District Court New South Wales Medium Neutral Citation: R v Qaumi [2022] NSWDC 302 Hearing dates: 1 June 2022 Date of orders: 1 June 2022 Decision date: 01 June 2022 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: A term of imprisonment of 19 months with a non-parole period of 12 months: at [31] – [35]. Catchwords: CRIME — Violent offences — Assault occasioning actual bodily harm SENTENCING — Aggravating factors — Use of weapon — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Relevant factors on sentence — Availability of summary disposal — Circumstances of offence — Deterrence— Objective seriousness — Purposes of sentencing Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Cahyadi v The Queen [2007] NSWCCA 1 Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163 R v Cattell [2019] NSWCCA 297 R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 R v Jeremiah [2016] NSWCCA 241 R v MAK; R v MSK [2006] NSWCCA 38 Category: Sentence Parties: Regina (Office of the Director of Public Prosecutions) Farhad Qaumi (Offender) Representation: Ms N Johnson (Office of the Director of Public Prosections) Mr D Price (Counsel for the Offender) File Number(s): 2020/166766 Judgment 1. Farhad Qaumi, now aged 39, appears for sentence having pleaded guilty to one count of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act 1900. The offence carries a maximum penalty of five years imprisonment with no standard non-parole period. 2. The matter was listed for trial on 11 October 2021. A plea of guilty was indicated a few days before the trial date. The plea, in those circumstances and pursuant to s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999, attracts a 5% discount for the utilitarian value of the plea on any sentence to be imposed. 3. Mr Price counsel for the offender, concedes that a term of full-time custody is appropriate in the circumstances. 4. The purposes of sentencing outlined in s 3A of the Crimes (Sentencing Procedure) Act 1999, have to be taken into account. 5. Mr Qaumi is presently serving a term of imprisonment imposed by Hamill J (R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774) and modified by the Court of Criminal Appeal (Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163). The total term of imprisonment is 58 years with a non-parole period of 42 years and his current date of eligibility to apply for release to parole is 8 January 2056. 6. The agreed facts show that at the time of the offence, the offender and the victim Mr Sultani, then aged 31, were inmates in the high-risk management unit at Goulburn Correctional Centre. Both were housed in cell block B1 in adjoining cells. They were granted association privileges by prison staff which means they were allowed to spend time together in certain designated areas of the prison at scheduled times. They had previously had an association meeting on 30 April 2020 without incident. 7. On 20 May 2020 the offender was taken to the TV room in handcuffs. The victim was bought in shortly thereafter also handcuffed. What is set out in the agreed facts in demonstrated in CCTV footage of the incident which has been played to the Court. 8. In short, the victim moved towards to the door to present his hands to staff for handcuffs to be removed. While this was occurring, the offender stood behind him, removed a weapon from his pants pocket and stabbed the victim in the head a number of times. The victim held his hands up to his face in an attempt to shield himself. The offender continued to sporadically stab at the victim with the weapon and the victim continued to move around the room in an attempt to defend himself. The victim was bleeding from the face and neck and blood was observed on the floor on the room. The entire incident lasted about two minutes. 9. Corrective Services Officers assembled outside the room and instructed the offender to walk to the back of the room, put the weapon on the table and kneel with his hands on his head. 10. The victim was taken away and the offender was secured. 11. Injuries to the victim included: * a skin tear to the right forehead of 5cm by 2 cm, * a smaller tear of measuring 1cm by 0.05 cm to the right forehead, * a laceration to the right side of the neck measuring 10cm in length. The posterior end of the laceration was deeper, about 2mm deep. 1. The lacerations were cleaned and dressed with Steri-Strips and he refused any further treatment. 2. Blood on the floor inside and outside the room was observed. 3. The first weapon that was found was shown to have the DNA of the offender on the handle of the blade and of the victim on the blade. A second edged weapon, described as a razor blade attached to a handle, was found lying on the floor near the door. that the weapon was shown to have the DNA of the victim Sultani on the area of the blade. 4. The offender exercised his right to silence when spoken to by police. 5. The victim declined to provide a statement or speak to police about the incident. 6. Mr Qaumi has a very lengthy criminal record extending over 29 pages and it is unnecessary to refer to it in detail. 7. In short, as the judgment of Hamill J in R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 shows, the offender has been sentenced for a number of offences including conspiracy and manslaughter in relation to a number of deaths involving activities of a criminal organisation known as the Brothers For Life, Blacktown. 8. Mr Price took me [74] of R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 as to the circumstances under which the offender was born in Afghanistan and came to Australia. No other subjective material is relied upon. 9. The Crown acknowledges in submissions that the offence could have been dealt with in the Local Court but for the fact that he is presently serving a lengthy term of imprisonment. 10. In terms of sentencing principles, there is no dispute with the proposition that the importance of maintaining discipline within the prison system and protecting other inmates from criminal assaults by their fellow inmates is reflected in the general requirement contained in s 56 of the Crimes (Sentencing Procedure) Act 1999 that sentences for such offences be cumulative subject to the discretion granted to the Court in ss 56(3). 11. The presumption that is set out in s 56 involves the proposition that sentences should deter inmates from committing offences in custody and the Court should protect the welfare of other inmates as the Court said in R v Jeremiah [2016] NSWCCA 241. 12. I take into account, as the Crown submits, that the offence involved the actual use of weapon and that he has a significant previous record. 13. In terms of objective seriousness, the facts show a level of planning and premeditation in that the defendant specifically bought the weapon to the meeting place with the clear intention of using it to assault the victim. The victim was in handcuffs at the time and unable to defend himself to any substantial degree. He suffered relatively modest injuries which require Steri-Strips and no further treatment. There is no evidence relating to the motive for the assault and no suggestion of any provocation on the part of the victim. 14. The Crown's ultimate submission is that the offence involves an unprovoked act of assaulting a fellow inmate and that while totality is a factor to be taken into account, given his lengthy non-parole period, there must be some accumulation with the offender's current sentence to reflect the principles of sentencing and including the need for general and specific deterrence and the protection of other inmates. As such the Crown acknowledges that there is a basis for some exercise of discretion under s 56(3). 15. In terms of objective seriousness Mr Price describes the offence as involving only sporadic stabbings within a short time and, as I have indicated, relatively minor lacerations. The absence of formal complaint from the victim is not relevant or particularly surprising in these circumstances. 16. I acknowledge, as Price J said in R v Cattell [2019] NSWCCA 297, that one of the purposes of the totality principle is to avoid a crushing sentence. Similar sentiments were expressed in Cahyadi v The Queen [2007] NSWCCA 1 and R v MAK; R v MSK [2006] NSWCCA 38 as set out in Mr Price's submissions. 17. In my view, the offending was around mid-range for this type of offence having regard to the matters that I have referred to. 18. I accept that there is a basis for a finding of special circumstances to limit the prospect of further institutionalisation and to take account of the matters that Mr Price put in relation to what he, without any criticism, loosely referred to as some form of extra curial punishment namely the matters that will be taken into account on his ultimate application for parole. 19. Mr Price's ultimate submission that a sentence should be wholly concurrent and should be a fixed term is not one in my view which reflects the principles as to sentencing for this type of offence. There should be a modest degree of accumulation as the Crown acknowledges. 20. The orders that I make are: 21. The offender is convicted of the offence. 22. The starting point of the term of imprisonment would be 20 months with a 5% discount for the plea. 23. I impose a term of imprisonment of 19 months (inclusive of the 5% discount referred to at [33]). I find special circumstances. and impose a non-parole period of 12 months. 24. The commencement date of the sentence is 8 October 2055. The offender is first eligible for release on this sentence on 7 October 2056. ********** 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: 29 July 2022