Supreme Court New South Wales Medium Neutral Citation: R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774 Hearing dates: 3, 6, 7 and 26 April 2017, 23 May 2017, 13 June 2017 Date of orders: 16 June 2017 Decision date: 16 June 2017 Before: Hamill J Decision: Jamil Qaumi sentenced to imprisonment for 31 years with a non-parole period of 21 years. Mumtaz Qaumi sentenced to imprisonment for 50 years and 10 months with a non-parole period of 36 years and 10 months. Farhad Qaumi sentenced to imprisonment for 60 years with a non-parole period of 43 years. Catchwords: CRIMINAL LAW – sentence – gangland violence – gun violence – Brothers for Life – spate of shootings arising out of "war" with rival chapter of BFL – "I'm at war" – wanton lawlessness – manslaughter where jury accepted excessive self-defence – hit list – series of attempted murders – shooting in or near people's homes and in public places – multiple victims – "how hard is it to shoot somebody?" – harebrained plan – shootings in peoples' homes – shootings in public places – multiple victims – whether maximum penalty appropriate – mitigating features – where offenders scarred by exposure to violence in Afghanistan – psychiatric impact CRIMINAL LAW – sentence – cold blooded contract killing – whether life sentence without parole appropriate – whether two stage test required by statute – where moral culpability reduced by evidence of traumatic and dislocated childhood experience and evidence of psychiatric conditions – community interest in community protection – where lengthy determinate sentence may be effective life sentence – where offender not eligible for release to parole until his mid-seventies – life sentence not the only way community interest can be met CRIMINAL LAW – sentence – mitigating features – onerous conditions of incarceration – when capable of being taken into account on sentence – evidence of classification – designation as extreme high risk inmates – grounds upon which decisions as to classification are made – segregation – lack of human contact – whether offenders authors of their own fate – whether double punishment – correct approach to issue – whether prediction can be made as to future conditions – courts reluctance to interfere with management of prisons – offender's evidence accepted – conditions unduly onerous – in circumstances relevant to length of sentence CRIMINAL LAW – sentence – contempt in the face of the court – refusal to answer question – refusal to nominate co-offender – where offender concerned he will be labelled a "dog" – where offender fearful of reprisal – act of violence in the dock in the presence of judicial officer – act calculated to intimidate and injure co-accused – co-accused running case of duress – serious example of contempt – consecutive sentences appropriate Legislation Cited: Crimes Act 1900 (NSW) Crime (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW) Cases Cited: Abbas & Ors v R [2013] NSWCCA 115 Attorney General's Application No 1 of 2002 [2002] NSWCCA 518 Barton v R [2009] NSWCCA 164 Bugmy v The Queen (2013) 249 CLR 471; [2013] HCA 37 Cahill v R [2015] NSWCCA 53 Clark v Commissioner for Corrective Services [2016] NSWCA 186 Clark v State of New South Wales & Ors [2014] NSWSC 801 DA v R [2014] NSWCCA 306 Dean v R [2015] NSWCCA 307 Dean v R [2016] HCATrans 278 DPP (Vic) v Hunter [2013] VSC 440 Fayad v R [2017] NSWCCA 81 Ghamraoui v R [2009] NSWCCA 111 Glare v R [2015] NSWCCA 194 Green v The Queen, Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 JM v R [2014] NSWCCA 297 Kanaan and Ors v R [2006] NSWCCA 109 Kearsley v R [2017] NSWCCA 28 Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 Kennedy v The Queen [2010] NSWCCA 260 Knight v R [2006] NSWCCA 292 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 McIntosh v R [2015] NSWCCA 184 Majid v R [2010] NSWCCA 121 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 May v R [2012] NSWCCA 111 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 Postiglione v The Queen (1997) 189 CLR 295; [2011] HCA 49 R v AC; AC v R [2017] NSWCCA 20 R v Adams (No 7) [2017] NSWSC 179 R v Burnes [2007] NSWCCA 53 R v Cardoso [2003] NSWCCA 15 R v Dang [1999] NSWCCA 42 R v Do (No 4) [2015] NSWSC 512 R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 209 R v Engert (1995) 84 A Crim R 67 R v FQ (Court of Criminal Appeal (NSW), 28 May 1998, unrep) R v Halloun [2014] NSWSC 1705 R v Hamzy [2016] NSWSC 1512 R v Hines (No 3) [2014] NSWSC 1273 R v Israil [2002] NSWCCA 255 R v Johnson [2003] NSWCCA 129 R v Lauritsen (2000) 114 A Crim R 333 R v Merritt [2004] NSWCCA 19 R v Miles [2002] NSWCCA 276 R v MJB [2014] NSWCCA 195 R v MM; R v WK [2017] NSWCCA 19 R v Mostyn [2004] NSWCCA 97 R v NK [2015] NSWSC 1281 R v NK (No 3) [2015] NSWSC 1257 R v Oinonen [1999] NSWCCA 310 R v Pennisi [2001] NSWCCA 326 R v Pennisi [2003] NSWSC 892 R v Previtera (1997) 94 A Crim R 76 R v Qaumi & Ors (No 3) [2016] NSWSC 15 R v Qaumi & Ors (No 25) [2016] NSWSC 514 R v Qaumi & Ors (No 55) [2016] NSWSC 1068 R v Qaumi & Ors (No 57) [2016] NSWSC 1157 R v Qaumi & Ors (No 62) [2016] NSWSC 1215 R v Qaumi & Qaumi [2016] NSWSC 1473 R v Qaumi & Qaumi (No 12) [2017] NSWSC 134 R v Ryan & Coulter [2011] NSWSC 1249 R v Sumpton (No. 4) [2015] NSWSC 684 R v Suteski (2002) 56 NSWLR 182 R v Totten [2003] NSWCCA 207; 145 A Crim R 304 R v Tsiaras [1996] 1 VR 398 Smith v R [2015] NSWCCA 193 Smith v The Queen (1991) 25 NSWLR 1 Sumpton v R [2016] NSWCCA 162 The Queen v Kilic [2016] HCA 48 Veen v R (No 2) (1988) 164 CLR 465 Vinter and Others v The United Kingdom (European Court of Human Rights, Grand Chamber, Application Nos 66069/09, 130/10 and 3896/10, 9 July 2013) Category: Sentence Parties: Regina Farhad Qaumi Mumtaz Qaumi Jamil Qaumi Representation: Counsel: K McKay & P Hogan (Crown) J Stratton SC & M Curry (F Qaumi) P Young SC (M Qaumi) N Carroll (J Qaumi) A Francis (J Qaumi, on contempt proceedings) D Kell, Crown Advocate (amicus curiae on contempt proceedings) Solicitors: Solicitor for the NSW DPP(Crown) Archbold Legal (F Qaumi) George Sten & Co (M Qaumi) Bannisters Lawyers (J Qaumi) NSW Crown Solicitors (amicus on contempt proceedings) File Number(s): Farhad Qaumi - 2014/6809; 2014/315201; 2014/315252Mumtaz Qaumi – 2014/6813; 2014/315251; 2014/315260Jamil Qaumi - 2013/336086; 2014/18164; 2014315253 Judgment 1. Three brothers, Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi, stand for sentence in relation to a number of offences arising out of their involvement in the activities of a criminal organisation known as the Brothers for Life at Blacktown (BFL Blacktown). A jury determined the guilt of the offenders in relation to most of the offences following a trial that proceeded between April and November 2016. The jury returned its verdicts on 8 November 2016 and was discharged when it was unable to agree, or reach a majority verdict, in relation to a number of offences charged against two co-accused (MK and MZ) [1] and one offence in relation to Mumtaz Qaumi. The jury trial was largely concerned with five shooting incidents that took place between 28 October and 28 November 2013. One person was killed, several others injured and the lives of at least 10 people placed in jeopardy. These five shootings occurred in the context of differences between the BFL Blacktown, led by Farhad Qaumi, and a rival group called the Brothers for Life at Bankstown (BFL Bankstown), led by Mohammed Hamzy. In addition to the offences arising out of the shootings, the offenders were also convicted of supplying a large commercial quantity of drugs, participating in a criminal group by directing its activities, and possession of the firearms that were used in the shootings. In the course of the jury trial, Jamil Qaumi pleaded guilty to three counts of contempt and Mumtaz Qaumi pleaded guilty to one count of contempt. The most serious offence, the murder of Joseph Antoun by Farhad and Mumtaz Qaumi on 16 December 2013, was subject to a separate Judge alone trial. [2] That trial came to a conclusion on 28 February 2017. [3] 2. At times in the course of this judgment, for convenience and while intending no disrespect, I will refer to the offenders by their first names. THE FACTS OF THE OFFENCES 1. I will set out the facts of the offences in chronological order. These factual findings are 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. The Hamzy Shooting at Revesby Heights on 29 October 2013 1. 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). 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. I am unable to resolve the question of whether Witness L or Jamil Qaumi fired the headshots that killed Mahmoud Hamzy. [4] 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. [5] 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. 8. 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. 9. 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. [6] 10. 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. 11. 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. 12. 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. Offences to be taken into account in Jamil Qaumi's case 1. 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. 2. 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. [7] 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. The Shooting of Michael Odisho on 3 November 2013 1. 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. 2. 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). 3. 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. 4. 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. 5. 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, [8] 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. The Zakaria Shooting on 4 November 2013 1. 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. 2. 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. 3. 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". [9] 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. 4. 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. 5. 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?" 6. 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. 7. 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. 8. 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. 9. 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. The Chokolatta Café Shooting on 7 November 2017 1. 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. [10] 2. 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. 3. 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. [11] 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. 4. 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. 5. 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. 6. 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. The Greenacre shooting on 28 November 2013 1. On 28 November 2013, Farhad and Mumtaz Qaumi directed Witnesses L and M to carry out what was described as a "drive-by" shooting at premises in Greenacre. Witness L was provided with a 0.45 calibre pistol for this purpose. The plan was to shoot at the house occupied by the mother of Mohammed Hamzy. However, when they arrived at the scene, Witness L was concerned because there were women and children in the vicinity of Mrs Hamzy's home. He returned to the car, where Witness M told Witness L that a group of men nearby were members of the Bankstown BFL and suggested that Witness L shoot at them. Witness L did this by firing the gun around five or six times. One of the bullets struck Anthony Elkadi and another struck a dwelling. 2. Farhad and Mumtaz Qaumi were found guilty of an offence of firing at a dwelling house in the course of criminal activity with reckless disregard for safety (count 18). The offenders did not intend that any person be shot and they are not to be sentenced for the injury suffered by Mr Elkadi. 3. This offence was part of the gangland war being fought between the two chapters of the Brothers For Life. It was part of an ongoing and organised criminal activity. It involved the use of a firearm in a public place and directed at private home. The danger to innocent bystanders was obvious and the offence was committed with disregard for public safety. While this was the least serious of the convictions for shooting offences, it remains an extremely serious offence of its kind. Guns, drugs and criminal group 1. 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). [12] 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. 2. 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. [13] 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. 3. 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. The contract killing of Joseph Antoun on 16 December 2013 1. 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. [14] 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. [15] 9. 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. The contempt offences Refusal to answer questions 1. Jamil Qaumi gave evidence in the trial. On 23-24 August 2016, on four occasions, he refused to answer relevant questions in spite of being directed to do so. He was charged with contempt on each occasion although he was not required to enter a plea at that stage. [16] Subsequently, the learned Crown Advocate appeared as amicus and the charges as originally formulated were amended. Two charges of contempt were substituted. The first charge covered two instances of refusing to answer questions on 23 August 2016 during evidence in chief. The second charge covered refusal to answer questions on 24 August 2016 in cross-examination. Jamil was invited to plead to these charges on 6 October 2016 and entered a plea of guilty to each charge. 2. A peculiar aspect of the first charge is the fact that the question was asked in chief by the offender's own counsel in circumstances where it was (or should have been) known that Jamil would refuse to answer the question. The question was not withdrawn and the offender was directed to answer it. He refused. After a brief adjournment allowing counsel to advise their client, the offender was given the opportunity to answer the question and purge his contempt. He refused again after being directed to answer. The following day, the Crown Prosecutor asked similar questions and twice the offender refused to answer in spite of being directed to do so. 3. All four refusals to answer came in response to what was, essentially, the same question. That question was this: who was the third shooter in the Hamzy shooting. This was a critical piece of information to both the Crown and the man accused by the Crown. By refusing to answer this question, Jamil Qaumi acted with flagrant disregard to the interests of justice and the interests of the parties. At worst, he may have denied an innocent man the opportunity to establish his defence. 4. On the other hand, I accept that part of Jamil's Qaumi's evidence when he said: "Well, if I answer that question everyone's going to call me a dog. I'm in gaol and my life's going to be in danger in gaol." [17] 1. He later said: "Yeah, I am very sorry, your Honour, but I can't answer that question. I am in gaol. My life is going to be in danger if I answer that question." [18] 1. I accept that this is the true explanation for the offender's refusal to answer the questions and, while they do not purge the contempt or justify it, they provide a proper context and a degree of mitigation. Assaulting a co-accused in the dock 1. On 14 October 2016 Jamil and Mumtaz Qaumi each pleaded guilty to one count of contempt arising out of an act of violence upon their co-accused (MK) that was committed in my presence and while the Court was sitting in the absence of the jury. The incident took place on 1 August 2016. 2. The facts of the incident are described in my judgment R v Qaumi and Ors (No 55) [19] and the background to the incident is set out at [4]–[10] of that judgment. The incident was captured on CCTV installed in the courtroom and this footage was tendered in the course of the sentencing proceedings. [20] However graphic that footage is, it does not capture the full extent of the brief but violent confrontation. Members of my staff and others present in court were greatly shaken by the incident. 3. Nothing in the background to the incident justified what appeared to be a calculated attempt to injure and intimidate a co-accused. The timing of the incident, which occurred almost instantly upon the door behind the jury being closed, suggests that offenders planned the attack in advance. Farhad Qaumi's reaction suggested that he was unaware of the plan. Following the incident, both MK and the other co-accused sought to be removed from the dock asserting that they felt unsafe in the face of such violence. Ultimately, a Perspex [21] wall was constructed within the dock separating the three offenders from their co-accused. The Court was unable to sit while the wall was constructed and the jury was asked to disperse for a number of days. 4. I am prepared to accept that the pressure of the extremely long trial and the stress and anxiety caused by the proceedings, played a part in causing the accused to conduct themselves as they did. As I commented more than once over the 18 months of the trial, the conduct of the accused was, on the whole, very good in spite of those pressures and anxieties. Even allowing for these pressures, the behaviour constituted a serious contempt of the Court. The attitude of Courts to gangland violence 1. 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." [22] 1. 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. 2. 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. 3. 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. It is unnecessary to recount cases in which such statements have been made. the charges and applicable penalties 1. Farhad Qaumi is to be sentenced for 15 offences. Table A at the end of this judgment sets out those offences, along with the applicable maximum penalties and standard non-parole periods. He faces two offences carrying a maximum penalty of life imprisonment, [23] seven offences carrying 25 years and a number of other offences carrying 14 years or more. The offences attract standard non-parole periods of 20 years, 15 years, 10 years (4), 7 years (3) and four years (4). 2. Mumtaz Qaumi is to be sentenced for 17 offences. Table B sets out the offences, the maximum penalties and standard non-parole periods. This includes the murder which carries a maximum penalty of life imprisonment and standard non-parole period of 20 years. There are nine offences carrying a maximum penalty of 25 years and seven attracting a standard non-parole period of 10 years. All of the offences are serious. 3. Jamil Qaumi is to be sentenced for 18 offences. Table C sets out the details and applicable penalties. The drug offence carries a maximum penalty of life imprisonment although that is one of the less serious offences he faces. There are eleven offences carrying a maximum penalty of twenty five years and other offences carrying a standard non-parole period of 10 years. 4. One only has to state those maximum penalties and standard non-parole periods to realise the situation of each of these offenders is dire. 5. In sentencing the offenders, I must always keep in mind the maximum penalties prescribed by the Parliament (or the common law in the case of the contempt charges) and consider any relevant standard non-parole periods as guideposts to the relative seriousness with which the law treats the various offences. In many cases, the Crown has submitted that the maximum penalty should be imposed. The High Court indicated recently that a sentencing Judge should avoid expressing an opinion that a particular offence is "in the worst category of offence". [24] Rather, an assessment is to be made whether it is appropriate to impose the maximum penalty and to explain the reasons for that conclusion. That conclusion is based ultimately on a consideration of the seriousness of the offending and the personal circumstances of the offender. 6. The standard non-parole period applies to an offence falling in the middle range of objective seriousness and the correct approach to the standard non-parole period has been explained in a number of cases, most authoritatively by the High Court in Muldrock v The Queen. [25] While it is an important legislative yardstick to the appropriate sentence, the standard non-parole period does not replace the judicial task of synthesising all of the many factors that are relevant to sentencing and instinctively determining the weight that should be given to those factors in deciding on a proper and appropriate sentence. [26] Whether an offence falls within the middle range of objective seriousness is to be assessed "without reference to matters personal to the particular offender or class of offenders". [27] the personal (OR SUBJECTIVE) cases 1. 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. Farhad Qaumi 1. Farhad Qaumi's personal case was established through a report prepared by Dr Kerri Eagle, forensic psychiatrist. It received support from material tendered on behalf of Mumtaz Qaumi and in a decision of the Court of Criminal Appeal in 1998. [28] He has a troubling criminal history of some significance in a determination of the appropriate sentence. 2. Farhad is 34 years old and has 3 children between the ages of 3 and 5 years. His marriage broke down when he was remanded in custody in 2015 for these offences. He was born in Afghanistan and had a chaotic, traumatic and disrupted childhood. At the age of six or seven, his primary school was bombed and his teacher and best friend were both killed. His family fled Afghanistan due to the ongoing civil war and turmoil. They went to India in 1988 before migrating to Australia in 1993. The family experienced difficulties in adjusting to their new life in Australia. 3. The psychiatric report refers to the opinion of the offenders' sister that their father suffered from "war depression" and inflicted "frequent harsh physical discipline" on Farhad. Compounding this, Farhad witnessed a further violent death (of a fellow school student) during his early adolescence whilst in attendance at Canley Vale Behaviour School. 4. The offender resorted to drugs for a sustained period in an attempt to "avoid" feelings of "fear and anger" arising from years of sustained traumatic experiences. His drug use commenced at the age of 13 years. His substance abuse, especially his use of cannabis, increased during his adolescence and he committed robberies to sustain this habit. He told the psychiatrist that he was using "three to four ounces" of cocaine during a "session" in the period leading up to the present offending. A "session" might last from a Friday through to Monday. This is an extraordinary amount of cocaine to consume and speaks to either a raging drug habit or an exaggeration of his use in his interview with the psychiatrist. In either case, it is well established that drug addiction is not a mitigating feature unless it can be clearly related to matters outside an offender's control, such as where an offender has become addicted to drugs in the course of medical treatment. The drug use in this case is more likely to be the result of self-indulgence although I do not discount the possibility that the use of drugs at a young age arose from an attempt to escape a dysfunctional and brutalised childhood. He also told the psychiatrist that he was using anabolic steroids on and off from 2002 and that he would get a "bit of 'roid rage'". He told Dr Eagle that his steroid use caused mood swings. There was some evidence in the trial, particularly in the form of recorded telephone calls, that supported the proposition that Farhad's mood was unpredictable and that he became enraged with little warning and over the smallest sight. 5. Dr Eagle diagnosed Farhad with a complex post-traumatic stress disorder and substance use disorder as well as an anti-social personality disorder. The latter diagnosis was based on a "pervasive pattern of disregard for the rights of others". He was exposed to severe violence and death from a very young age and the repeated exposure "re-traumatising him and thus exacerbating existing trauma related symptoms". The report suggests that the offender's experience of trauma has "altered his perspective of the world, such that he views the world as an unsafe and terrifying place" and resulted in "persistent feelings of fear and anger". The offender's life experiences and the psychological conditions resulting from this trauma have played a role in a life caught in the cycle of violence and criminality. 6. I accept that the experience of trauma may have altered Farhad Qaumi's perspective of the world. While the seriousness of the offending means that nothing can excuse the choices that he has made, his early life as a traumatised child and the post-traumatic stress disorder that has resulted is an important consideration in settling on the weight to be afforded to general deterrence and in determining whether his moral culpability is diminished as a result. [29] 7. The judgment of Carruthers J in R v FQ confirms the significant parts of the offender's personal and psychiatric history. In particular, there was a report before the Court (in 1998) that Farhad was "exposed to horrific and extensive war related trauma and carnage". Reference was made to the death of his friend in the school bombing. His post-traumatic stress disorder was said to be "lessening". A worrying aspect of the 1998 report was that some of his personality traits were "described as almost psychopathic in nature". 8. 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. [30] 9. 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. [31] 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. [32] 10. Farhad's subjective case presents a conundrum. I accept that his exposure to violence in Afghanistan and his dislocated family life caused the psychiatric conditions described by Dr Eagle. I accept that this explains his conduct and diminishes his moral culpability to a degree. I accept it plays a role in assessing the extent to which general deterrence should guide the proper exercise of the sentencing discretion. However, the evidence also creates the kind of situation in which the offender's mental condition or personality disorder gives rise to concerns as to his capacity to rehabilitate and the danger he presents to the community. Accordingly, the protection of the community must play a significant, if not dominant, role in the assessment of an appropriate sentence. [33] Mumtaz Qaumi 1. Mumtaz Qaumi tendered a psychiatric report under the hand of Dr Olav Nielssen dated 29 March 2017. He also tendered testimonials from his wife (Wasillah Qaumi) and his mother (Gulmaki Qaumi). 2. Mumtaz is 32 years old, married with 4 children. The youngest child was born after the offender was taken into custody. Mumtaz was born in Afghanistan and spent his early childhood in the midst of the Afghan war. The family fled Afghanistan to India and eventually Australia, after his father was kidnapped and a number of his mother's relatives were killed. [34] 3. Dr Nielssen diagnosed Mumtaz with an anxiety disorder, based on a "history of typical panic attacks, and features consistent with post traumatic anxiety" and a depressive illness, in partial remission. [35] The report lists a number of factors contributing to his development of anxiety and depression, including a family history of psychotic illness, the effects of exposure to traumatic events in early childhood, the hardship he experienced as a refugee and "the effects of witnessing the immediate aftermath of the homicide of his aunt by his mentally ill cousin". [36] The report suggests the offenders clinical condition meant that there was an "increased perception of threat associated with having an anxiety disorder" and noted, the alleged "real threats from the deceased and his associates". [37] The offender also reported what appeared to be "realistic anxiety for his own safety, based on having received plausible threats." [38] I interpolate that these findings are particularly relevant to the manslaughter charge and conspiracy to murder Mohammed Hamzy but are also relevant to the series of shootings directed against other members of the BFL Bankstown. On the other hand, Joseph Antoun – the victim of the most serious offence – represented no threat, real or imagined, to the offender or his family. He was killed for money. 4. While Mumtaz Qaumi denies any involvement in the criminal activity of the Brothers For Life group, he asserts that his involvement in the offences was prompted after receiving a phone call from his brother Farhad, who believed his own life was threatened. The offender allegedly returned to Sydney to "help protect his brother". [39] This must be a reference to the Hamzy shooting. 5. The report states the offender felt "a lot of sympathy for the victim and his wife" and stated that he could "feel their pain". [40] It is not clear whether this relates to the Hamzy or the Antoun shooting. In any event, in light of the conduct of the proceedings, and the hearsay nature of this assertion, I am unable to place very much, if any, weight on this self-serving expression of contrition although it may well be genuine. 6. Mumtaz reported regular use of cannabis between 2010 and 2013, which he explained helped him to control his anxiety. However, he denied any substance use at the time of the commission of the offences. [41] The offender has been in the past, and remains, medicated for this anxiety disorder with a combination of an antidepressant and a sedating antipsychotic medication. [42] 7. Wasillah Qaumi said that Mumtaz was a very supportive husband and a "great" father. They met in the city of Quetta in Pakistan in 2007. Mumtaz remained with her as she waited for her visa to be approved to come to Australia, despite suffering from anxiety attacks and living in "constant fear of being kidnapped and held for ransom" as a "foreigner". They arrived in Sydney in 2008 and Mrs Qaumi said that in 2011 Mumtaz's physical health deteriorated due to a damaged disk in his lower back. He was in a great deal of pain. This "took a toll on himself and his family, as he started changing". Mrs Qaumi reported "mood swings" from medication prescribed, regular use of marijuana (to "ease the pain"), and "regular panic attacks". Mrs Qaumi reported her husband was "depressed and rarely left the house to engage in social activity". By 2013, her husband was happier, began socialising and purchased a kebab shop in Erina. However, by November of that year, she noticed a "change in his behaviour" as he appeared "in constant fear of his and his family's safety". Upon hearing his brother Jamil had been arrested, Mumtaz told his family that "there were people who wanted to harm him and his brothers" and suggested they move to Brisbane as Sydney was "no longer safe". Mrs Qaumi reports that they were in "the process of moving" when Mumtaz was arrested. 8. Gulmaki Qaumi is the mother of all three offenders. She described the "horrifying conditions" she and her children were subjected to during their time in Afghanistan. She describes how she still remembers her children's "hearts thumping" in her ears and how they would "shiver, scream and cry in fear each time a bomb hit or shots were fired nearby". After escaping to India, day-to-day life was very difficult for the family. Mrs Qaumi noted that there were no counselling services available to them at this time. Life remained difficult when the family arrived in Australia in 1993 and Mrs Qaumi described the impact her husband's depression had on her children. Mrs Qaumi described how although they "survived the war", they "remained impacted by it". 9. Mumtaz has a criminal history. [43] This commenced in the Children's Court where he was placed on a control order for offences of detain for advantage and robbery committed when he was 16 years of age. As an adult, he had numerous driving offences and some serious offences of violence for which he was sentenced to imprisonment. This included demanding property by force, stealing from the person and assault police, a series of crimes for which he was sentenced to more than two years imprisonment in 2005. He had no convictions between 2006 and the commission of the present offences. That gap in his criminality is of some significance. However, since his arrest, he was sentenced to possession of a mobile telephone and SIM card while being in custody and sentenced to a term of imprisonment. While Mumtaz Qaumi's criminal history disentitles him to the leniency that would be afforded to a first offender, it does not constitute an aggravating feature or engage the principles discussed by the High Court in Veen (No 2). 10. In Mumtaz Qaumi's case, the psychiatric evidence and the history of trauma and dislocation are of some significance to an assessment of the proper sentence. [44] They receive support from the evidence of his wife and mother. The psychiatric issues pre-date the commission of the current offences. I accept Dr Nielssen's conclusions as to the connection between his anxiety disorder and the offences arising out of the dispute with BFL Bankstown. This impacts on his moral culpability and the weight to be afforded to general deterrence. I am not satisfied on balance that his time in custody is more onerous due his mental health issues although I accept Dr Nielssen's assessment that the conditions of his incarceration are very onerous, a matter which became a focus of attention late in the course of the sentencing hearing. 11. The long gap in Mumtaz's criminal history (2006-2013), the support he has from his wife, the incentive to reform represented by his infant children and Dr Nielssen's opinion that his anxiety disorder is "generally quite responsive to treatment" lead me to conclude (as did Dr Nielssen) that Mumtaz Qaumi has "reasonable prospects for longer-term rehabilitation". Jamil Qaumi 1. Jamil Qaumi tendered a report prepared by a psychologist (Ann-Marie De Santa Brigida) and testimonials from his older sister and his wife. 2. Jamil was born in 1992 and was 21 years old at the time of the offences and 25 years old at the time of sentence. He married shortly before the offences. Apart from a common assault and failing to leave the restricted area of a railway station, for which he was fined a total of $700, he has no prior convictions. The absence of a significant criminal record is a mitigating feature. However, since being taken into custody he has been sentenced for assaulting two prisoner officers by throwing water on them, pretending it was urine. He received a two month sentence for that offence. 3. He was born in India and so was not directly exposed to the horrors of the Afghan war. However Ms Brigida refers to the possibility of "inter-generational transmission of trauma". Given the post-traumatic stress suffered by his older brothers and father, I am prepared to accept this possibility although the report does not suggest any particular link between that vicarious condition and the offending. Of more significance is his exposure to violence in the form of a "drive-by" shooting when he was 13 years of age and his "allegiance" to his brothers. He has a history of substance abuse. 4. Jamil's sister (Shaista Amin) described Jamil as "very family oriented" and a "very caring person". When Mrs Amin was diagnosed with gestational diabetes during her fifth pregnancy in 2013, Jamil "took responsibility" for her children and helped Mrs Amin with domestic life. Mrs Amin states that Jamil "made sure my [her] kids were always safe and happy". She also described Jamil going "out of his way" to help an elderly neighbour suffering from cancer. Mrs Amin believes that Jamil committed the offences for which he is now to be sentenced "out of fear" triggered by a drive-by shooting at their home in 2006. She thinks Jamil feared that he would "lose family members for no reason". Mrs Amin believes her brother is "deeply remorseful" for "his involvement in the death of Mahmoud Hamzy" and describes how he "sincerely regrets his offences and what he has put the victims, his own wife and our [the] family through". 5. Jamil's wife (Farishta Qaumi) described a supportive husband and a man that had "a lot of love for his family and everyone around him". The pair married in Islamabad, Pakistan in 2013 and remained there for 5 months until Farishta's Australian visa was granted. Mrs Qaumi described "behavioural changes" in the weeks before his arrest. Her husband became "over protective … fearing something that he never spoke about". Mrs Qaumi stated that she and Jamil's family did not attend the trial as "Jamil thought it wasn't safe". Mrs Qaumi said that her husband "regrets his involvement in the death of Mahmoud Hamzy" and that he "feels terrible about what happened". 6. I accept the evidence of Jamil's sister and wife and the opinions stated by the psychologist. I accept that Jamil was under the influence of his elder brothers, particularly Farhad, and that he became involved in the BFL Blacktown as a result of that connection. I am not prepared to act on the hearsay expressions of contrition and remorse. In spite of his offending since being incarcerated, misgivings arising from the various counts of contempt and the grave offending for which he is to be sentenced, his youth and family support satisfy me that he has some prospects of rehabilitation. Approach to the subjective cases 1. 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. 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. 2. Hassnah Hamzy is the sister of Mahmoud Hamzy. She provided a victim's impact statement that explained her whole family's loss and grief. [45] She told me her brother was a beautiful soul who wouldn't hurt a fly and that he was killed by people who didn't even know his name because he was in the wrong place at the wrong time. Since her brother's homicide, Hassnah has trouble coping and becomes very emotional and breaks down over little things. She says she will never be the same person she was before. She said her parents have changed and that nobody in the family will ever be the same. The family treats their lives as "before" and "after" the killing of Mahmoud. Not only have they lost their loved one, but their shared memories have been destroyed because of the way Mahmoud was killed. The family no longer enjoys family trips away, and does not celebrate religious holidays because Mahmoud's absence is so palpable and painful. They cannot bear it. 3. Omar Ajaj sustained two gunshot wounds, one to the right upper leg in the thigh region and one to the right hand side of his abdomen. A bone in his right leg was fractured. Mr Ajaj was treated by paramedics, taken to Liverpool Hospital and was not discharged until 5 November 2013. There was no issue at the trial, and the jury found, that his injuries constituted grievous bodily harm. 4. Michael Odisho suffered gunshot wounds described earlier. He required surgery and appears to have made a good recovery. 5. In addition to the physical injuries suffered by Mr Odisho, his mother was present when her son was shot. She gave evidence in the trial and was obviously distressed and greatly affected by the experience of a gunman coming to her home and shooting her son. 6. The injuries to H (an innocent fourteen year old child) were potentially life threatening. Many hundreds of shotgun pellets were left in her body and doctors were unable to remove all of the pellets. This resulted in lead poisoning that may affect her ability to conceive a child or to carry a pregnancy to full term. Her demeanour when giving evidence, while courageous and at times feisty, showed that she was traumatised by the incident. A number of other people, including the proposed target and his family, were present when the shotgun was fired at or into their home. Again, while no evidence was adduced, it is reasonable to assume that being exposed to a shooting attack in the place they were entitled to feel safe has had an impact on each of them. 7. In the Chokolatta Café shooting, two men received shotgun injuries. Abdul Abu-Mahmoud suffered "injuries caused by shotgun pellets and associated shrapnel". These injuries were to the back of his head, neck and shoulder. The injuries were not life threatening but required surgical intervention to remove the shotgun pellets. Hassan Souid received injuries to the back of the scalp, right biceps and the back of the shoulder. [46] 8. Four victim's impact statements were read explaining the devastation wrought on the family of Joseph Antoun. [47] His partner, Teagan Mullins, read her own statement and also those of her two daughters. His brother, Nemer Antoun, also read a statement. 9. Ms Mullens spoke of the bond between Mr Antoun and the twins and how Joe would come home every night to spend time with the girls. She has been left financially ruined and emotionally traumatised. She gave an emotional account of watching her husband die and her little girls waving as the ambulance took their father away. She suffers panic attacks and her health has been greatly affected. She and Joe were to get married the year after he was killed. The twins were to be the flower girls at the wedding. They will never have their father at school assemblies when they receive awards and will not have the example of their parents' loving relationship to learn from and to emulate. 10. The simple and moving testimonies of the little girls spoke for themselves. They miss their Dad who gave the "best cuddles", always let them choose the movies and came home to put them to bed each night. They miss him in the morning and when they come home from school. They said it is not fun to see their mum "all emotional" when they visit their Dad at the cemetery. 11. Nemer Antoun spoke of his brother who was nicknamed the White Rooster. He remembers jumping the fence with Joe to watch the Rabbitohs. He spoke of the family bond, the weekly visits Joe would make to his elderly mother and the loss to the twins. He spoke of Joe's relationship with the Thungutti community near Kempsey where Joe was welcomed as a brother. The people there held a service for Joe after he died. Joe was murdered in cold blood in front of his wife and children and Nemer asked "For what?" and "who has the right to kill for no reason and take a man from his children or a boy from his mother?" Nemer is on a crusade for justice. 12. I am grateful to the family of Joseph Antoun for their courage and openness in reading their statements to the Court. What you have told me will be taken into account in accordance with the law. 13. The Crown made an application under s 28(4) of the Crimes (Sentencing Procedure) Act which provides: "A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community." 1. The difficulties in the application of this section, in the face of the fundamental principles that all human life is sacred and that all people are equal under the law, have been discussed in a number of cases. [48] In R v Halloun McCallum J said of s 28(4): "I would construe the new provision as an important mechanism for ensuring that the evidence of family victims is placed before the court to give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way. In that way, the provision serves the purposes of sentencing stated in s. 3A of the Act, one of which is to recognise the harm done to the victim of the crime and the community." 1. That comment was approved by the Court of Criminal Appeal in Sumpton v R, an appeal from a sentencing decision in which I applied her Honour's statement of principle. On that basis, I consider it appropriate to take into account the victim's impact statements of Hassnah Hamzy and the family of Joseph Antoun in determining the appropriate penalty on the basis that the harm done to them is an aspect of harm done to the community. PRINCIPLES of sentencing 1. The common law has developed a unified set of principles guiding the exercise of the sentencing discretion. Those principles are well established and it is not necessary to set out each and every one of them in order to satisfy the primary purpose of a judgment (or remarks) on sentence, which is to explain to the offender, the community and those affected by the crimes why a particular sentence is being imposed. Legislation in relation to sentencing makes the task more technical and complex, especially in a case like this where there are so many different offences. Even so, sentencing ought not to descend into the application of "some sort of checklist". [49] For example, I do not propose to go through all of the offences, addressing each and every aggravating and mitigating factor in s 21A of the Crimes (Sentencing Procedure) Act 1999. It will be clear from these remarks the matters that are aggravating and those that are mitigating. Even so, it is appropriate that I set out some of the important legal principles and to explain how I have applied those principles to the particular facts and circumstances of the present case. It is also necessary to attempt to comply with the technical aspects of the sentencing legislation. Purposes of punishment 1. I must always keep in mind the purposes of sentencing and punishment. The common law principles that underpin those purposes now find, in New South Wales, statutory voice in s 3A of the Crimes (Sentencing Procedure) Act 1999. They are: 1. To ensure that the offender is adequately punished for the offence; 2. To prevent crime by deterring the offender and other persons from committing similar offences; 3. To protect the community from the offender; 4. To promote the rehabilitation of the offender; 5. To make the offender accountable for his actions; 6. To denounce the conduct of the offender; and 7. To recognise the harm done to the victim of the crime and to the community. 1. 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. Aggravating and mitigating features 1. As I have said, I will not go through each offence to check off the relevant aggravating and mitigating features identified in s 21A. However, given the abundance of litigation that s 21A has generated, I should say something general and brief about the operation of that provision. Where a matter identified as an aggravating feature in s 21A(2) is either an element of the offence or where it is inherent in that offence, it ought not to be "double counted" as an "aggravating feature" under the statute. A simple example is that the aggravating feature in s 21A(2)(c) – the use of a weapon – could not be considered to be an aggravating feature in relation to an offence of possession of a weapon or an offence of firing a firearm at a dwelling. 2. 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. 3. 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. 4. 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. 5. 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". [50] 1. 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." [51] 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. 2. 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. 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. [52] The principle is not restricted to situations where the offenders are charged with the same offence. [53] 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. [54] 2. In the present case, the parties tendered a body of material to allow me to give effect to those principles. [55] 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. [56] 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. Totality, concurrence and accumulation, aggregate sentencing 1. The first step in this complex exercise is to determine an appropriate sentence for each individual offence. It is then necessary to make decisions about the extent to which those sentences should be ordered to be served concurrently or cumulatively. If the sentences are accumulated, it is necessary to stand back at the end of the process and determine whether the overall sentence is correct having regard to the principle of totality. 2. This process is made easier by the provision in section 53A of the Crimes (Sentencing Procedure) Act. That section provides that a sentencing Judge "may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each." If the Court imposes an aggregate sentence, it "must indicate to the offender" that an aggregate sentence is to be imposed and the sentence that would have been imposed for each offence had separate sentences been imposed. [57] 3. In Cahill v R [58] and Glare v R, [59] the requirement in s 53A(2)(b) was considered. It is necessary to indicate the individual sentences that would have been imposed "after taking into account such matters as are relevant under part 3 or any other provision of this Act". This means that I must indicate the putative sentences that would have been imposed having considered all relevant principles of sentencing, taking into account the aggravating and mitigating features under s 21A and any discounts (such as the reduction for the offers to plead guilty to manslaughter in Farhad and Jamil Qaumi's cases). [60] 4. Section 44(2C) of the Crimes (Sentencing Procedure) Act provides that it is not necessary to indicate the individual non-parole periods that would have been imposed had an aggregate sentence not been imposed. [61] However, in those counts to which a standard non-parole period applies, s 54B(4) requires me to indicate the non-parole period that I would have set. The insertion of s 45(1A) in 2016 provides a possible discretionary exception to this requirement. It is difficult to read the two provisions in conformity with one another and I propose to indicate a non-parole period in most cases that would result from the application of s 44 and in the absence of a finding of special circumstances. 5. In a case such as the present, these provisions create what seem to be unnecessary complication and technicality but I must do my best to comply with them. Subject to a determination of whether a life sentence is to be imposed on Farhad or Mumtaz Qaumi for the Antoun murder, I propose to impose an aggregate sentence in relation to all offences except for the contempt charges against Jamil and Mumtaz Qaumi. I propose to impose fixed term sentences for the contempt charges and to commence the aggregate sentence at the conclusion of the sentence for those offences. I do this because the contempt offences are separated by time and circumstance from the other offences. It is also appropriate that the Court be seen to impose a clear and separate punishment for offences involving contempt in the face of the Court. 6. 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. [62] 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". [63] 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. Offer to plead guilty to manslaughter in respect of the Hamzy shooting 1. The parties agreed that on 15 February 2016, Farhad Qaumi offered to plead guilty to the manslaughter of Mahmoud Hamzy. This was part way through a pre-trial hearing that commenced in November 2015 and concluded in April 2017. It was a late offer to plead but well before the trial actually commenced. The offer was not accepted by the prosecution but was vindicated by the jury's verdict of not guilty of murder but guilty of manslaughter. There was no offer to plead guilty to any other charge. Had the offer been accepted, the trial would have proceeded over a number of months but there would have been some saving in court time. It had some, if rather limited, utilitarian value. 2. The parties agreed that on 16 March 2016, Jamil Qaumi made a similar offer. Again, there was no offer in relation to any other charge and the Crown rejected the offer. This offer to plead guilty was even later than that made by Farhad Qaumi. Its utilitarian value was also limited but it had some capacity to save court time. 3. A number of cases have considered the approach that should be taken by a sentencing Judge when the prosecution rejects an offender's offer to plead guilty to an offence for which they are ultimately to be sentenced. [64] As Hidden J said in R v Cardoso it would be "unacceptable" "if the measure of leniency afforded to an offender [who was] prepared to plead guilty to a lesser charge fairly available on the evidence, would depend on the Crown's attitude." [65] 4. I intend to reduce the sentences of Farhad and Jamil Qaumi in relation to the manslaughter of Mahmoud Hamzy by about 10% based on their late offer to plead guilty. Commencement date 1. The parties agree that any sentence imposed on Farhad Qaumi should commence on 9 January 2014, the day he went into custody in relation to these or related matters. 2. Mumtaz Qaumi went into custody on 9 January 2014. However, he was sentenced in 2015 for an offence of "inmate possess mobile phone/SIM card etc". [66] That sentence was reduced on appeal to the District Court and replaced by a sentence of seven months with a non-parole period commencing 14 October 2015 and expiring 13 April 2016. This creates a complication in terms of the commencement date of the sentence. The Crimes (Sentencing Procedure) Act provides a wide discretion as to the commencement date. [67] Considering principles of totality, the offence for which Mumtaz was sentenced was a very minor one in the context of the current sentencing exercise. However, it is separate offending and there should be some very small degree of accumulation. I propose to order that the sentences imposed on Mumtaz Qaumi will commence on 9 February 2014. That is to say, there will be an accumulation of one month but the earlier sentence will otherwise be subsumed by the current sentences. 3. Jamil Qaumi went into custody on 7 November 2013. On 26 May 2017 he was sentenced to 2 months for two counts of common assault involving throwing a milk carton containing a substance at two corrective services officer. [68] The suspicion was that the substance was urine (and that is what the charge sheet says) because Jamil yelled the words "how do like the taste of piss you dog cunt" after throwing the carton. However, the agreed facts state that the substance was water. While the Crown fairly concedes that I could make this sentence wholly concurrent, in my view it should be marked by some degree of extra punishment. I take the same approach to that adopted in Mumtaz's case. The commencement date for the first of the contempt offences will be 7 December 2013. Conditions of incarceration 1. At the conclusion of the two day sentencing hearing on 7 April 2017, the offenders asked for time to obtain evidence of their conditions of incarceration. The matter came back before the Court on 26 April 2017. An affidavit of Jamil Qaumi was tendered. [69] The Crown did not object to the affidavit and did not seek to cross-examine Jamil on its contents. [70] The Crown and counsel for Farhad and Mumtaz Qaumi then sought more time to obtain additional evidence in relation to this issue. The matter was adjourned until 23 May 2017 when the issue was litigated over many hours, with the Court sitting well beyond 4:00pm to ensure that the evidence and submissions on sentence might, finally, come to an end. [71] The evidence 1. Affidavits by Farhad and Mumtaz Qaumi were read and marked as exhibits and each was cross-examined. [72] Three Corrective Services Officers provided affidavits, gave evidence and were cross-examined. [73] 2. The Crown Prosecutor also sought to tender a statement of Detective Inspector Patton (and a folder full of attachments) and there was a lengthy legal argument as to the admissibility of large parts of the document. [74] I admitted the statement provisionally, restricted cross-examination to certain parts and subsequently ruled parts of the document to be inadmissible. The statement provided extracts of recorded telephone conversations involving one or more of the three offenders. The material fell into three broad categories. 3. First, evidence of the offenders describing their custodial conditions in uncomplaining, if not glowing, terms. For example, on 2 December 2013 (before he went into custody on this occasion), Farhad told his mother "we call it Silverwater Hotel … they are now in a hotel mom". Similarly, on 12 March 2015, Mumtaz agreed with another inmate that being "in the main" [part of the gaol] was like a "five star retreat". There was also a conversation in which Jamil told a friend that he trained twice a day. This type of evidence was obviously relevant and admissible on the issue of whether the custodial conditions were so onerous that it might be treated as a reason to ameliorate the length of the sentence. However, the evidence is not of great significance. The comments made by Farhad Qaumi were made before he was in custody and, given the timing of events, are open to the interpretation that he was trying to comfort his mother after the arrest of her youngest son (Jamil). The comments of Mumtaz and Jamil appeared to have been made when they were in the "main" part of the gaol and had access to the type of facilities that they were generally denied while on remand. 4. The second broad category of evidence led through Detective Patton involved the offenders discussing the commission of offences while in custody. This included offences of violence (Farhad and Mumtaz discussing stabbing another inmate) and bringing contraband into the gaol (Jamil discussing a friend bringing steroids into the prison). The Crown's position was that this evidence supported its case that the offenders were in onerous custodial conditions as a result of their own misconduct. The offenders objected on the grounds that there was no evidence that these conversations were brought to the attention of prison authorities and no evidence that they played any part in the offender's classification or designation that led them to be held in the conditions of which they complained. In evidence, Inspector Patton said that he caused some of the material to be brought to the attention of prison authorities. However, he could not say who he told, and his evidence was imprecise as to what was communicated. He agreed that he did not provide (or cause to be provided) the recordings themselves to the prison authorities. There was no clear or direct evidence from the Corrective Services Officers (or otherwise) to support the proposition that these recordings played any role in the classification of the offenders as high security inmates or as inmates who should be segregated (either for the safety of others or their own protection). The timing of when the offenders received their various classifications and designations does not support the contention that the information provided by Mr Patton played any part in these classifications. While the evidence is before me, it is entitled to little weight and I must be cautious not to allow extraneous information concerning other wrongdoing, or threatened wrongdoing, to influence an assessment of an appropriate sentence. 5. The third aspect of Detective Patton's evidence was that the recorded 'phone calls (or some of them) were made on contraband mobile telephones. Mumtaz Qaumi was convicted in the Local Court of being an inmate in possession of a mobile telephone [75] and Farhad Qaumi had a disciplinary charge of possessing "a mobile" as well as a charger and SIM card. As with the second broad category of evidence, there was no evidence of any link between these breaches and the conditions of custody in which the offenders are held. Again, while taking the matter into account in assessing the prosecution's submission that the offenders are the authors of their own fate, I am unable to give this matter very much weight. 6. I generally accept the evidence given by the three offenders. Jamil Qaumi's evidence was not challenged in cross-examination and I found Mumtaz and Farhad Qaumi to be reliable in their account of their custodial conditions. Some of what they said was supported by the evidence of the Corrective Services Officers. I am conscious of the fact that they may have exaggerated the onerous nature of the conditions to some degree but the important parts of their evidence were worthy of credit. I accept that each of the offenders has spent long periods in virtual isolation, or solitary confinement, that they have not had access to programmes, gym equipment and, most significantly, access to the outside spaces. I accept they are subject to strict security during legal visits and when they are transported from gaol to gaol or from gaol to court. It is difficult to reconcile some of the evidence of their restricted ability to have visits with the records tendered by the Crown. However, overall, I accept that these conditions are more onerous than is generally the case. 7. I also generally accept the evidence given by the officers of the Department of Corrective Services although there may have been an inclination to downplay the harshness of the conditions. There was also a deal of general evidence as to how the system of classification works without much detail as to how it applied to the individual offenders. Still, each of the officers was an honest and straightforward witness. 8. Philip Hugil is the Director of Classification and Placements for the Department. [76] He explained the classification and designation of the three offenders and the grounds upon which they have been given those classifications. He explained the role of the Commissioner and the review process. He was unable to provide evidence as to the material that led to the particular classification of the three offenders. However, in general, it is based on an assessment of the risk that a prisoner poses to other inmates, to the staff at the gaol and to security issues within the gaol. Farhad was classified A-1 and Jamil and Mumtaz classified A-2. In addition, each was designated as an "Extreme High Security" inmate. This means that the Commissioner has determined that they represent an extreme danger to other people and to the good order and security of a correctional centre. Each received this designation on the basis of their "criminal antecedents and behaviour in custody". Those are the criteria, but Mr Hugil was unable to say what the specific basis of this designation was in each case because those decisions were taken before he took over his position. Mr Hugil agreed, on the basis of documents shown to him, that Mumtaz Qaumi was kept in a "non-association cell" in spite of his request not to be placed in protection. 9. Thomas Woods is the Acting Governor of the Silverwater Correctional Centre. [77] This is where Jamil and Mumtaz Qaumi have been incarcerated for a large proportion of their remand period. It is also where Farhad was detained during the trial. Mr Woods described the conditions within the facility and gave evidence of the fact that each offender has been, at times, held in segregation. This means they have limited ability to interact with other inmates. His affidavit asserted that "[Jamil] will still be able to interact verbally with his brothers as well as other inmates housed in the same location via adjoining yards." However, he agreed in cross-examination that any such interaction would be "by yelling over a very high [about 3 metres] wall." There is no "face to face contact". This is an example of the tendency to understate the harshness of the conditions. On reading Mr Woods' affidavit, I formed the impression that the offenders could have face to face, human contact with one another. That was a false impression. 10. Mr Woods agreed that there was no exercise equipment and no employment or educational opportunities. Mr Woods said that Jamil was in the Silverwater gaol because his solicitors requested he be available for legal visits. Otherwise, he may have been transferred to a gaol outside of Sydney. However, because of his classification, designation and the non-association status, the conditions would have been similar. In his affidavit, Mr Woods said that Jamil was held in segregation because of an assault on two inmates. [78] This was not correct. At the further hearing on 13 June 2017 (concerning Jamil's Qaumi's post incarceration assault conviction), it was indicated that the assault involved throwing water (believed to be urine) on two prisoner officers. [79] Mr Woods confirmed that his gaol is a remand centre and that, after sentence is imposed, Jamil and Mumtaz will be transferred to another gaol. 11. Geoffrey Poulsen is the Senior Assistant Superintendent of the High Risk Management Correctional Centre at Goulburn. [80] He described the general conditions of this facility, commonly known as the "Supermax". This is where Farhad Qaumi has been housed for a good deal of his remand period. During the trial he was held at Silverwater. Mr Poulsen was a blunt but impressive witness. He conceded a number of matters suggesting the conditions at the gaol are very onerous and the opportunity for interaction with other inmates limited. Things like the use of exercise facilities, visits by friends and relatives and the use of the telephone are highly regulated. He disagreed that Farhad Qaumi only had access to the exercise yard for one hour per day. He did not accept that A1 prisoners like Farhad were unable to interact with AA prisoners (generally, it seems, people charged with or convicted of terrorism offences). Farhad Qaumi was on the "top level" of entitlements as a result of his good behaviour. This meant for example, he was able to book time to use a chin up bar and basketball court. Mr Poulsen was unable to say when, if ever, Farhad Qaumi would get out of the Supermax. The issues and legal principles 1. This evidence and the submissions that followed gave rise to a number of legal and factual issues relevant to the sentencing discretion. 2. The first is that the courts are reluctant to interfere with, or second-guess, the management of prisons and inmates by those charged with the responsibility of administering them. [81] In Kelleher v Commissioner, Department of Corrective Services McInerney J said at [11]: "The exercise of powers relating to prisoner classification and separation, the transfer from one part of a prison to another, transfers between prisons, conditions on visits or access to certain conditions or facilities such as education, recreation and supply of condoms have all been characterised as administrative and managerial in nature rather then punitive and judicial. Consequently, they have been held not to give rise to any right, interest or legitimate expectation enforceable by judicial review in the ordinary courts. For example, see Smith v Commissioner of Corrective Services (1978) 1 NSWLR 317; Walker v The Queen (1992) 60 A Crim R 463; Gray v The Queen (1990) 45 A Crim R 364; and Prisoners A-XXX inclusive (1935) 38 NSWLR 622." 1. The second is that a sentencing Court is entitled to take into account the conditions of incarceration in which an offender has been, is being, or will be held. If those conditions are harsher than those of the general prison population, it is a matter that may provide a basis for reducing the sentence to some degree. [82] However, there must be evidence of the conditions upon which the Court can safely act. [83] A sentencing judge cannot assume that the conditions will be harsher based on the category of inmate into which the offender fits. 2. Third, in the absence of clear evidence, it is difficult for a sentencing Judge to predict the conditions in which the offender might serve the future part of the sentence. [84] That is true in this case. There is nothing to suggest that the offenders will be placed in less onerous (and more humane) conditions in the near future. However, according to the evidence, there is some opportunity for their conditions to change depending on their behaviour while in custody. However, many of the matters that determine their classification, designation and non-association status are unlikely to change and are beyond their control. This is partly because, as Farhad Qaumi put it in evidence, "I'm at war". [85] 3. Fourth, where the offender's conditions of custody result from their own misconduct while in custody, the offender cannot rely on those conditions to any significant degree. For example, if the offender has committed acts of violence towards other inmates and this causes them to be held in segregation, the offender cannot be heard to complain or expect any reduction in sentence as a result of those conditions. [86] 4. Fifth, "there is no automatic conclusion or formula to be applied in the absence of evidence in a particular case". [87] In fact, there is no automatic conclusion or formula at all. Each case must be determined on its own facts. It is a matter that may be taken into account but it does not result in some mathematical reduction in an otherwise appropriate sentence. 5. Finally, the Crown submitted that the conditions of incarceration would only be taken into account as a "special circumstance" justifying a small reduction in the length of the non-parole period. [88] According to the Crown's submission, this meant that if I determined to impose a life sentence, the matter could not be taken into account at all. [89] When this proposition was tested by taking an extreme example, the Crown maintained that the conditions in which an offender was to be incarcerated was "not a relevant consideration" in determining whether a life sentence under s 61(1) Crimes (Sentencing Procedure) Act should be imposed. [90] As I said in the course of the argument, I am unable to accept that submission. I will explain my approach to s 61(1) later in this judgment. In any event, the submission that the matter is only (or predominantly) relevant to the assessment of the non-parole period is contrary to the judgment of Howie J in Durocher-Yvon at [20]: "Although the question in that case [was] concerned with whether there should have been a finding of special circumstances, the same considerations seem to me to apply to the question of whether the head sentence should be reduced." 1. I accept that the conditions in which each of the offenders has been held is harsh, perhaps unduly so. They have extremely limited opportunity to interact with other prisoners, are kept locked in their cells for extended periods, have little or no access to education and employment and are accommodated in small cells with very limited opportunity to access outside space. 2. The reason for this is twofold, and perhaps in Jamil Qaumi's case threefold. First, the offenders are classified as "high risk management" prisoners. This is the result of the number and nature of their criminal offending. While this is a matter within the province of the prison authorities, I accept Senior Counsel's submission that there is element of "double punishment" at play. Second, they have been placed on the highest form of protection. This is partially because the offenders are "at war" [with the BFL Bankstown] and because they are perceived to represent a danger to other inmates and to the good order of the prison. It is not, as Senior Counsel for Mumtaz put it, a matter of "management expediency". [91] However, it is also because the authorities are concerned for the safety of the offenders themselves and because there are limited places where they can safely be accommodated. It is not because of any malevolent act of the offenders committed since they were taken into custody. While not perfect, the offenders' disciplinary records since going into custody are not terrible (although since writing this part of the judgment it has emerged that Jamil Qaumi assaulted some prisoner officers). The third reason is that Jamil Qaumi's lawyers requested that he be kept at Silverwater (MRRC) in order to facilitate visits during the currency of the criminal proceedings. Resolution 1. 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". [92] 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. SENTENCE for jamil qaumi 1. I turn to the sentence to be imposed on Jamil Qaumi. 2. In almost every case, the Crown has submitted that it is appropriate to impose the maximum penalty. [93] This submission did not distinguish between the offenders and, rarely, the offences. 3. 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. [94] 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. [95] The answer was "no". [96] 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. 4. 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". 5. 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. [97] 6. 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. 7. As I have said, I intend to impose separate sentences for the three contempt charges and accumulate upon those sentences an aggregate sentence for those offences in relation to which Jamil Qaumi was found guilty by the jury. 8. To comply with relevant statutory provisions and case law following Muldrock v The Queen, it is necessary to do two things before proceeding to sentence. I must indicate whether those offences carrying a standard non-parole period fall within the middle range of objective seriousness and must provide an indicative sentence in relation to each of the offences. 1. In relation to count 1, the manslaughter of Mahmoud Hamzy, taking into account the matters on the Form 1 and a discount of around 10% for the offer to plead guilty, I indicate a sentence of 12½ years. 2. In relation to count 2, grievous bodily harm of Omar Ajaj, the offence is in the middle range of objective seriousness and I indicate a sentence of 8 years with a non-parole period of 6 years. 3. In relation to count 3, conspiracy to murder Mohammed Hamzy, the offence is in the middle range of objective seriousness and I indicate a sentence of 10 years with a non-parole period of 7½ years. 4. In relation to count 4, soliciting the murder of Michael Odisho, the offence is in the middle range of objective seriousness and I indicate a sentence of 10 years with a non-parole period of 7½ years. 5. In relation to count 5, the attempted murder of Michael Odisho, the offence is in the middle range of objective seriousness and I indicate a sentence of 10 years with a non-parole period of 7½ years. 6. In relation to count 7, soliciting the murder of Masood Zakaria, the offence in the middle range of objective seriousness and I indicate a sentence of 10 years with a non-parole period of 7½ years. 7. In relation to count 9, grievous bodily harm of H with intent, the offence is above the middle range of objective seriousness and I indicated a sentence of 10 years with a non-parole period of 7½ years. 8. In relation to count 10, soliciting the murder of Abdul Abu-Mahmoud, the offence is at, or just above, the middle range of objective seriousness and I indicate a sentence of 12 years with a non-parole period of 9 years. 9. In relation to count 11, the attempted murder of Abudul Abu-Mahmoud, the offence is at, or just above, the middle range of objective seriousness and I indicate a sentence of 12 years with a non-parole period of 9 years. 10. In relation to count 13, the attempted murder of Khalil Khalil, the offence is at, or just above, the middle range of objective seriousness and I indicate a sentence of 12 years with a non-parole period of 9 years. 11. In relation to count 15, the attempted murder of Hassan Soueid, the offence is at, or just above, the middle range of objective seriousness and I indicate a sentence of 12 years with a non-parole period of 9 years. 12. In relation to count 20, the large commercial supply of drugs, the offence is well below the middle range of objective seriousness and I indicate a sentence of four years with a non-parole period of three years. This is the same indicative sentence in the case of Witness L. [98] 13. In relation to count 21, the possession of the Mossberg sawnoff shotgun, the offence is in the middle range of objective seriousness and I indicate a sentence of 4 years with a non-parole period of 3 years. 14. In relation to count 22, the possession of the 0.38 calibre Smith & Wesson revolver, the offence is in the middle range of objective seriousness and I indicate a sentence of 4 years with a non-parole of 3 years 15. In relation to count 23, directing the activities of a criminal group, I indicate a sentence of 2 years. 1. Jamil Qaumi: 1. For the offence of contempt of court on 23 August 2016, you are sentenced to a fixed term of 4 months commencing on 7 December 2013 and concluding on 6 April 2014. 2. For the offence of contempt of court on 24 August 2016, you are sentence to a fixed term of 4 months. That sentence will be wholly concurrent with the first charge of contempt and will commence on 7 December 2013 and conclude on 6 April 2014. 3. For the offence of contempt of court on 14 October 2016, you are sentenced to a fixed term of 8 months commencing 7 April 2014 and concluding on 6 December 2014. I do not propose to fix a non-parole period due to the aggregate sentence I am about to impose. 4. For the offences in counts 1, 2, 3, 4, 5, 7, 9, 10, 11, 13, 15, 20, 21, 22 and 23 on the indictment you are sentenced to an aggregate sentence of 30 years. Pursuant to s 44(2B) Crimes (Sentencing Procedure) Act, I find special circumstances in the accumulation, your youth, your conditions of incarceration and the desirability that you have incentive to behave well in custody and the benefit of a long period on parole to assist you to re-integrate into the community. Accordingly, there will be a non-parole period of 21 years commencing 7 December 2014 and concluding on 6 December 2035 with a balance of parole of 9 years commencing 7 December 2035 and concluding 6 December 2044. You will be eligible for release on parole at the conclusion of the non-parole period. 1. Jamil Qaumi, I am required to inform you that the Crime (High Risk Offenders) Act 2006 applies to a number of the offences for which you have been sentenced. I will leave it to you lawyers to explain what that means and how it may impact upon your release at the end of the sentences I have just pronounced. 2. Mr Jamil Qaumi can be removed from the dock. Thank you. SentenceS OF life imprisonment 1. Both Farhad and Mumtaz Qaumi face the possibility of a sentence of life imprisonment following their conviction for the murder of Joseph Antoun. The application of the relevant statutory provisions is not without complexity. 2. Section 19A of the Crimes Act provides that the maximum penalty for murder is imprisonment for life. A person sentenced to imprisonment for life for murder is to serve that sentence for the term of their natural life. Since the abolition of the death penalty, this is the most severe penalty contemplated under Australian law. It should only be imposed in the extreme circumstances provided for by the law. It has a capacity to crush hope and kill any motivation an offender may have to reform. It is considered by some societies and some tribunals to be inhumane and contrary to human rights. [99] However, it is part of the law of New South Wales and must be imposed in extreme cases. The relevant statutory provision reflects this. 3. Section 61(1) of the Crimes (Sentencing) Procedure Act provides: "61 Mandatory life sentences for certain offences (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 1. The first thing to note about the section is that the imposition of a life sentence is mandatory if the court is satisfied of the statutory prerequisite that "the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition" of a life sentence. The second thing to note is the importance of the use of the word "only" within that statutory requirement. If any other sentence will meet the community interest in the four matters referred to, that other sentence – and not a life sentence – should be imposed. 2. Section 61(3) provides "nothing in subsection (1) affects section 21(1)". Section 21(1) preserves the Court's discretion to impose a penalty less than the maximum even in cases where the offender is liable to a maximum penalty of imprisonment for life. 3. In Knight v R [2006] NSWCCA 292 McClellan CJ at CL (with whom Adams and Latham JJ agreed) said that the operation of s 61(1) and s 21(1) required a "two stage approach" stating at [23]: "23 Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50." 1. The High Court recently criticized the use of phrases such as "worst category" and held that the "better approach is for the court to clearly record whether the offence is, or is not, so grave as to warrant the imposition of the maximum penalty." [100] The High Court has criticised two stage sentencing in other contexts. Many of the cases describing this two stage process were decided before the High Court made its decision in Muldrock v The Queen. 2. The "two stage approach" was employed in cases such as R v Miles [2002] NSWCCA 276 at [204]; R v Merritt [2004] NSWCCA 19 at [37]; and Dean v R [2015] NSWCCA 307 at [73]. In Miles Stein JA described the two-stage process at [52]: "The first question is whether the level of culpability is so extreme as to warrant the imposition of a life term? Secondly, whether the subjective features are capable of displacing the need to impose the maximum term?" 1. Some of the authorities recognise that a tension exists between s 61(1) and s 61(3). [101] In Dean v R their Honours said (at [95]) that: "Certainly, the tension recognised in the authorities as existing between s 61(1) and s 61(3) can only readily be reconciled by assuming that that there has been a determination that a life sentence is required to be imposed and then asking whether, in the circumstances, nevertheless a lesser (fixed term) sentence is appropriate. In other words, there must first be an assessment that the level of culpability is such that a life sentence is required, having regard to the four indicia specified in s 61(1), before one can sensibly apply s 21(1)." 1. Similarly, in R v Merritt [2004] NSWCCA 19 Wood CJ at CL (Tobias JA and Hidden J agreeing) noted at [36] the tension between the apparent mandatory requirement to impose a life sentence where a case falls within s 61(1) and the preservation by s 61(3) of the s 21(1) discretion to impose a lesser sentence. 2. There is debate as to whether the two-stage process is the correct approach. I doubt that it is. The case of Dean v R was subject to an application for special leave to appeal to the High Court. [102] It was submitted that the two stage approach is wrong and that the "two sections have to sit alongside each other" with s 21(1) merely preserving the court's discretion in sentencing. While the application was refused on the facts of that case, Bell J commented: [103] "We would not wish to be taken to be endorsing everything stated by the Court of Criminal Appeal in determining this matter." 1. That comment is rather (and, no doubt, deliberately) opaque. It is axiomatic that the observations of the High Court in granting or refusing special leave do not constitute binding precedent. However, the statements of the High Court in cases such as Markarian v The Queen, Muldrock v The Queen and most recently in Kilic v The Queen, satisfy me that the correct approach does not involve a two stage process. I do not consider the earlier judgments of the Court of Criminal Appeal suggesting otherwise are binding in the sense that they mandate that a two stage approach is necessary. 2. The correct approach to s 61 is for the sentencing judge to consider all of the evidence relevant to the sentencing discretion, apply the relevant sentencing principles (common law and statute) and make an assessment of the extremity of the offender's culpability and the "community interest in retribution, punishment, community protection and deterrence." The sentencing Judge must consider whether the only way that the community interest so identified can be met is by the imposition of a life sentence. This is not a multi-stage process. Rather, it is an intuitive evaluation of the all of the material and principles and an application of the legislation providing for mandatory life sentences. 3. In R v Adams (No 7), Button J identified a number of features of cases that have attracted life sentences. [104] These included cases of multiple murders, cases featuring "some exceptional heinous act of cruelty, torture or mutilation" and, relevantly, "a cold blooded contract killing." 4. 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. [105] 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. 5. 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. 6. 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. [106] 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. 7. 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. sentencing mumtaz qaumi 1. 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. [107] 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. 2. I will adopt the same approach to the contempt charge as I did with Jamil Qaumi. However, the charge arising from the attack on the co-accused will attract a longer fixed term because Mumtaz Qaumi was the instigator of that ugly incident. 3. Again, before I impose sentence, I am required to make findings as to whether the offences carrying a standard non-parole period fall in the middle range of objective seriousness and to indicate the sentences that would be imposed for each offence if an aggregate sentence was not imposed. 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. In relation to count 1, the manslaughter of Mahmoud Hamzy, I indicate a sentence of 12 years. 2. In relation to count 2, grievous bodily harm of Omar Ajaj, the offence is in the middle range of objective seriousness and I indicate a sentence of 8 years with a non-parole period of 6 years. 3. In relation to count 3, conspiracy to murder Mohammed Hamzy, the offence is in the middle range of objective seriousness and I indicate a sentence of 10 years with a non-parole period of 7½ years. 4. In relation to count 4, soliciting the murder of Michael Odisho, the offence is in the middle range of objective seriousness and I indicate a sentence of 10 years with a non-parole period of 7½ years. 5. In relation to count 5, the attempted murder of Michael Odisho, the offence is in the middle range of objective seriousness and I indicate a sentence of 10 years with a non-parole period of 7½ years. 6. In relation to count 9, grievous bodily harm of H with intent, the offence is in the middle of range of objective seriousness and I indicate a sentence of 8 years with a non-parole period of 6 years. 7. In relation to count 10, soliciting the murder of Abdul Abu-Mahmoud, the offence is above the middle range of objective seriousness and I indicate a sentence of 12 years with a non-parole period of 9 years. 8. In relation to count 11, the attempted murder of Abdul Abu-Mahmoud, the offence is above the middle range of objective seriousness and I indicate a sentence of 12 years with a non-parole period of 9 years. 9. In relation to count 13, the attempted murder of Khalil Khalil, the offence is just above the middle range of objective seriousness and I indicate a sentence of 12 years with a non-parole period of 9 years. 10. In relation to count 15, the attempted murder of Hassan Soueid, the offence is just above the middle range of objective seriousness and I indicate a sentence of 12 years with a non-parole period of 9 years. 11. In relation to count 18, aggravated shooting at a dwelling house, the offence is in the middle range of objective seriousness and I indicate a sentence of 6 years with a non-parole period of 4½ years. 12. In relation to count 20, the large commercial supply of drugs, the offence is well below the middle range of objective seriousness and I indicate a sentence of four years with a non-parole period of three years. 13. In relation to count 21, the possession of the Mossberg sawnoff shotgun, the offence is in the middle range of objective seriousness and I indicate a sentence of 4 years with a non-parole of 3 years. 14. In relation to count 22, the possession of the 0.38 calibre Smith & Wesson revolver, the offence is in the middle range of objective seriousness and I indicate a sentence of 4 years with a non-parole of 3 years 15. In relation to count 23, directing the activities of a criminal group, I indicate a sentence of 3 years. 16. In relation to the murder of Joseph Antoun, the offence is well above the middle range of objective seriousness and I indicate a sentence of 38 years with a non-parole period 26 years. The length of the non-parole period reflects the finding of special circumstances I have made in determining the appropriate aggregate sentence. The total sentence is three years more than the indicative starting point for Witness L. 1. Mumtaz Qaumi, I will now impose sentence: 1. For the offence of contempt of court on 14 October 2016, you are sentenced to a fixed term of 10 months commencing 9 February 2014 and expiring on 8 December 2014. I do not propose to fix a non-parole period due to the aggregate sentence I am about to impose. 2. For the murder of Joseph Antoun and the offences in counts 1, 2, 3, 4, 5, 9, 10, 11, 13, 15, 18, 20, 21, 22 and 23 on the indictment before the jury, you are sentenced to an aggregate sentence of 50 years. I find special circumstances under s 44(2B) in your prospects of rehabilitation, your young family, the desirability that you have incentive to behave well in custody and the benefit of a long period on parole in which to re-integrate into the community. You are sentenced to a non-parole period of 36 years to commence on 9 December 2014 and to expire on 8 December 2050 with a balance of term of 14 years to commence on 9 December 2050 and to expire on 8 December 2064. You will be eligible for release on parole at the conclusion of the non-parole period. 1. Mumtaz Qaumi, I am required to inform you that the Crime (High Risk Offenders) Act applies to a number of the offences for which you have been sentenced. Your lawyers will no doubt explain the implications of that. 2. Mr Mumtaz Qaumi can be removed from the dock. SENTENCING FARHAD QAUMI 1. Farhad Qaumi faces sentences in relation to 15 offences. This is less offences than Jamil (18 offences) and Mumtaz (17 offences). He is not charged with any of the contempt offences and was found not guilty (at my direction) of all (10) offences arising out of the Chokolatta Café shooting. However, as I have already said, principles of proportionality mean that his brothers must receive a less severe sentence than Farhad Qaumi. 2. 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. 3. 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. 4. 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 satisfied that the community interest in the protection of the community can be met by an extremely long determinate sentence. 5. 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. 6. 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 mater, by itself, would result in a finding that the prerequisites in section 61 are not satisfied. 7. 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. 8. 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." 1. In Bugmy v The Queen, the High Court recognised that "social disadvantage … frequently … precedes the commission of crime." [108] 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. [109] It is relevant to an assessment of the "level of culpability" referred to in s 61(1). 2. 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. [110] 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. 3. For the purpose of the application of the standard non-parole, it is again necessary to record my assessment of where each offence falls relative to the putative "middle range of seriousness". Because of his leadership role, Farhad Qaumi's criminality is higher than that of his brothers in each offence. This is reflected in the individual sentences and in the aggregate sentence. I am required to indicate the putative or indicative sentences that would be imposed if an aggregate sentence was not imposed: 1. In relation to count 1, the manslaughter of Mahmoud Hamzy, I indicate a sentence of 14 years. 2. In relation to count 2, grievous bodily harm of Omar Ajaj, the case is in the middle range of objective seriousness and I indicate a sentence of 10 years with a non-parole period of 7½ years. 3. In relation to count 3, conspiracy to murder Mohammed Hamzy, the offence falls in the middle range of objective seriousness and I indicate a sentence of 12 years with a non-parole period of 9 years 4. In relation to count 4, soliciting the murder of Michael Odisho, the offence is above the middle range of objective seriousness and I indicate a sentence of 12 years with a non-parole period of 9 years. 5. In relation to count 5, the attempted murder of Michael Odisho, the offence is above the middle range of objective seriousness and I indicate a sentence of 12 years with a non-parole period of 9 years. 6. In relation to count 7, soliciting the murder of Masood Zakaria, the offence is above the middle range of objective seriousness and I indicate a sentence of 12 years with a non-parole period of 9 years. 7. In relation to count 9, grievous bodily harm of H with intent, the offence is well above the middle range of objective seriousness and I indicate a sentence of 10 years with a non-parole period of 7½ years. 8. In relation to count 18, aggravated firing at a dwelling house, the offence is above the middle range of objective seriousness and I indicate a sentence of 6 years with a non-parole period of 4½ years. 9. In relation to count 19, possession of a 0.45 calibre pistol, the offence is in the middle range of objective seriousness and I indicate a sentence of 4 years with a non-parole period of 3 years. 10. In relation to count 20, supplying a large commercial quantity of a prohibited drug, the case falls below the middle range of objective seriousness and I indicate a sentence of 6 years with a non-parole period of 4½ years. 11. In relation to count 21, possession of a Mossberg sawn off shotgun, the offence is in the middle of the range of objective seriousness and I indicate a sentence of 4 years with a non-parole period of 3 years. 12. In relation to count 22, possession of a 0.38 calibre Smith & Wesson revolver, the case is in the middle of the range of objective seriousness and I indicate a sentence of 4 years with a non-parole period of 3 years. 13. In relation to count 23, directing the activities of a criminal group, I indicate a sentence of 8 years. 14. In relation to count 2 on the second indictment, the possession of a 0.38 snub nose revolver, the offence is in, or just above, the middle of the range of objective seriousness and I indicate a sentence of 6 years with a non-parole period of 4½ years. 15. In relation to the murder of Joseph Antoun, the sentence is well above the middle of the range of objective seriousness and I indicate a sentence of 45 years with a non-parole period of 33 years and 9 months. 1. 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. 2. Farhad Qaumi, for all of these offences you are sentenced to an aggregate sentence of 60 years. There will be an aggregate non-parole period of 43 years commencing on 9 January 2014 and expiring on 8 January 2057. There will be a balance of term of 17 years commencing 9 January 2057 and expiring on 8 January 2074. 3. You will become eligible for release to parole at the expiration of the non-parole period. 4. I am required to inform you that the Crimes (High Risk Offenders) Act applies to a number of the offences for which you have been sentenced. TABLE A – FARHAD QAUMI Count Offence Maximum Penalty Standard Non-parole Period Section 54D Crimes (Sentencing Procedure) Act 1999 1. 1. Manslaughter of Mahmoud Hamzy 25 years Nil (Altern-ative) Section 24 Crimes Act 2. 2. Grievous bodily harm of Omar Ajaj with intent to cause grievous bodily harm 25 years 7 years - item 4 Section 33(1)(b) Crimes Act 3. 3. Conspiracy to murder Mohammed Hamzy 25 years 10 years - item 2 Section 26 Crimes Act 4. 4. Soliciting the murder of Michael Odisho 25 years 10 years - item 2 Section 26 Crimes Act 5. 5. Intent to murder Michael Odisho 25 years 10 years - item 3 Section 29 Crimes Act 6. 7. Soliciting the murder of Masood Zakaria 25 years 10 years - item 2 Section 26 Crimes Act 7. 9. Grievous bodily harm to H with intent to cause grievous bodily harm 25 years 7 years- item 4 Section 33 (1)(b) Crimes Act 8. 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 - item 10P Section 93G(1B) Crimes Act 9. 19. Possessing a 0.45 calibre pistol, not being authorised to do so by a licence or permit 14 years 4 years - item 20 Section 7(1) Firearms Act 1996 10. 20. Supply of a large commercial quantity of a prohibited drug A fine of 5000 penalty points or imprisonment for life or both 15 years - item 19 Sections 25(2) and 33(3)(a) Drug Misuse and Trafficking Act 1985 11. 21. Possessing a prohibited firearm, not being authorised to do so by a license or permit 14 years 4 years - item 20 Section 7(1) Firearms Act 12. 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 - item 20 Crimes Section 7(1) Firearms Act 13. 23. Directing the activities of a criminal group 15 years NIL Section 93T(4A) Crimes Act 14. 1. Murder of Joseph Antoun Life or 25 years 20 years – item 1 Section 18(1)(a) Crimes Act 15. 2. Possessing a 0.38 calibre snub nose revolver, not being authorised to do so by a licence or permit 14 years 4 years - item 20 Section 7(1) Firearms Act TABLE B – MUMTAZ QAUMI Count Offence Max Penalty Standard Non-parole Period Section 54D Crimes (Sentencing Procedure) Act 1999 1. 1. Manslaughter of Mahmoud Hamzy 25 years Nil (Alternative) Section 24 Crimes Act 2. 2. Grievous bodily harm of Omar Ajaj with intent to cause grievous bodily harm 25 years 7 years - item 4 Section 33(1)(b) Crimes Act 3. 3. Conspiracy to murder Mohammed Hamzy 25 years 10 years - item 2 Section 26 Crimes Act 4. 4. Soliciting the murder of Michael Odisho 25 years 10 years - item 2 Section 26 Crimes Act 5. 5. Intent to murder Michael Odisho 25 years 10 years - item 3 Section 29 Crimes Act 6. 9. Grievous bodily harm to H with intent to cause grievous bodily harm 25 years 7 years- item 4 Section 33(1)(b) Crimes Act 7. 10. Soliciting the murder of Abdul Abu-Mahmoud 25 years 10 years - item 2 Section 26 Crimes Act 8. 11. Shooting at Abdul Abu-Mahmoud with intent to murder Abdul Abu – Mahmoud 25 years 10 years - item 3 Section 29 Crimes Act 9. 13. Shooting at Khalil Khalil with intent to murder Khalil Khalil 25 years 10 years - item 3 Section 29 Crimes Act 10. 15. Shooting at Hassan Soueid with intent to murder Hassan Soueid 25 years 10 years - item 3 Section 29 Crimes Act 11. 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 - item 10P Section 93G(1B) Crimes Act 12. 20. Supply of a large commercial quantity of a prohibited drug A fine of 5000 penalty points or imprisonment for life or both 15 years - item 19 Sections 25(2) and 33(3)(a) Drug Misuse and Trafficking Act 1985 13. 21. Possessing a prohibited firearm, not being authorised to do so by a license or permit 14 years 4 years - item 20 Section 7(1) Firearms Act 14. 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 - item 20 Section 7(1) Firearms Act 15. 23. Directing the activities of a criminal group 15 years Nil Section 93T(4A) Crimes Act 16. 1. Murder of Joseph Antoun Life or 25 years 20 years – item 1 Section 18(1)(a) Crimes Act 17. Contempt (act of violence towards co-accused in the face of the court) on 1 August 2016 At large Nil Common law [111] TABLE C – JAMIL QAUMI No. of Offences Count Offence Max Penalty Standard Non-parole Period Section 54D Crimes (Sentencing Procedure) Act 1999 1. 1. Manslaughter of Mahmoud Hamzy 25 years Nil (alternative) Section 24 Crimes Act 2. 2. Grievous bodily harm of Omar Ajaj with intent to cause grievous bodily harm 25 years 7 years - item 4 Section 33(1)(b) Crimes Act 3. 3. Conspiracy to murder Mohammed Hamzy 25 years 10 years - item 2 Section 26 Crimes Act 4. 4. Soliciting the murder of Michael Odisho 25 years 10 years - item 2 Section 26 Crimes Act 5. 5. Intent to murder Michael Odisho 25 years 10 years - item 3 Section 29 Crimes Act 6. 7. Soliciting the murder of Masood Zakaria 25 years 10 years - item 2 Section 26 Crimes Act 7. 9. Grievous bodily harm to H with intent to cause grievous bodily harm 25 years 7 years- item 4 Section 33(1)(b) Crimes Act 8. 10. Soliciting the murder of Abdul Abu-Mahmoud 25 years 10 years - item 2 Section 26 Crimes Act 9. 11. Shooting at Abdul Abu-Mahmoud with intent to murder Abdul Abu – Mahmoud 25 years 10 years - item 3 Section 29 Crimes Act 10. 13. Shooting at Khalil Khalil with intent to murder Khalil Khalil 25 years 10 years - item 3 Section 29 Crimes Act 11. 15. Shooting at Hassan Soueid with intent to murder Hassan Soueid 25 years 10 years - item 3 Section 29 Crimes Act 12. 20. Supply of a large commercial quantity of a prohibited drug A fine of 5000 penalty units or imprisonment for life or both 15 years - item 19 Sections 25(2) and 33(3)(a) Drug Misuse and Trafficking Act 1985 13. 21. Possessing a prohibited firearm, not being authorised to do so by a license or permit 14 years 4 years - item 20 Section 7(1) Firearms Act 14. 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 - item 20 Section 7(1) Firearms Act 15. 23. Directing the activities of a criminal group 15 years Nil Section 93T(4A) Crimes Act 16. Contempt (refusal to answer questions) on 23 August 2016 At large Nil 17. 1. Contempt (refusal to answer questions) on 24 August At large Nil 18. 1. Contempt (act of violence towards co-accused in the face of the court) on 1 August 2016 At large Nil Common law [112] ********** Endnotes 1. Each has a re-trial listed later this year so I will not refer to them by name. 2. See R v Qaumi & Ors (No 3) (Severance and separate trial) [2016] NSWSC 15; R v Qaumi & Qaumi [2016] NSWSC 1473. 3. R v Qaumi & Qaumi (No 12) [2017] NSWSC 134. 4. Cf Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54 at [16]-[18]. 5. Again, see Olbrich v The Queen. 6. Ex S-J. 7. Attorney General's Application No 1 of 2002 [2002] NSWCCA 518 at [42] as explained in Abbas & Ors v R [2013] NSWCCA 115, for example at [22] – [24] (Bathurst CJ). 8. R v Qaumi & Ors (No 25) [2016] NSWSC 514. 9. See MFI 252, Transcript of Summing Up (SU) at 424. 10. R v Qaumi & Ors (No 57) [2016] NSWSC 1157. 11. Ex FFFFFF. 12. See Ex AAAA. 13. Ex S-F. 14. See R v Qaumi & Qaumi (No 12) (supra). 15. Crimes (Sentencing Procedure) Act 1999 (NSW) s 61. 16. R v Qaumi & Ors (No 62) [2016] NSWSC 1215. 17. T 5,973. 18. T 6,106. 19. [2016] NSWSC 1068 at [2]-[3]. 20. Ex S-H. 21. Or similar material. 22. T (23 May 2017) 27. 23. Although I find that the drug offence is towards the bottom of the range of serious for offences of its kind. 24. The Queen v Kilic [2016] HCA 48 at [17]-[20]. 25. (2011) 244 CLR 120; [2011] HCA 39. 26. Muldrock at [26] and see Markarian v The Queen (2005) 228 CLR 357 at 378 [51]; [2005] HCA 25. 27. Muldrock at [27]. 28. R v FQ (Court of Criminal Appeal (NSW), 28 May 1998, unrep). 29. R v Tsiaras [1996] 1 VR 398 at 400; R v Lauritsen (2000) 114 A Crim R 333 at [43]-[51]; R v Israil [2002] NSWCCA 255 at [21]-[26]; Bugmy v The Queen (2013) 249 CLR 471; [2013] HCA 37 at [37]; DA v R [2014] NSWCCA 306; Kearsley v R [2017] NSWCCA 28. 30. See s 21A(2)(d) Crimes (Sentencing Procedure) Act and Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14. 31. T 4,186 – 4,187. 32. These are set out in R v Qaumi & Qaumi (No 12) at [155]-[164]. 33. See, for example, R v Engert (1995) 84 A Crim R 67. 34. Exhibit SM1 p 2. 35. Ex SM1 p 8. 36. Ex SM1 p 8. 37. Ex SM1 p 9. 38. Ex SM1 p 8. 39. Ex SM1 p 2. 40. Ex SM1 p3 41. Ex SM1 p 3. 42. Ex SM1 p 5. 43. Ex SE at 5-7. 44. See the cases referred to in note [26] above. 45. Ex S-J. 46. T 4960-49645 (Dr Fuentes) 47. Ex S-K, S-L, S-M and S-N. 48. See, for example, R v Hines (No 3) [2014] NSWSC 1273 (Hamill J) at [77] - [85]; R v Do (No 4) [2015] NSWSC 512 (Davies J); R v Halloun [2014] NSWSC 1705 (McCallum J); R v Sumpton (No. 4) [2015] NSWSC 684 at [36] – [44]; Sumpton v R [2016] NSWCCA 162. See also the comments pre-dating the section made by Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 and Adams J in R v Dang [1999] NSWCCA 42. 49. Ghamraoui v R [2009] NSWCCA 111 at [23]. 50. Bugmy v The Queen at [37] and [43] 51. Ibid at [40]. 52. Postiglione v The Queen (1997) 189 CLR 295 at 301-302 (Dawson and Gaudron JJ); [1997] HCA 26. 53. Green v The Queen, Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 473-474 ([29]-[30]) (French CJ, Crennan and Kiefel JJ). 54. Cf Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 609 (Gibbs CJ), 610-611 (Mason J), 617-618 (Brennan J), 623 (Dawson J) 55. Exhibits S-B and S-C. 56. See MFI S-4. 57. 53A(2). These individual sentences are often referred to as "indicative sentences" although Basten JA prefers different language. He would refer to them as "putative sentences": Mundine v R [2017] NSWCCA 97 at [14]. 58. [2015] NSWCCA 53. 59. [2015] NSWCCA 194. 60. There may be some controversy over whether the indicative or putative sentence should incorporate any discount. However, this is only relevant to Jamil and Farhad Qaumi in respect of the manslaughter charge. 61. See also, JM v R [2014] NSWCCA 297. 62. McIntosh v R [2015] NSWCCA 184 at [136]-[137] where Basten JA indicated that to do so is "inconsistent with the underlying purpose of an aggregate sentence." 63. R v MJB [2014] NSWCCA 195 at [58]-[60]. 64. See, for example, R v Oinonen [1999] NSWCCA 310; Pennisi [2001] NSWCCA 326; R v Cardoso [2003] NSWCCA 15 at [15]-[23], R v Johnson [2003] NSWCCA 129 at [36]-[34]. For more recent examples of the principle in operation, see Smith v R [2015] NSWCCA 193 at [4] and [41] and R v Hamzy [2016] NSWSC 1512 at [50]-[53]. 65. [2003] NSWCCA 15 at [21]. 66. As per the criminal record included in exhibit S-E. 67. Section 47. 68. Ex S-16. 69. Ex S-J4. 70. T 26/4/17 at 105. 71. As it turned out, they didn't. Jamil Qaumi's case was brought back before the Court on 13 June 2017 to place evidence before the Court of his commission of offences in custody and the sentences imposed as a result. 72. Exhibits S-F4 and S-M5, T 22-54. 73. Exhibits Ex S-P, S-Q and S-R; T 64-87. 74. T 6-21. 75. Ex S-E. 76. Ex S-P, T (23 May 2017) 64-73. 77. Ex S-Q, T (23 May 2017) 74-83. 78. Ex S-Q paragraph 14. 79. See MFI S-16 para 4 and Ex S-S. 80. Ex S-R, T 23 May 2017) 84-87. 81. Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86 at [7], [11]; Clark v State of New South Wales & Ors [2014] NSWSC 801; cf Clark v Commissioner for Corrective Services [2016] NSWCA 186. 82. See, for example, the discussion by Howie J in R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 209 at [20]-[21]. 83. R v Totten [2003] NSWCCA 207; R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304 at [179]–[181]. 84. Mostyn at [180]. 85. T (23 May 2017) 27. 86. Kanaan and Ors v R [2006] NSWCCA 109 at [263]. And see the comments of N Adams J in Fayad v R [2017] NSWCCA 81 at [57] where the offender's conditions resulted from him "actively recruiting inmates to Islam" agitating for "the implementation of Sharia law". 87. Majid v R [2010] NSWCCA 121 at [58]. 88. See the Crown's submissions on this issue (MFI S-15) at [20] and [33] and the reference to R v Pennisi [2003] NSWSC 892. 89. MFI S-15 at [33]-[35], T 98-99. 90. T 98-99. 91. T 91. 92. T 92. 93. Crown's written submissions, MFI S-1. 94. Ibid, at [29]. 95. MFI 251. 96. Transcript of Summing Up p 413-415. 97. "Paranoid" is my word. The evidence of the early shooting incident was contained in the statements of his sister and in Farhad Qaumi's evidence on sentence at T (23 May 2017) 43. 98. R v NK at [143]. 99. See the collection of cases in Vinter and Others v The United Kingdom (European Court of Human Rights, Grand Chamber, Application Nos 66069/09, 130/10 and 3896/10, 9 July 2013) and note the observations of Bell J in DPP (Vic) v Hunter [2013] VSC 440 at [110]-[111]. 100. The Queen v Kilic at [20]. 101. See for example R v Merritt [2004] NSWCCA 19 at [36]; Dean v R at [69]. 102. Dean v R [2016] HCATrans 278. 103. Dean v R [2016] HCATrans 278. 104. R v Adams (No 7) [2017] NSWSC 179 at [53]. 105. 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). 106. T (7 April 2017) 83, 85-86. 107. Barton v R [2009] NSWCCA 164 at [16]-[17] 108. Bugmy v The Queen at [37] quoting Simpson J (as her Honour then was) in Kennedy v The Queen [2010] NSWCCA 260 at [53]. 109. See Bugmy at [40] cited above at [124]-[125]. 110. Barton v R [2009] NSWCCA 164 at [16]-[17]. 111. See, for example, Smith v The Queen (1991) 25 NSWLR 1 at 15. 112. Ibid. 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: 16 June 2017