and that, after a 60% reduction, the indicative sentence for that offence was 14 years' imprisonment with a non-parole period of 10 years and six months: R v NK (No. 3) at [147]. 2. Farhad Qaumi had an indicative sentence nominated for the Antoun murder of imprisonment for 45 years with a non-parole period of 33 years and nine months. Mumtaz Qaumi had an indicative sentence nominated for the Antoun murder of imprisonment for 38 years with a non-parole period of 26 years. 3. In sentencing NK, Hamill J referred (at [49]) to R v Burnes [2007] NSWSC 298 and R v May (No. 7) [2008] NSWSC 971 being other cases where a murder took place at the request of other persons to remove a competitor. 4. In support of these grounds of appeal, reference was made to other decisions which were said to be cases illustrating sentences imposed upon a contractor or urger to commit a murder as opposed to the sentences imposed on the actual killer. These cases were R v Ryan and Coulter [2011] NSWSC 1249, R v Brooks [2012] NSWSC 505, R v Clark [2007] NSWSC 954 and R v Clark (No. 3) [2008] NSWSC 795. Hamill J referred to a number of cases, including R v Ryan and Coulter when sentencing the Applicants (see [ROS[195] at [97] above). 5. It was submitted by reference to these other cases that disparity was demonstrated in the sentences imposed upon NK (the killer) and Farhad Qaumi and Mumtaz Qaumi (the urgers or organisers). 6. It was submitted for Farhad Qaumi and Mumtaz Qaumi that each was left with a legitimate sense of grievance arising from the differences between the sentences imposed on NK for the Antoun murder. 7. The Crown submitted that there were significant differences between the cases of the three men which served to explain the different indicative sentences. In particular, reference was made to Hamill J's finding that NK was acting under a level of duress so that the objective seriousness of his offence was reduced: Giang v R [2017] NSWCCA 25. The Crown submitted that the same sentencing Judge sentenced each of the offenders by reference to findings made at different sentencing hearings and that these grounds of appeal should be rejected. Decision 1. In assessing a ground of appeal asserting disparity, it is important to keep in mind that the same Judge sentenced all offenders against the background of findings of fact made in the different proceedings leading to those sentences: Tuivaga v R [2015] NSWCCA 145 at [55]-[56]. His Honour was well aware of considerations of parity when he came to sentence the present Applicants (see ROS[127]-[134] at [408] above). 2. It is necessary for the Court to have regard to points of similarity or difference between the offenders for the purpose of assessing the parity ground. It should be kept in mind that an objective test is to be applied with respect to the existence of a legitimate grievance arising from the imposition of different sentences. The Court is not concerned with whether the Applicants feel a sense of grievance (a subjective test), but rather whether any disparity between sentences engenders a justifiable sense of grievance and an appearance of injustice to "that impassive representative of the community, the objective bystander": Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 613 (Mason J); Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 474-475 [31] (French CJ, Crennan and Kiefel JJ). 3. R A Hulme J (Wilson J agreeing) said in Chamon v R [2020] NSWCCA 112 at [35]-[37]: "35 This Court has observed that 'considerable obstacles' are placed before an applicant contending error on a parity basis where a sentencing judge is fully aware of the sentences imposed upon co-offenders and the reasons for those sentences, and provides reasons for departing from those sentences: Tatana v R [2006] NSWCCA 398 at [28] (Howie J, Sully and Latham JJ agreeing). 36 In Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [173], this Court implicitly endorsed a proposition that it will be cautious and not overly willing to intervene where the same judge sentenced an appellant and the co-offender, recognised the importance of the parity principle and gave effect to it. 37 In Lloyd v R [2017] NSWCCA 303, I observed (at [95]), with the agreement of Payne JA and Garling J, that a differentiation between sentences imposed upon co-offenders was a discretionary assessment by the judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise. That observation is apposite in the present case. I went on to say (at [96]-[97]: 'It is a basic principle of appellate review of sentencing that 'there is no single correct sentence' and 'judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies': Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ). That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise. In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?'" 1. Hamill J sentenced each of NK, Farhad Qaumi and Mumtaz Qaumi. NK was dealt with at an earlier sentencing hearing where his Honour made findings by reference to the evidence adduced at that hearing. 2. In Rae v R [2011] NSWCCA 211, with the concurrence of McClellan CJ at CL and Hidden J, I said at [54]: "Where co-offenders are dealt with separately, there may be differences in the substratum of facts upon which the different sentencing Judges act and the impressions formed by them with respect to the relative roles, levels of responsibility and prospects of rehabilitation of the individuals involved, with this flowing in part from the different emphases which can be expected to be placed on aspects of the offending behaviour and the circumstances of the offenders: R v Rodden [2005] VSCA 24 at [28]; Dwayhi at [38]." 1. Different findings may be made concerning offenders at different hearings by reference to the evidence adduced at the hearing and this may serve to explain any difference in outcome: R v Chandler; Chandler v R [2012] NSWCCA 135 at [4]-[5] (Basten JA), [80]-[81] (Hoeben JA). 2. When sentencing NK, Hamill J said at R v NK (No. 3) at [1]-[2] (my emphasis): "1 At about 9:30 on the evening of 16 December 2013 Joseph Antoun was shot dead in his home in front of the woman he planned to marry and in close proximity to the couple's twin 6 year old daughters. This tragic and despicable event was the execution of a contract which had been taken out on the life of Mr Antoun. The motivation of the person who took out the contract is not known to me but that person agreed to pay the sum of $200,000 to Farhad and Mumtaz Qaumi who were, at the time, the leaders of a criminal group known as the Brothers for Life Blacktown Chapter (BFL Blacktown). 2 Neither Farhad nor Mumtaz Qaumi were present at the time of the shooting. Rather, they arranged for one of the members of BFL Blacktown to carry out the execution. That member was the offender, NK. He was not to share in the profits of the contract and was threatened that if he did not perform the heinous task he and his partner's young child would be killed." 1. Later, his Honour said at [35] (my emphasis): "Farhad, and Mumtaz Qaumi accepted a contract in the amount of $200,000 to arrange for the murder of Joseph Antoun. They approached the offender at his home and told him that 'his number had come up' and that they had a job for him to do. He was told that if he did not do the job they would come back and kill both him and his partner's daughter. They provided him with a .38 calibre revolver." 1. Hamill J said at [43]-[45] (my emphasis): "43 There are two different factual questions involved in this area of controversy and both are important to a proper assessment of the offender's objective criminality. The first concerns the elements of murder and what NK's intention was when he pulled the trigger. In relation to that question, the onus is on the prosecution to establish the intention to kill beyond a reasonable doubt. Having considered all alternative inferences consistent with some other intention, I am satisfied beyond reasonable doubt that at the time NK shot Mr Antoun he intended to kill him. In reaching this conclusion, I note that five shots were fired from very close range and that Mr Antoun suffered four bullet wounds to the upper body. I reject the offender's evidence that he did not intend to kill Mr Antoun and that, if he had formed that intention, he would have shot Mr Antoun in the head. 44 The second question arises from NK's assertion that he did not 'want' to kill Mr Antoun. This question is relevant to the issue of duress. Having heard the offender give evidence and having considered his interviews with the police, I am satisfied that he did not want to commit this crime. I am satisfied that he acted as he did as a result of the direct and serious threat to his own life and to that of the young child that he treated and raised as his own daughter. 45 This finding on the balance of probabilities that the offender was acting under duress is an important factor in a comparative and relative assessment of the objective criminality in the present case." 1. His Honour found at [50] (my emphasis): "I agree with those remarks and accept that the present case falls below the 'worst case'. When one considers the element of duress which is particularly significant in relation to this count, the offending falls well outside of the worst case when viewed objectively and dispassionately. That finding should not be interpreted to suggest that the offending is not extremely serious and approaching the top end of the range of offences encompassed by the crime of murder. The offence was committed on parole as part of a well-executed and chilling criminal plot which involved the taking of human life for profit. For the purpose of a consideration of the standard non-parole period, the offence falls above the mid-range of objective seriousness." 1. A vital point of distinction in the sentencing of these three offenders was the finding by the sentencing Judge that NK acted under duress when carrying out the Antoun murder. This was not simply a case of the killer (NK) committing the murder at the request of the organisers (Farhad Qaumi and Mumtaz Qaumi). This case involved the killer committing this act under duress, a conclusion which affected his moral culpability and bore upon the objective seriousness of his offence: Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 at [30]ff; Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112]. 2. When sentencing Farhad Qaumi and Mumtaz Qaumi for the Antoun murder, his Honour said that he was unable to be satisfied beyond reasonable doubt that those Applicants had threatened NK and his daughter (see ROS[46] at [386] above). Accordingly, his Honour made different findings on that issue which flowed from the different evidence before the Court on sentence and the different standard of proof applicable concerning a mitigating factor (for NK) as opposed to an aggravating factor (for Farhad Qaumi and Mumtaz Qaumi). The objective bystander would take into account this very important difference in considering whether there was a proper objective foundation for the claim of legitimate grievance arising from NK's lesser indicative sentence for the Antoun murder. 3. Further and significantly, the sentencing Judge had regard to the sentence imposed on NK for the Antoun murder as an important factor in concluding that an aggregate sentence of life imprisonment should not be imposed on Farhad Qaumi and Mumtaz Qaumi (see ROS[198] at [417] above and ROS[207] at [423] above). This is an important and unusual feature which does not assist Farhad Qaumi and Mumtaz Qaumi on their parity grounds. 4. It is necessary to keep in mind, as well, that with respect to each of NK, Farhad Qaumi and Mumtaz Qaumi, an aggregate sentence was imposed with the indicative sentence for the Antoun murder being one component only (albeit a large component) of that aggregate sentence. There was a significant level of notional accumulation applied which operated in favour of Farhad Qaumi and Mumtaz Qaumi, after the discretionary determination was made that a determinate sentence, and not a life sentence, should apply to each of them. 5. It is not contended that his Honour applied an incorrect principle or made a factual error in his consideration of this aspect. Rather, the ground asserts error in the outcome by comparison of the sentences imposed upon NK, Farhad Qaumi and Mumtaz Qaumi for the murder of Joseph Antoun. 6. The sentencing Judge applied the correct principles in considering issues of parity and proportionality. Further, his Honour considered several sentencing decisions for contract killings in determining the appropriate sentences to be imposed on NK, Farhad Qaumi and Mumtaz Qaumi arising out of the Antoun murder. 7. His Honour was well aware of the approach adopted on sentence in the particular circumstances of those cases. His Honour explained his approach on sentence for Farhad Qaumi and Mumtaz Qaumi for the murder of Joseph Antoun, being fully alive to the sentencing decision made with respect to NK for the same crime. 8. The sentencing Judge undertook a close examination of the points of similarity and difference for the purpose of sentence and reached a conclusion concerning sentence which had regard to considerations of parity and proportionality. It was open to the sentencing Judge to reach the conclusions which he did. Farhad Qaumi and Mumtaz Qaumi have not demonstrated an objective foundation for a legitimate sense of grievance by reference to the indicative sentence for NK concerning the murder of Joseph Antoun. 9. I reject these grounds of appeal. Claim of Error in Finding Concerning Objective Criminality for the Conspiracy to Murder Charge in Count 3 (Jamil Qaumi Ground 5) Submissions of the Parties 1. It was submitted for Jamil Qaumi that error had been demonstrated in his Honour's approach on sentence with respect to Count 3 in light of the verdict returned by the jury on Count 1. His Honour nominated an indicative sentence of imprisonment for 12 years and six months for the manslaughter of Mahmoud Hamzy (Count 1) and an indicative sentence of imprisonment for 10 years for conspiracy to murder Mohammed Hamzy (Count 3). 2. It was submitted for the Applicant that the jury's verdict of Count 1 reflected excessive self-defence which reduced the offence from murder to manslaughter. It was submitted that the sentencing Judge should have reflected this aspect in sentencing for Count 3 although accepting that it was open to the jury to find Jamil Qaumi guilty of conspiracy to murder. 3. It was submitted that the sentencing Judge should have either: 1. found that the manslaughter offence (based as it was on an acceptance by the jury of the subjective element for self-defence, but finding that excessive force had been used) involved criminality that was less than mid-range and accordingly arrived at an indicative sentence that was less than that indicated; or 2. avoided double counting by determining that no (or at worst) a small indicative sentence was relevant for the conspiracy charge and so indicated. 1. It was submitted that such an approach was required in this case to avoid double punishment in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40]. 2. The Crown submitted that the offences contained in Counts 1 and 3 involved different criminality so that the approach taken by the sentencing Judge was open in the circumstances of the case. Decision 1. It was open to the sentencing Judge to nominate the indicative sentences selected for Jamil Qaumi for Counts 1 and 3. The conspiracy offence contained in Count 3 was based upon an agreement to murder Mohammed Hamzy in a type of pre-emptive strike in the belief that Mohammed Hamzy was seeking to kill Farhad Qaumi. This arose in the context of a gangland feud where resort to force on either side of the conflict involved serious outlaw activity. These aspects were relevant to the objective gravity of the offence in Count 3. 2. The verdict of manslaughter based upon excessive self-defence arose from the direct circumstances surrounding the killing of Mahmoud Hamzy, mistakenly taken by the killers for Mohammed Hamzy. In my view, this is not a case where it can be said that the manslaughter offence wholly or substantially reflects the criminality contained in the conspiracy offence as well so as to invoke the principles sought to be relied upon by Jamil Qaumi. 3. His Honour was clearly alive to factors which bore on sentence for Counts 1 and 3 (see ROS[13]-[14] at [357] above and ROS[172] at [414] above). 4. Further, Jamil Qaumi asked the sentencing Judge to take into account on sentence for Count 1 other serious offences included on a Form 1. His Honour explained how those matters were taken into account on sentence for Count 1 (see [389] above). 5. In any event, his Honour imposed an aggregate sentence which did not (of course) nominate the level of actual accumulation as between the sentences for Counts 1 and 3, which formed part only of the total criminality for which an aggregate sentence was imposed for Jamil Qaumi. It will be apparent from an examination of the indicative sentences, and the aggregate sentence passed, that there was a high level of notional accumulation which operated in favour of Jamil Qaumi. His Honour noted the overlapping aspects as between Counts 1 and 3 and sought to avoid any double counting of factors when dealing with these offences. 6. I reject this ground of appeal. Alleged Error in Assessment of Objective Seriousness with Respect to Counts 2 and 3 (Mumtaz Qaumi Ground 8) Submissions of the Parties 1. It was submitted for Mumtaz Qaumi that the sentencing Judge fell into error with respect to Counts 2 and 3 in finding that the objective criminality lay in the middle range of objective seriousness. 2. With respect to Count 3, reliance was placed upon the self-defence aspect which it was said ought bear upon the assessment of objective seriousness for the offence of conspiracy to murder. It was submitted that a finding ought to have been made that the objective criminality lay well below the mid-range of objective seriousness for offences of this type. 3. The Crown submitted that the assessment of objective seriousness by the sentencing Judge was open with respect to each of these counts. Decision 1. A challenge to an assessment of objective seriousness of an offence is in the nature of a challenge to a discretionary finding by a sentencing Judge: Mulato v R [2006] NSWCCA 282. Such an assessment is quintessentially one for the sentencing Judge and this Court is slow to interfere with such an assessment: Mulato v R at [37], [46]. 2. It was well open to the sentencing Judge to determine that the offence of causing grievous bodily harm to Omar Ajaj (Count 2) lay in the middle range of objective seriousness with an indicative sentence of imprisonment for eight years and a non-parole period of six years also being open in the circumstances of the case. As Hamill J recounted, Omar Ajaj had the misfortune to be present in the garage at the time of the shooting of the wrong Hamzy and he was also shot and sustained significant injuries to his abdomen and leg (ROS[8] and [12] at [356] above and ROS[104]). 3. With respect to conspiracy to murder Mohammed Hamzy (Count 3), it was open to the sentencing Judge to find that the offence was in the middle range of objective seriousness with an indicative sentence of imprisonment for 10 years with a non-parole period of 7.5 years. 4. The aspect of self-defence relied upon with respect to Count 3 did not, in the circumstances of this case, call for a finding that the offence lay other than in the middle range of objective seriousness. As noted with respect to Jamil Qaumi (at [481] above), this offence arose in the context of a gangland feud where resort to force on either side of the conflict involved serious outlaw activity. 5. His Honour made careful assessments of objective seriousness concerning these offences which were well open in the circumstances of the case. Error has not been demonstrated under this ground of appeal. Claim that the Aggregate Sentence was Manifestly Excessive (Farhad Qaumi Ground 4; Mumtaz Qaumi Ground 7) 1. As the Court will proceed to resentence each Applicant as a result of the finding that error has been demonstrated in the reliance upon erroneous standard non-parole periods and the acquittal of Farhad Qaumi and Mumtaz Qaumi on certain counts, it is not necessary to address the grounds asserting that the aggregate sentences were manifestly excessive. The matters raised concerning these grounds of appeal will be taken into account in resentencing the Applicants. Resentencing the Applicants 1. In performing its function under s.6(3) Criminal Appeal Act 1912, the Court should take into account all relevant matters in exercising its independent sentencing discretion to form its own view of the appropriate sentences: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]. The Applicants did not place any additional evidence before this Court concerning events since the imposition of sentence on 16 June 2017. 2. Subject to what follows, apart from the particular findings challenged in specific sentence grounds of appeal which have now been determined, the Court was not asked to make any different findings concerning the objective seriousness of offences nor other aspects of the case including the Applicants' subjective circumstances. 3. Counsel for the Applicants were content for the Court to proceed to resentence upon the material before the sentencing Judge and utilising the findings made by his Honour which, in many respects, operated favourably to the Applicants. Farhad Qaumi 1. The crimes for which Farhad Qaumi was sentenced occurred between 29 October 2013 and 8 January 2014. Farhad Qaumi was 31 years old at the time of these offences. 2. Farhad Qaumi challenged the indicative sentence for the Antoun murder which constituted the largest indicative sentence for the purpose of fixing an aggregate sentence. It was submitted that, given the objective circumstances of that offence, the indicative sentence itself was manifestly excessive. 3. I do not accept this submission. The challenge to the indicative sentence for the Antoun murder was touched upon earlier (when considering the parity ground) where, reliance was placed upon other sentencing decisions for contract murders (see [472]-[473] above). 4. As the findings of the sentencing Judge make clear, the murder of Joseph Antoun was a crime of considerable magnitude which, of itself, attracted careful consideration by his Honour as to whether a sentence of life imprisonment was appropriate (see ROS[51] at [386] and ROS[214] at [423] above). The indicative sentence nominated for this offence was clearly open. 5. Farhad Qaumi stood to be sentenced as well for a series of other very serious crimes, including manslaughter and a range of other crimes of violence arising from organised criminal gang activity. 6. With respect to Counts 19, 21 and 22, there was a misstatement concerning the standard non-parole period. His Honour acted upon the common position of the parties that the standard non-parole periods for each of these offences was four years when the true position was that the period was three years. This was an extremely limited error for offences where the firearms in question were utilised in actual crimes of violence so that, as the sentencing Judge observed (at ROS[121] at [406] above; ROS[140] at [410] above), there was a significant element of notional concurrency to be factored into the determination of an aggregate sentence. 7. For Farhad Qaumi, it is appropriate to retain the findings of objective seriousness made by the sentencing Judge with respect to all offences except Count 18 where an acquittal is to be entered. 8. The offence in Count 18, which is to be disregarded, attracted an indicative sentence of imprisonment for six years with a non-parole period of four-and-a-half years. Although firearms were used in the commission of this offence, no injury to any person could be taken into account on sentence. I mention this because the removal of this offence for the purpose of determining an aggregate sentence has, in my view, limited impact on the ultimate sentencing outcome. 9. The sentencing Judge applied the totality principle in a manner which operated favourably to Farhad Qaumi. Despite the gravity and repetition of very serious crimes, he avoided imposition of a life sentence with some hope being left open for his release, albeit very many years away. 10. It will be apparent from an examination of the aggregate sentence and the indicative sentences that there was a substantial allowance by way of notional concurrency for the variety of very serious crimes carried out by, or on behalf of, Farhad Qaumi in pursuit of his ambition to expand his criminal network. 11. Farhad Qaumi used a range of persons to commit serious crimes of violence to further his own criminal ends. His adverse personal background operated as a principal factor to spare him from a sentence of life imprisonment which might otherwise have followed given the gravity and number of serious crimes carried out under his leadership (see the principles and cases referred to at [392]-[399] above). 12. Farhad Qaumi has a significant criminal history for offences of violence. Hamill J referred to his criminal history (ROS[81]: "Farhad's criminal history spans over 20 years with his first conviction recorded in June 1996 at the age of 13. The convictions are for a diverse range of offending including driving while disqualified, aggravated robbery, possession of an unregistered firearm and causing grievous bodily harm to a person with intent to murder. While he has previously been sentenced to terms of imprisonment, nothing in his criminal history approaches the gravity of the crimes he committed between October and December 2013 for which he is now to be sentenced. His criminal history, at least, disentitles him to leniency. It also raises real questions as to his future dangerousness and whether the record should be treated as a circumstance of aggravation." 1. In 1998, this Court allowed a Crown appeal and resentenced him for an offence of armed robbery with wounding: R v FQ (Court of Criminal Appeal, R S Hulme and Hidden JJ, Carruthers AJ, 17 June 1998, unreported). As Hamill J noted (ROS[212] at [423] above), psychiatric evidence at that time indicated that Farhad Qaumi was suffering from post-traumatic stress disorder. 2. Hamill J observed that a "worrying aspect of the 1998 report was that some of [Farhad Qaumi's] personality traits" were "described as almost psychopathic in nature" (ROS[80]). 3. Hamill J (at ROS[82]) related this diagnosis of Farhad Qaumi to the commission of the present offences and his control of fellow gang members who committed grave crimes of violence on his behalf: "I return to the observation in the earlier report suggesting Farhad's personality traits were 'almost psychopathic'. The pattern of conduct demonstrated in the cases before me suggests some form of psychopathic disorder as that term is generally understood. Apart from him readily resorting to extreme violence and the methods he used to control his fellow gang members, a particularly disturbing aspect of his conduct was the use of people like Witness D and Witness K to do his bidding. Witness D was a young Hazara man whose performance in the witness box showed that he was 'slow' to the point of having some form of intellectual disability. He was often confused and did not understand the questions. He was literal in his responses. He sometimes smiled at the men in the dock as if to seek their approval and reassurance. His description of his induction into the gang (when he was hugged as a brother) was chilling because it was clear he was being manipulated and used. There was a silence in the court room as he gave his evidence and the mood in the trial changed. His evidence was compelling. He was a soft target for Farhad. Witness K was Farhad's young cousin who had a job and appeared to have his life in order away from the criminal milieu. In spite of this, Farhad used him to move the murder weapon after the Antoun shooting. This explained his brother's (Witness J's) anger in his recorded conversations with Farhad on 4 January 2014." 1. Farhad Qaumi's pattern of serious offending, for which the present aggregate sentence was passed, confirmed the accuracy of the 1998 assessment of a psychopathic disorder, with those features manifesting themselves at a time when Farhad Qaumi was living as a mature adult in the Australian community in 2013 and 2014. 2. The Crown has not appealed against the determinate aggregate sentence passed at first instance. 3. In exercising sentencing discretion for the purpose of s.6(3) Criminal Appeal Act 1912, I am satisfied that the same indicative sentences should be nominated for all offences except Count 18 which is to be disregarded. 4. The aggregate sentence and the non-parole period must reflect the gravity and number of Farhad Qaumi's offences. A limited finding of special circumstances should be made for the reasons expressed by the sentencing Judge (see ROS[216] at [425] above). 5. In my view, the appropriate outcome on sentence is to impose an aggregate head sentence of imprisonment for 58 years with a non-parole period of 42 years. A period of 42 years' imprisonment represents the minimum period which Farhad Qaumi should serve for these very serious crimes. Mumtaz Qaumi 1. Mumtaz Qaumi was 29 years old at the time of the present offences. 2. With respect to Mumtaz Qaumi, it is necessary to put to one side the indicative sentences for Counts 9 and 18. As with Farhad Qaumi, the errors with respect to standard non-parole periods of Mumtaz Qaumi were limited to erroneous application of a standard non-parole period of four years instead of three years concerning Counts 21 and 22. This was an extremely limited error which concerned firearms offences which were the subject of very substantial notional concurrency. 3. The remaining question is whether a lesser aggregate sentence is warranted in all the circumstances of the case. The fact that two offences (Counts 9 and 18) are to be put to one side bears materially upon that question. The overall criminality for which Mumtaz Qaumi is to be sentenced is reduced to an extent as a result of his acquittal on those matters. 4. At the same time, his offences include the murder of Joseph Antoun and the manslaughter of Mahmoud Hamzy as well as conspiracy to murder and other grave offences of violence. Subjective factors were taken into account in favour of Mumtaz Qaumi and played a significant role in the discretionary determination that a sentence of life imprisonment should not be imposed in his case. 5. Mumtaz Qaumi has a criminal history which included serious offences of violence, but with no offences being committed by him between 2006 and 2013 when the present offences were committed. Hamill J stated (ROS[92]) that his criminal history disentitled him to leniency that would be afforded to a first offender, but did not constitute an aggravating feature or engage the principles discussed in Veen v The Queen (No. 2) [1988] 164 CLR 465; [1988] HCA 14. 6. The Crown has not appealed against the determinate aggregate sentence passed at first instance. 7. In exercising sentencing discretion for the purpose of s.6(3) Criminal Appeal Act 1912, I am satisfied that the same indicative sentences should be nominated for all offences except Counts 9 and 18 which are to be disregarded. 8. The aggregate sentence and the non-parole period must reflect the gravity and number of Mumtaz Qaumi's offences. A limited finding of special circumstances should be made for the reasons expressed by the sentencing Judge (see ROS[202](2)). 9. I am satisfied that a lesser aggregate sentence is warranted in the case of Mumtaz Qaumi. An aggregate sentence of imprisonment for 46 years with a non-parole period of 33 years is appropriate in his case. A period of 33 years represents the minimum period which Mumtaz Qaumi should serve for his grave offences. Jamil Qaumi 1. Jamil Qaumi has not succeeded on any aspect of his conviction appeal. His appeal against sentence had succeeded only upon the basis that erroneous standard non-parole periods were taken into account on Counts 21 and 22, being reliance upon a standard non-parole period of four years instead of three years. 2. In my view, this is an error of a low order which affects indicative sentences for two of the less serious firearms offences where a substantial degree of notional concurrency applied on sentence. The sentencing Judge made clear that indicative sentences for these firearms offences were to operate notionally as concurrent sentences with the offences where the firearms were used (see ROS[41] at [379] and ROS[140] at [410]). 3. Having considered all relevant matters, including the correct standard non-parole period, I am satisfied that the indicative sentences nominated by the sentencing Judge remain appropriate for each of the offences committed by Jamil Qaumi including Counts 21 and 22, which were subject to this essentially technical error. 4. Having considered all relevant matters, I am not persuaded that any lesser aggregate sentence is appropriate in the case of Jamil Qaumi. Conclusion and Proposed Orders 1. In light of the findings and conclusions expressed in this judgment, the sentence appeal of Jamil Qaumi should be dismissed. The sentence appeals of Farhad Qaumi and Mumtaz Qaumi should be allowed with lesser aggregate sentences to be passed in each case. 2. With respect to Farhad Qaumi's sentence appeal, I propose the following orders: 1. grant leave to appeal against sentence; 2. quash the aggregate sentence imposed on 16 June 2017; 3. in its place, sentence Farhad Qaumi to an aggregate sentence of imprisonment for 58 years, comprising a non-parole period of 42 years commencing on 9 January 2014 and expiring on 8 January 2056 with a balance of term of 16 years commencing on 9 January 2056 and expiring on 8 January 2072; 4. the earliest date upon which Farhad Qaumi will be eligible for release on parole is 9 January 2056. 1. With respect to Mumtaz Qaumi's sentence appeal, I propose the following orders: 1. grant leave to appeal against sentence; 2. quash the aggregate sentence imposed on 16 June 2017; 3. in its place, sentence Mumtaz Qaumi to an aggregate sentence of imprisonment for 46 years, comprising a non-parole period of 33 years commencing on 9 December 2014 and expiring on 8 December 2047 with a balance of term of 13 years commencing on 9 December 2047 and expiring on 8 December 2060; 4. the earliest date upon which Mumtaz Qaumi will be eligible for release on parole is 9 December 2047. 1. With respect to Jamil Qaumi's sentence appeal, I propose the following orders: 1. grant leave to appeal against sentence; 2. appeal dismissed. ********** ANNEXURE "A" (With respect to [5] of this judgment, the list identifying witnesses is confidential and will be made available to the parties only.) ********* 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: 15 July 2020