Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R

[2020] NSWCCA 163

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163

Hearing dates:

30 October 2019; 31 October 2019

Date of orders:

15 July 2020

Decision date:

15 July 2020

Before:

Bathurst CJ at [1];
Hoeben CJ at CL at [5];
Johnson J at [324]

Decision:

Conviction appeals:

(1)   Leave to appeal against conviction be granted.

(2)   For Mumtaz Qaumi there be a verdict of acquittal entered in respect of Counts 9 and 18.

(3)   For Farhad Qaumi there be a verdict of acquittal entered in respect of Count 18.

(4)   Otherwise, for Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi the appeals against conviction be dismissed.

Sentence appeals:

Farhad Qaumi:

(a)   grant leave to appeal against sentence;

(b)   quash the aggregate sentence imposed on 16 June 2017;

(c)   in its place, sentence Farhad Qaumi to an aggregate sentence of imprisonment for 58 years, comprising a non-parole period of 42 years commencing on 9 January 2014 and expiring on 8 January 2056 with a balance of term of 16 years commencing on 9 January 2056 and expiring on 8 January 2072;

(d)   the earliest date upon which Farhad Qaumi will be eligible for release on parole is 9 January 2056.

Mumtaz Qaumi:

(a)   grant leave to appeal against sentence;

(b)   quash the aggregate sentence imposed on 16 June 2017;

(c)   in its place, sentence Mumtaz Qaumi to an aggregate sentence of imprisonment for 46 years, comprising a non-parole period of 33 years commencing on 9 December 2014 and expiring on 8 December 2047 with a balance of term of 13 years commencing on 9 December 2047 and expiring on 8 December 2060;

(d)   the earliest date upon which Mumtaz Qaumi will be eligible for release on parole is 9 December 2047.

Jamil Qaumi:

(a)   grant leave to appeal against sentence;

(b)   appeal dismissed.

Catchwords:

CRIMINAL LAW – conviction appeals – gangland violence – gun violence – Brothers for Life (BFL) – spate of shootings directed at rival chapter of BFL – wanton lawlessness – hit list – series of attempted murders – shooting in or near people’s homes and public places – multiple victims – principles applying to joint criminal enterprise and extended joint criminal enterprise – whether evidence of involvement in such enterprises sufficient to establish liability – Crown case dependent on evidence of “roll over” witnesses – conviction appeals dismissed except for three counts.

CRIMINAL LAW – sentence appeals – applicants sentenced for range of serious offences arising from gangland violence – Farhad Qaumi and Mumtaz Qaumi also sentenced for murder – cold blooded contract killing – aggregate sentence imposed for each applicant – sentencing Judge took into account incorrect standard non-parole periods for some counts – error capable of affecting aggregate sentence for each applicant – whether disparity between the indicative sentences for Farhad Qaumi and Mumtaz Qaumi and that nominated for a co-offender for murder offence – reasonable explanations for different indicative sentences for murder offence – no foundation for legitimate grievance arising from differences between indicative sentences – whether sentencing Judge erred in assessment of objective seriousness of some counts – error not established – where Farhad Qaumi (one count) and Mumtaz Qaumi (two counts) acquitted on appeal on some counts – necessary to re-consider aggregate sentence for each applicant – lesser aggregate sentences for Farhad Qaumi and Mumtaz Qaumi warranted to reflect acquittal on some counts – Farhad Qaumi and Mumtaz Qaumi re-sentenced – lesser sentence for Jamil Qaumi not warranted – sentence appeal of Jamil Qaumi dismissed.

Legislation Cited:

Crimes Act 1900 (NSW) – ss 18(1)(a), 24, 26, 29, 33(1)(b), 93G(1)(b), 93T(4A)

Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3A, 21A, 53A, 54B(4), 61

Criminal Appeal Act 1912 (NSW) – s 6(3)

Drug Misuse and Trafficking Act 1985 (NSW) – ss 25, 33(3)(a)

Evidence Act 1995 (NSW) – ss 128, 164, 165

Firearms Act 1996 (NSW) – ss 4, 7(1)

Cases Cited:

Aouad v R; El-Zeyat v R (2011) 207 A Crim R 411; [2011] NSWCCA 61

AB v R [2014] NSWCCA 31

Battersby v R [2018] NSWCCA 141

Chamon v R [2020] NSWCCA 112

Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R (2011) 209 A Crim R 424; [2011] NSWCCA 62

Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

El-Zeyat v R; Aouad v R; Osman v R [2015] NSWCCA 196

Giang v R [2017] NSWCCA 25

House v The King (1936) 55 CLR 499; [1936] HCA 40

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Kanaan and Ors v R [2006] NSWCCA 109

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Maxwell v R [2020] NSWCCA 94

McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37

Mulato v R [2006] NSWCCA 282

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12

Portelli v R [2018] NSWCCA 28

R v Brooks [2012] NSWSC 505

R v Burnes [2007] NSWSC 298

R v Chandler; Chandler v R [2012] NSWCCA 135

R v Clark [2007] NSWSC 954

R v Clark (No 3) [2008] NSWSC 795

R v Darwiche and Ors [2006] NSWSC 1167

R v Farhad Qaumi; Mumtaz Qaumi and Jamil Qaumi (Sentence) [2017] NSWSC 774

R v FQ, Court of Criminal Appeal (NSW) 17 June 1998, unrep

R v Kanaan and Ors [2002] NSWSC 774

R v May (No 7) [2008] NSWSC 971

R v NK (No 3) [2015] NSWSC 1257

R v Qaumi and Qaumi (No 12) [2017] NSWSC 134

R v Qaumi and Others (No 58) [2016] NSWSC 1158

R v Qaumi and Others (No 60) [2016] NSWSC 1160

R v Ryan and Coulter [2011] NSWSC 1249

Rae v R [2011] NSWCCA 211

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Sutton v R [2016] NSWCCA 249

Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215

Tuivaga v R [2015] NSWCCA 145

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Principal judgment

Parties:

Farhad Aamad Qaumi – Applicant
Mumtaz Ahmed Qaumi – Applicant
Jamil Ahmad Qaumi – Applicant
Regina – Respondent Crown

Representation:

Counsel:
J Stratton SC/M Curry – Applicant Farhad Qaumi
I Lloyd QC/N Carroll – Applicant Mumtaz Qaumi
M Ramage QC/N Carroll – Applicant Jamil Qaumi
E Balodis – Respondent Crown

Solicitors:
Matouk Joyner Lawyers – Applicant Farhad Qaumi
George Sten & Co – Applicant Mumtaz Qaumi
Bannister Lawyers – Applicant Jamil Qaumi
Solicitor for Public Prosecutions – Respondent Crown

File Number(s):

2014/315252 (Farhad Qaumi)
2014/06813 (Mumtaz Qaumi)
2013/336086; 2014/18164; 2014/315253 (Jamal Qaumi)

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), until further order of the Court, there is to be no disclosure or publication in connection with these proceedings of the names of witnesses A, C, E, J, K, L, M or any information likely to lead to the identification of those witnesses.

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

R v Farhad Qaumi; Mumtaz Qaumi and Jamil Qaumi (Sentence) [2017] NSWSC 774

Date of Decision:

16 June 2017

Before:

Hamill J

File Number(s):

2014/315252 (Farhad Qaumi)
2014/06813 (Mumtaz Qaumi)
2013/336086; 2014/18164; 2014/315253 (Jamal Qaumi)

JUDGMENT

1. BATHURST CJ: I have had the advantage of reading the judgments of Hoeben CJ at CL and Johnson J in draft.

2. So far as the conviction appeals are concerned, I agree with the orders proposed by Hoeben CJ at CL that the appeal by Farhad Qaumi against his conviction on count 18 and the appeal by Mumtaz Qaumi against his conviction on counts 9 and 18 be allowed but the conviction appeals otherwise be dismissed. I also agree with his Honour’s reasons for reaching this conclusion.

3. I should indicate I have conducted my own review of the evidence as a result of which I have concluded it was open to the jury in the sense described in authorities such as M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 to reach a verdict of guilty on those counts in respect of which the appeal against conviction has been dismissed.

4. So far as the sentence appeals are concerned, I agree with the orders proposed by Johnson J for the reasons given by him.

5. HOEBEN CJ at CL:

Background

On 4 April 2016, three brothers, Farhad Qaumi (Farhad), Mumtaz Qaumi (Mumtaz) and Jamil Qaumi (Jamil) (the applicants) with two others were arraigned before Hamill J and a jury of 15. There were 24 charges on the first indictment and one charge on the second indictment. All five accused entered pleas of not guilty. The Crown case proceeded for 20 weeks from 4 April 2016 until 18 August 2016. A number of “roll-over witnesses” were called in the Crown case. These witnesses have been referred to by their pseudonyms used in the trial. (A list identifying those witnesses is marked “A” and is confidential. It will be made available to the parties only.)

6. A summary of the charges brought against the Qaumi brothers and the outcome is as follows:

Count 1 – murder of Mahmoud Hamzy – each found guilty of manslaughter.

Count 2 – cause grievous bodily harm to Omar Ajaj with intent to cause grievous bodily harm – each found guilty.

Count 3 – conspiracy to murder Mohammed Hamzy – each found guilty.

Count 4 – Solicit known persons to murder Michael Odisho – each found guilty.

Count 5 – Shoot at Michael Odisho with intent to murder – each found guilty.

Count 7 – Solicit Mohammed Kalal and other known persons to murder Masood Zakaria – Farhad and Jamil found guilty. Hung jury for Mumtaz.

Count 8 – Cause grievous bodily harm to Masood Zakaria with intent to murder Masood Zakaria – each found not guilty.

Count 9 – Cause grievous bodily harm to Masood Zakaria with intent to do grievous bodily harm to another person – each found guilty.

Count 10 – Solicit Mohammed Kalal and another known person to murder Abdul Abu-Mahmoud – Mumtaz and Jamil found guilty. Directed verdict of not guilty for Farhad.

Count 11 – Shoot at Abdul Abu-Mahmoud with intent to murder – Mumtaz and Jamil found guilty. Directed verdict of not guilty for Farhad.

Count 13 – Shoot at Khalil Khalil with intent to murder – Mumtaz and Jamil found guilty. Directed verdict of not guilty for Farhad.

Count 15 – Shoot at Hassan Soueid with intent to murder – Mumtaz and Jamil found guilty. Directed verdict of not guilty for Farhad.

Count 18 – In the course of an organised criminal activity, fired a firearm at a dwelling house with reckless disregard for the safety of others – Farhad and Mumtaz found guilty.

Count 19 – Possess a .45 pistol – Farhad found guilty.

Count 20 – Supply of a large commercial quantity of a prohibited drug – Farhad, Mumtaz and Jamil found guilty.

Count 21 – Possession of a shotgun – Farhad, Mumtaz and Jamil found guilty.

Count 22 – Possession of a .38 revolver – Farhad, Mumtaz and Jamil found guilty.

Count 23 – Direct activities of a criminal group – Farhad, Mumtaz and Jamil found guilty.

Count 2 on the second indictment – possession of a .38 snub-nose revolver – Farhad found guilty.

7. The various counts can be conveniently grouped as follows:

29 October 2013	Hamzy shooting	Revesby Heights	Counts 1, 2, 3
3 November 2013	Odisho shooting	Winston Hills	Counts 4, 5, 6
4 November 2013	Zakaria shooting	Blacktown	Counts 7, 8, 9
7 November 2013	Chokolatta shooting	Bankstown	Counts 10, 11, 13, 15
29 November 2013	Elkadi shooting	Greenacre	Count 18
October – December 2013	Supply prohibited drugs	Sydney	Count 20
July – December 2013	Possess firearms	Sydney	Counts 19, 21, 22 and Count 2 on the second indictment
July 2013 – January 2014	Criminal group	Sydney	Count 23

8. The Crown case can be briefly summarised. Farhad Qaumi was alleged to have been the leader of a criminal organisation, the Brothers for Life (BFL) Blacktown chapter. On 28 October 2013, he was told that Mohammed Hamzy (also known as “Little Crazy” or “LC”), the leader of the Bankstown chapter of the BFL was planning to kill him and had attempted to do so in the recent past. Farhad Qaumi directed other members of his group to kill Mohammed Hamzy. However, they in fact killed his cousin, Mahmoud Hamzy and wounded Omar Ajaj.

9. Subsequently on 2 November 2013, some members of the Blacktown BFL attended Star City Casino and Farhad Qaumi was informed that he was suspected of arranging the attempted killing of Mohammed Hamzy. The Crown case was that after the group left the Casino, some of them including the applicants, Witness J and Witness L met in a park and Farhad Qaumi gave instructions for a number of members of Mohammed Hamzy’s group to be shot. The names mentioned of people to be shot included Omar Ajaj, Michael Odisho, Masood Zakaria and Khaled Hamzy.

10. In the days that followed, members of the applicants’ group shot Michael Odisho (on 3 November 2013). On 4 November 2013, they attempted to shoot Masood Zakaria but instead shot his sister, H. On 7 November 2013, there was a shooting at the Chokolatta Café Bankstown. (There was a directed verdict of not guilty in relation to Farhad Qaumi for the counts arising from this shooting.) On 29 November 2013, there was a shooting at Greenacre Road, Greenacre. It was alleged that Farhad and Mumtaz Qaumi had given instructions for the house of the mother of Mohammed Hamzy to be shot at, but the house which was shot at was a different house in the same street.

The conviction appeals

11. There was no appeal pressed by the applicants against the convictions on Counts 1-3. There was no appeal by Farhad Qaumi from his conviction on Count 2 of the second indictment. There were appeals from the convictions for Counts 4, 5, 7, 9, 18, 19, 20, 21 and 22 by Farhad Qaumi. There were appeals from the convictions for Counts 4, 5, 9, 10, 11, 13, 15, 18, 20, 21, 22 and 23 by Mumtaz Qaumi. There were appeals from the convictions for Counts 4, 5, 7, 9, 13, 15, 20, 21 and 22 by Jamil Qaumi.

12. The ground of appeal in each case was that the verdicts of guilty for those counts in respect of each applicant were unreasonable and could not be supported having regard to the evidence.

Applicable principles

13. The applicants relied upon the statements of principle in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 where the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said at 493:

“Where notwithstanding that as a matter of law there is evidence to sustain a verdict a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question, the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary the Court must pay full regard to those considerations.”

14. The plurality continued at 494-495:

“… In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618-619; Chidiac v The Queen [1991] HCA 4 (1991) 171 CLR 432 at 443-444; [1991] HCA 4) . In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen at 443, 451, 458, 461-462). Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.”

15. The Crown did not take issue with the principles relied on by the applicants. In addition, the Crown relied upon Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 where Hayne J (with whom Gleeson CJ and Heydon J agreed) said at [113]:

1. It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue …”

It should be noted that in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 at [45], the Court stated that Libke did not depart from M.

16. The Crown also relied upon the following statement of principle from The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]:

1. It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.” Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

2. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.”

The background to the shootings

17. Although there is no longer an active conviction appeal by any of the applicants in respect of Counts 1-3, in order to understand the evidence of the shootings, which are the subject of this appeal, it is necessary to understand the background to the first shooting, which resulted in the killing of Mahmoud Hamzy and the events leading up to it. This provides the context for what subsequently occurred.

17. The Crown case was that the applicants were members of the Blacktown chapter of the BFL. Farhad Qaumi was the leader of the chapter, Mumtaz Qaumi was the second in command and Jamil Qaumi was third in command and the “enforcer” for the chapter at the time of the shootings. There was a considerable body of evidence to support the leadership role of the applicants and it was well open to the jury to make that finding. The Crown case was that BFL Blacktown was a criminal organisation which made money from criminal activities and in particular, the sale of drugs and stand over activity. The events which led to the killing by shooting of Mahmoud Hamzy began with a series of meetings on the day of the shooting, 28 October 2013.

The meeting on 28 October 2013 – Anytime Fitness

19. Witness J gave evidence that on 28 October 2013 on the way to the “Anytime Fitness” gym, he and Farhad Qaumi saw Mohammed Hamzy getting out of his Maserati near “Wafflelicious”, a fast food outlet. He said that he noticed that Mohammed Hamzy appeared to be a bit shocked to see them.

20. Witness M, while not being a member of the BFL organisation, was familiar with both the Blacktown chapter and the Bankstown chapter. The reliability of her evidence was heavily challenged in the trial and warnings were given by the trial judge about her reliability. In this appeal, the Crown expressly eschewed reliance upon the evidence of Witness M unless that evidence was corroborated.

21. Witness M gave evidence that on 28 October 2013, she was driving her mother to a barbeque when she saw Farhad Qaumi outside the Anytime Fitness gym at Parramatta. Farhad Qaumi signalled her to pull over which she did. Farhad Qaumi told her to drop her mother off at the barbeque and to come back.

22. Witness M gave evidence that she had spoken with her ex-husband the day before and that he had told her to tell Farhad to be careful because “LC was after him”. She told Farhad this and his response was “I’m going to get him anyway but this gives me an excuse”. She said that Farhad Qaumi called Jamil Qaumi over and then Witness J and repeated to them what her ex-husband had told her.

23. Witness L said that he and Mohammed Kalal went to the gym at Parramatta to meet up with Farhad Qaumi and Witness J. He said that Farhad was talking with Witness M and Witness J for about half an hour outside the gym. He did not hear the conversation but he said that Farhad appeared to be getting angry.

24. Witness J gave an account of the meeting at Anytime Fitness which was different from that given by Witness M. He said that Witness M turned up at Anytime Fitness and had a conversation with Farhad Qaumi for about five to ten minutes which was too far away for him to hear. Farhad Qaumi then told him to “come over and hear this”. In cross-examination, Witness J said that he did not see Witness M get out of any car and that the conversation was on the footpath. Witness M said that she had received information from a person called “H” that Mohammed Hamzy had put a contract out for someone to kill Farhad Qaumi. Witness J pointed out that Mohammed Hamzy was under investigation by police for murder so he would be locked up soon.

25. Witness J gave more detail about this conversation. He agreed that Witness M said that she had been told that $150,000 had been offered to Mustafa Mariam to murder Farhad Qaumi. He agreed that Farhad Qaumi appeared very concerned and alarmed by this information.

26. According to Witness J, Witness M also told Farhad Qaumi about an earlier attempt on his life. She described an incident in which Mohammed Hamzy had been waiting at a McDonalds outlet with some associates preparing to kill Farhad Qaumi. She said that she was not actually present but obtained this information from sources within the Bankstown BFL. She was able to describe the persons Farhad Qaumi was with at the time, what he was wearing and what car he was driving. (These were apparently details which could only be supplied by someone who had actually been there.) The plan had been to kill Farhad Qaumi that day but it was not carried out, either because the police had been seen driving past or because Farhad Qaumi was accompanied by friends.

27. Earlier in his evidence, Witness J referred to the level of detail which Witness M was able to give about the incident. He said:

“Q. Was that something [Witness M] was saying?

A. Yeah, yeah she described the particular time. She even described what clothes Farhad was wearing on the day. So that’s why Farhad believed her story.” (T.3954-3955, 30.6.2016)

28. All those details were put to Witness M which she denied. She said that in effect her meeting up with Farhad Qaumi was a chance meeting. Witness M denied telling Farhad Qaumi that Mohammed Hamzy had been with some of his crew three days before on a mission to murder him and denied telling Farhad Qaumi that Mustafa Mariam had accepted Mohammed Hamzy’s contract to kill him.

29. Jamil Qaumi’s account of what Witness M said supported Witness J’s account. Jamil Qaumi said that Farhad Qaumi believed Witness M.

30. Witness L gave evidence that Witness M had arrived at Granville Park, where he was with Farhad Qaumi, Mumtaz Qaumi and Witness J. Farhad Qaumi asked Witness M to repeat what she had said to him earlier. She told the group that “LC” had been around the corner to “knock” or murder Farhad Qaumi.

31. Inspector Brown, the officer in charge of the investigation into these matters, gave evidence that Mohammed Hamzy was charged with the murder of another member of the BFL and that police thought that the threat to Farhad Qaumi was sufficiently believable for officers to attend his home on the Central Coast on 29 October 2013 and warn him that there was a credible death threat against him.

32. Following the meeting at Anytime Fitness, Witness J said that he and Farhad Qaumi went to a location near the Armani Restaurant where other members of the group were called. He said that while they were at that location, they saw Masood Zakaria and Michael Odisho. Witness L gave evidence that Farhad Qaumi told him that Witness M heard from her ex-husband that “the Lebbos wanted to kill him”. Witness L said that while at the Armani Restaurant, they bumped into Michael Odisho, Masood Zakaria, a “Turkish guy” and another man whom he did not know. They were all from the Bankstown chapter of the BFL. According to Witness L, Farhad Qaumi told him that Witness M had told him about “LC’s” earlier attempt to kill him.

33. Witness M gave evidence that a meeting was arranged at a park in Granville. She said that Farhad, Mumtaz, Jamil, Witness J and Witness L were present. She said that Farhad told her to tell the group what her ex-husband had told her. Witness M said that at that meeting Farhad Qaumi gave directions about shooting “LC” and as to who was to do the shooting, including ordering her to be the driver. Witness M said that she initially refused. The effect of her evidence was that she only agreed to become a driver after she was threatened by Farhad. She said that “I’m pretty sure he said my mum won’t have a daughter anymore if I don’t and that he would kill me” (T.2231, 25.5.2016).

34. It was submitted, on behalf of Farhad, that had such a threat been made by him she would have had a very clear memory of it.

35. Witness J also gave evidence about the meeting at Granville. His account was different from that of Witness M. He said that the three Qaumi brothers, Witness L and Nasser Zarshoy were present. Later, Witness M arrived. She repeated that Mohammed Hamzy was going to pay another guy to kill Farhad Qaumi. Farhad Qaumi asked other members of the group to kill Mohammed Hamzy and he assigned various roles to members of the group.

36. In his evidence in chief, Witness J said that Farhad Qaumi told him: “Yeah, pretty much run in the garage and shoot whoever is in there”. In cross-examination, it was put to him that Farhad Qaumi simply said that he wanted people to get Mohammed Hamzy. Witness J replied “Can’t recall”.

37. In cross-examination, Witness J agreed that Farhad Qaumi and Mumtaz Qaumi had too much “heat on them from the police” to go to the shooting. Witness J said that initially he was asked to be the driver when the attempt to kill Mohammed Hamzy was made. Witness J said that when he declined to be the driver, Witness M said “Oh, I’d rather go than him because he’s too weak”. She said something like “Yeah, all right, a hundred per cent I’ll do it”. She said “I’ll prove my genuine, like how genuine I am”.

38. Witness L gave evidence of the meeting at the park in Granville. He said that it was there that Farhad Qaumi asked Witness M to repeat what she had been told. Witness L’s account was very similar to that of Witness J. He gave a similar account to that of Witness J of Witness M describing a failed attempt to murder Farhad Qaumi by Mohammed Hamzy. Witness L said that she volunteered to be the driver.

39. It is not necessary to go into the detail of the shooting of Mahmoud Hamzy. Briefly stated, Witness M drove three people, including Witness L and Jamil Qaumi, each of whom was armed, to his home. The three shooters entered the garage and fired shots. Mohammed Hamzy escaped but his cousin, Mahmoud Hamzy, was killed and Omar Ajaj, a member of the Bankstown BFL, was wounded.

The Casino meeting on 2 November 2013

40. There was no dispute that on the night of 2 November 2013 the applicants with Witness J, Witness C, Witness I, Witness D and Witness L attended the Star City Casino. Their movements while there were recorded on CCTV. Farhad Qaumi had conversations with Ahmed Glebe and “Stretch” who were thought to be associated with the Bankstown BFL. Witness L saw the encounter between Farhad Qaumi on the one hand and Ahmed Glebe and “Stretch” on the other. Witness L said that he heard Farhad Qaumi deny that he had anything to do with the Hamzy shooting.

41. Witness I gave evidence that after Farhad Qaumi spoke to Ahmed Glebe and “Stretch” he appeared upset and angry. There was evidence that in these conversations they told Farhad Qaumi that he was suspected of being behind the Hamzy killing.

The meeting after leaving the Casino on 2 November 2013

42. What was very much in dispute was whether or not there was a meeting in the vicinity of the Royal Botanic Gardens immediately following the departure from the Casino. Witness L gave evidence about a meeting which took place after they left the Casino in the vicinity of the Royal Botanic Gardens. He said that Farhad Qaumi, Mumtaz Qaumi, Witness J and himself attended that meeting while Jamil Qaumi went to drop someone else off.

43. Witness L gave this evidence:

“Q. Where did you go?

A. From there we went to the - like it was like a park area, we went through there. We parked the car, we left everything in the car so we walk up, we start talking.

Q. Had you been to this park before?

A. No.

Q. Where was this park?

A. I wouldn't have a clue.

Q. Was it far from the casino?

A. Little bit of driving.

Q. So who was at that location?

A. The four of us, we were walking. Then Farhad started talking.

Q. So the four of you?

A. Yes.

Q. The same four being Farhad, Mumtaz?

A. [Witness J] and myself.

Q. [Witness J] and yourself?

A. Yes.

Q. You said Farhad started talking?

A. Yes.

Q. What do you recall?

A. I remember him saying – he was talking about Ahmed Glebe, he's telling him, "Be careful", he goes to him, “Be careful”. He goes – I can't say the other bit, you know. Then he goes, “Oh, they going to retaliate on us, you know what I mean, so we got to do something about it”. Then he seen people walking their dogs and all stuff, he goes, “Let's get out of here, let's get out of here”, so we jump in the car again, we took off somewhere else. That was next to harbour, like water everywhere, so we went down the stairs and started talking there.

Q. Was it far from this – you were in this park?

A. Yes.

Q. You then drove, went from that park to another location near the harbour you're talking about?

A. Yes.

Q. Was it far from the park?

A. I didn't take time but it was a little bit of driving we got there.

Q. Who is present at this location?

A. Same people again.” (T.2827.8-2828.11, 8.6.2016)

44. According to Witness L, at this meeting of the four men Farhad Qaumi announced what effectively was a roll-call of people to be shot. Witness L gave this evidence:

“Q. What names did they say?

A. He wanted to get LC again but he was under the police custody after the time, I don’t know, they put him in a hotel or somewhere but he wanted to still get him. Then he wanted to get LC’s brother. He wanted to get Omar Ajaj again. He wanted to get Mikey.

Q. Who’s Mikey?

A. Michael Odisho. Then Masood, I don’t know Zakaria, whatever his name is, then he wanted to get Khaled Hamzy, this other bloke, I forget his name at the moment he had the money. He goes “We have to get him too ‘cos he’s gonna put up the money for people to come and get us”. That’s roughly what I remember. (T.2828-9, 8.6.2016)

…

Q. Was there anything further said about that?

A. Yes. Basically after that he made three shooting teams after that.

Q. Is that something that was said?

A. Yes because to me Mohammed Zarshoy and Jamil Qaumi is the second shooting team. The first shooting team is going to be [Witness C], [Witness D] and [Witness I] and the third shooting team is going to be Farhad Qaumi, Mumtaz Qaumi and [Witness J].

Q. All right. Was there further conversation?

A. So the conversation was in case like the first one goes under we got the backup team and then if something happened to us then we’d got the last team. And he goes “I’m going to put my vest on, bullet proof vest, I’m going to get my scares. I’m going to run into houses, I’m going to start shooting at them.” (T.2829, 8.6.2016)

45. The applicants submitted that this alleged meeting would be sufficiently memorable for a witness to have some memory of where he was when this conversation took place. They submitted that Witness L was given every opportunity to describe where he was when the meeting took place. They submitted that he was unable to do so and that his answers were vague and unhelpful.

46. The evidence of Witness L thus criticised was as follows:

“Q. You say there was a meeting at a park, is that right?

A. Yes.

Q. How far did you have to drive from the Casino to get to the park?

A. Not sure.

Q. Well, was it a few minutes or a few hours or something in between?

A. No, no, it wouldn't be few hours.

Q. From the park, could you see the Harbour Bridge?

A. No.

Q. I beg your pardon?

A. I don't think so.

Q. Could you see the harbour?

A. I don't think so.

Q. Were you on the north side or the south side of the harbour?

A. I'm not good at the city. I don't know.

Q. Were you on the east side or the west side of the Harbour Bridge?

A. I wouldn't have a clue.

Q. Were you still in the Central Business District?

A. I wouldn't have a clue.

Q. Is it the case that you can't give us the faintest idea in the city, the greater City of Sydney where this park was, is that your position?

A. Because I don't go to city. How am I meant to know?” (T.2937.29-2938.8, 9.6.2016)

“Q. Yesterday I was asking you about the location of the park, is that right?

A. Yes.

Q. You were unable to tell us if it was on the north or south side of the harbour, is that right?

A. As I said, I don't know the city.

Q. Well, have you ever been on the Harbour Bridge?

A. Which one is the Harbour Bridge. The one that the car goes over?

Q. The Harbour Bridge, it is at the north end of the Central Business District of Sydney, takes cars and trains to North Sydney, are you familiar with that?

A. Yes.” (T.2967.36, 10.6.2016)

“Q. That night, did you cross the Harbour Bridge?

A. Can't recall.

Q. Can't remember?

A. Yes.

Q. Do you say this park was in a suburb near the city?

A. Yes. Near the casino.

Q. It was near the casino?

A. Yes.

Q. Was it near the harbour?

A. I don't know.

Q. Could you see the harbour from the park?

A. Not from the park.

Q. Could you see the Opera House?

A. No.” (T.2968.6, 10.6.2016)

“Q. How long did it take you to get from the carpark of the Casino to this park?

A. Not far.

Q. How long?

A. I don't know, I didn't take time.

Q. Did it take you about five minutes?

A. No, more.

Q. How long did you stay at the park?

A. I don't know. Under half an hour, under an hour.

Q. Did you go somewhere after you left the park?

A. Yes, next to the water.

Q. So you went to the harbour, is that right?

A. Not the harbour. It was like next to a water sort of thing but you can see the harbour from far distance.

Q. When you say it was near the water, are you saying it was near a river or a lake?

A. It was like a stairs sort of thing. We went down, there was like a concrete wall sort of thing but over it was the water. And you could see the far distant Harbour Bridge.

Q. What was the water that you could see? Was it the harbour or was it something else?

A. Harbour.

Q. So you say you were near the harbour?

A. Yes.” (T.2968-2969.21, 10.6.2016)

47. The applicants submitted that Witness L was being deliberately vague so that he could avoid being caught out. They submitted that the meeting which he described could not have happened at the Royal Botanic Gardens because there was evidence that the gates are locked at night and Witness L said that he did not have to climb over a fence. They submitted that if he were on the west side of the Royal Botanic Gardens, he would have had a good view of the Sydney Harbour Bridge.

48. The applicants submitted that while there was no CCTV coverage of the purported meeting after the visit to the Casino, there was evidence of cars driven by members of the group out of the Casino carpark. Witness L said that he left the carpark in a car driven by Mumtaz Qaumi. The applicants challenged that evidence because CCTV showed Mumtaz Qaumi driving a white car with no passenger. There was a red car driven by Witness J with no passenger. Farhad Qaumi was shown driving a white RAV 4 with someone in the passenger seat, who did not appear to be Witness L. Jamil Qaumi was shown driving a silver Honda Accord with a passenger who (it was submitted) was Witness L. Witness L denied that he was the passenger in the car driven by Jamil Qaumi.

49. Witness L denied that he was driven from the Casino by Jamil Qaumi and denied that he and Jamil Qaumi stopped to have a meat pie and then Jamil Qaumi drove him home. Witness L denied the proposition that no meeting took place after he left the Casino (T.2967, 10.6.2016)

50. The applicants submitted that Witness L was very vague about times. He agreed that when he got home it was “pretty late”, “about 4.30, 5 o’clock”. Witness L could not remember how he got home after the alleged meeting which (it was submitted) had it occurred, would have been memorable.

51. Witness L volunteered that it might have been Witness J who drove him home. (It was common ground that Witness L did not drive, was unlicensed and did not own a car.) Witness L could not remember ringing Witness J to pick him up.

52. The applicants noted that when Witness J was asked in cross-examination whether he attended a meeting after leaving the Casino, he responded that he “did not recall”(T.4147, 5.7.2016). The applicants submitted that if Witness J had been present at the meeting, as described by Witness L, he would certainly have remembered it.

53. Witness D said that after the Casino meeting, Mumtaz Qaumi took him to North Sydney Railway Station on his way back to the Central Coast. Jamil Qaumi gave evidence that he left the Casino with Witness L and that they had a pie at Harrys Café de Wheels and then he drove him home.

54. The applicants challenged the reliance which the Crown had placed on telephone records and telephone signals received by cell towers. They referred to evidence from Mr Chang from Optus that the maps which he produced were maps of “probable cell tower coverage” rather than “possible cell tower coverage”.

55. Mr Chang agreed that topography was relevant to which tower would be the tower with the strongest signal and that in the CBD the topography was very complex because of the number of large buildings. He explained that the mathematical model used by Optus did not take into account individual buildings but simply used an “averaging system” for the model. Mr Chang agreed that because the signal travels more strongly over open water, telephone records might record a signal as being on the north side of the harbour when it was in fact on the south side. Mr Chang agreed that the diagrams of probable cell tower coverage were a very rough guide to the location of telephones.

47. The Crown called Jonas O’Brien from Vodafone on the same topic. He said that Vodafone used an “averaging” process for their mathematical models about cell tower coverage. Unlike Mr Chang, he was not prepared to agree that the diagrams were only a rough guide to the location of telephones but did agree that the maps only indicated the most probable area from which the call was made. He agreed that it was possible for a call which was made outside the area to connect with a tower associated with the area.

48. The reference to diagrams was a reference to the colour coded maps produced by Messrs Chang and O’Brien in which the coloured areas indicated cell tower coverage. The areas coloured blue, purple and gold related to the Royal Botanic Gardens and parkland surrounding them.

49. The applicants submitted that by reference to Exhibits 10Ms, 68 and 10Hs it could be seen that the location of the phones of Witness L and Witness J were not consistent with the timings of the meeting provided by Witness L. Cell tower records showed that at about 12.14am the phone associated with Witness L was in the light blue area described as “Wynyard West New A4 and C4” in Exhibit 10Hs. The applicants submitted that these calls were consistent with Farhad and Witness L simply driving around the city, not necessarily together, after leaving the Casino. The applicants noted that between 12.54am and 1am the phone associated with Farhad Qaumi was said to be within the area of probable coverage of the tower “Royal Bot Gard A-2” which is the dark green area in Exhibit 10Hs and the southern most area of the Royal Botanic Gardens. The applicants noted that a telephone call took place involving the phone associated with Witness J at 1.35am when the phone was at Granville. Yet on the Crown case, Witness J was present during the meetings. However, the applicants accepted that at 2.51am the phone associated with Witness J was in the area marked “Royal Botanic Gardens”. This could best be explained by Witness J leaving the Casino about midnight, going to Granville and then for an unexplained reason, returning to the city.

50. The applicants submitted that what the phone records did not do was place Witness L and Farhad Qaumi in the same tower coverage area at the same time at any time after leaving the Casino in the early hours of 3 November 2013. They submitted that what the phone records did establish was that Farhad Qaumi, Mumtaz Qaumi and Witness J were not in the same area at the time when Witness L claimed they were having a meeting at a location he could not identify in the early hours of 3 November 2013.

51. The Crown was able to establish that in at least one case, after the cars had left the Casino, one of the passengers had got out of the car in which he was travelling (which was that driven by Farhad Qaumi) and had got into the car driven by Witness C. The Crown was also able to establish that the evidence of Witness D was incorrect as to both the time that he left the Casino and with whom he left the Casino. His evidence was that he had been driven from the Casino by Mumtaz Qaumi whereas Witness C remembered driving him home from the Casino that night. Moreover, Witness D was observed by the police outside the Casino after 11.45pm and so could not have left the Casino in Mumtaz Qaumi’s car. The Crown submitted that this evidence from some of the drivers, together with the CCTV coverage of the cars departing from the Casino, did not exclude Witness L travelling with Mumtaz Qaumi or somebody else to the CBD as he asserted in his evidence.

52. The Crown accepted that Witness L was unable to identify the location of the two parks to which he was driven after leaving the casino. Significantly, however, he was able to say that the second park was next to a body of water and from which the Sydney Harbour Bridge and Sydney Harbour could be seen in the distance. Witness L described stairs which they descended and a concrete wall. The Crown further noted that although the Royal Botanic Gardens are surrounded by a fence, and are closed between 8pm and 7am, the fence does not enclose the whole of the public parkland in that area and that the road to Mrs Macquarie’s Chair is open 24 hours a day. Exhibit 11Q showed what was and what was not fenced within that area. The Crown submitted that the description given by Witness L for the second park would certainly fit that part of Mrs Macquarie’s Chair which at all times is accessible to the public. That area contains steps, is next to the harbour and there are places where the Harbour Bridge can be seen.

53. In relation to the criticism that Witness L was deliberately vague as to the location of the second park, the Crown submitted that it was significant that Witness L did not drive a motor vehicle nor did he know the city. At the time of the Hamzy shooting, he was living in Blacktown. He was driven to the two parks, rather than making his own way there, in the early hours of the morning when it was dark. It is also of significance that having an unscheduled meeting in a park for security purposes was a normal occurrence for members of the Blacktown BFL.

54. The Crown submitted that to criticise Witness L for his lack of ability to describe the locations of the two parks within which he, Farhad Qaumi and Mumtaz Qaumi spent some after leaving the casino, is to ignore the reality of a migrant living in Blacktown, who did not own a car nor have a driver’s licence and whose experience of the Blacktown BFL included meeting in a variety of parks and being driven to and from them by other gang members.

55. The Crown submitted that evidence from the telephone records suggested that Witness J, Farhad Qaumi, Jamil Qaumi and Witness L left the Casino at just after midnight on 3 November 2013. It noted that Farhad, Mumtaz and Witness L were Optus subscribers whereas Witness J was a Vodafone subscriber. The Crown noted that cell tower sites associated with the use of Farhad Qaumi’s mobile telephone were associated with the Royal Botanic Gardens A-2 cell site. Cell sites associated with the use of Witness L’s mobile telephone between 12.14am and 1.51am included the Royal Botanic Gardens D-1 and Royal Botanic Gardens B-1 cell sites. Probable coverage from the Royal Botanic Gardens cell site was mapped in Exhibit 10Hs based on material from the predicted probable coverage maps (Exhibit 10F). The colour coding was further explained in Exhibit 68.

56. Raymond Chang explained the concept of predicted probable coverage. Possible coverage from cell sites appears to be more extensive than the probable coverage. Accordingly, predicted probable coverage does not chart the limits of coverage from a cell tower.

57. Mr Chang agreed with the proposition that the diagrams/maps of probable cell tower coverage were a very rough guide to the location of a mobile telephone. The Crown submitted that no matter how rough the guide, Witness L’s mobile telephone records for that night and early morning suggest he was at least in the Sydney CBD and certainly not home in Blacktown. He was more likely to have been seen with Farhad Qaumi than with Jamil Qaumi simply because of the correlation between the cell sites associated with their mobile telephone use.

58. The Crown submitted that cell sites associated with the use of Farhad Qaumi’s mobile telephone between 12.16am and 1am placed him at least within the Sydney CBD. Farhad Qaumi telephoned Mumtaz at 3.20am. The cell tower locations of Farhad and Mumtaz with respect to that call are consistent with the two of them having been stopped separately by police near Roseville at 3.30am and by inference, when they were on their way home to the Central Coast. A telephone call by Witness J associated with a Vodafone cell site at the Royal Botanic Gardens was made at 2.51am at a time consistent with him being with Farhad, Mumtaz and Witness L at that time.

59. Jamil Qaumi, after leaving the casino, appears to have remained within the Sydney CBD making telephone calls that went through different cell sites to those associated with the telephone calls of Farhad and Witness L. Jamil Qaumi remained within the Sydney CBD until at least 2.59am. He made his last call that morning at 3.12am.

60. It was put to Witness L that he left the Casino with Jamil Qaumi, who drove him around the city before stopping near the harbour to buy some pies, after which Jamil Qaumi drove him home to Blacktown. Witness L denied that.

61. Jamil Qaumi gave evidence that he drove Witness L to his house in Blacktown and then drove to his sister’s house in Pendle Hill. The Crown submitted that this description of the night incorrectly reduced the time Jamil Qaumi would have had to spend with Witness L, i.e. at least three hours. The Crown submitted that this suggested, as Jamil Qaumi had to acknowledge, at least three hours of aimless driving around the Sydney CBD or a similar lengthy period consuming take away food. The Crown submitted that the jury were entitled to reject that possibility in the context of all of the available evidence with respect to the meeting.

62. Witness L said that Witness J was present during the time that he was in the two parks with Farhad and Mumtaz Qaumi. The Crown noted that Witness J’s telephone call at 12.15am went through a cell site at Pyrmont and was followed by two unconnected calls thereafter to Farhad Qaumi. At 1.35am Witness J’s mobile telephone accessed the internet through a cell site at Granville. At 2.51am a telephone call lasting 46 seconds from that mobile telephone went through a cell tower at the Royal Botanic Gardens. Jamil Qaumi made telephone calls to Witness J at 2.56am, 2.57am and 3.12am. At 3.35am the Granville cell tower site was again used by Witness J to access the internet. The Crown submitted that this was consistent with Witness J returning to his home from the casino, then going back to the CBD before travelling back to the west of Sydney.

63. The Crown submitted that when asked about being present at the meeting and responding that he could not recall, Witness J’s lack of memory might have arisen because there was no such meeting or he may not have been telling the truth or his trip to the city in the early hours of 3 November 2013 was unmemorable.

64. The Crown submitted that the jury would be in the best position to decide which version of events was the more likely. The Crown submitted that Witness J’s return to the city and his telephone call at 2.21am, associated with the Royal Botanic Gardens cell site, suggests that he spent some time, even a short time, together with Farhad Qaumi, Mumtaz Qaumi and Witness L. His travel between the west of Sydney and the Sydney CBD region certainly appears curious for such a late hour and for such a relatively short stay in the Sydney CBD. The Crown submitted that even if Witness J was not with Farhad Qaumi, Mumtaz Qaumi and Witness L, that does not contradict Witness L’s evidence concerning what Farhad Qaumi said while they were in the second park. The Crown submitted that it might be that Witness L was mistaken as to whether Witness J was present for the whole time that the meeting took place.

65. There is one thing which is clear. Witness L did not have access to a vehicle. His preferred method of travel was to be driven by one of the Blacktown BFL members. When he is shown to be in the CBD early in the morning of 3 November 2013, this raises the question of how he got there and how he was able to return home to Blacktown. There is no suggestion that he used a taxi or some other means of hired transport. The overwhelming inference is that one of the Blacktown BFL members drove him to the CBD and either that person or another member of the gang drove him home.

66. On the analysis of the telephone and cell tower material, it cannot be said that the evidence of Witness L should not be accepted because the scenario described by him could not have possibly occurred. Given the imprecise nature of the cell tower material, the discussion in the second park may well have occurred. It is certainly not precluded by the cell tower material. Ultimately, the resolution of the issue depended upon whether the jury accepted the evidence of Witness L. If they did, that evidence can be reconciled with the limited information available from both the cell towers and the mobile phone records.

67. I accept the Crown’s submissions on this issue. The question of whether or not Witness L was telling the truth concerning this meeting was a question of fact to be resolved by the jury. The jury were in a significantly better position to make that decision than is this Court. They had the opportunity of not only seeing and hearing Witness L give his evidence but of assessing other important witnesses such as Witness J. In those circumstances, it was well open to the jury to accept the evidence of Witness L in relation to the second meeting in a park after the departure from the casino. It could certainly not be said that in accepting the evidence of Witness L (as the jury obviously did) that they had acted unreasonably and that such a finding was not available on the evidence.

68. There was a broader challenge to the evidence of Witness L based upon what was said to be his lack of credibility.

69. The applicants submitted that Witness L received an extraordinary number of benefits for his plea of guilty and his assistance to the authorities. The applicants submitted that despite his admitted involvement in the killing of Mahmoud Hamzy, he was never charged with his murder or with conspiracy to murder or shoot with intent to murder Mahmoud Hamzy. He received a 60 per cent discount on his sentence for his plea of guilty and his assistance.

70. The applicants relied upon what was described in submissions as the “three way” conversation between Witnesses G and I on the one hand and Witness L on the other. This conversation occurred on 21 August 2014 when Witness L was held in a police station with Witnesses G and I. The applicants identified the following aspects of that conversation as indicating a lack of reliability and honesty on the part of Witness L.

71. Firstly, the applicants submitted that it was obvious from the conversation that by that date Witness L wanted to cause the maximum amount of harm to the Qaumis. The applicants submitted that it was clear from the three way conversation that the police had made it very clear to Witness L that it did not matter to them that he was one of the shooters in the Hamzy killing because the real target was Farhad Qaumi. This was confirmed by Witness L in his evidence.

72. The applicants submitted that it was clear from the conversation that Witnesses G and I were suggesting to Witness L that he tell the police a good story and say that he was forced by the Qaumis to act in the way that he did. The applicants submitted that Witnesses G and I were explaining in detail to Witness L the benefits of becoming an informer and co-operating with the police.

73. The applicants submitted that Witness L was quite prepared to tell lies to the police when it suited his purpose. They referred to his statement to the police in his first interview to the effect that Witness J had participated in the Hamzy killing when he knew that this was untrue.

74. The applicants submitted that Witness L was a witness who was prepared to tell deliberate lies to police implicating people in serious crimes who were to his knowledge not involved in those crimes. They submitted that he told police that Witness J was present at the Hamzy shooting and in fact fired a number of shots. He admitted that what he had told police about Witness J’s involvement in that killing were deliberate lies. He justified those lies by saying that Witness J was a cousin of Farhad Qaumi.

75. There are difficulties in seeking to focus upon unsatisfactory aspects of the evidence of a witness such as Witness L when the applicants, their co-accused and many of the significant witnesses and intended victims of the offences were criminals and members of either the Blacktown BFL or the Bankstown BFL and were themselves involved in serious offending.

76. Witness I had been a member of the Blacktown BFL. He and his brother, Witness G, had previously been members of the Parramatta BFL and had transferred to the Blacktown chapter together with Witness L. Witness I participated in the Odisho, Zakaria and Chokolatta Café shootings.

77. It was put, on behalf of the applicants, that because Witness I believed the Bankstown BFL suspected that he was involved in the Hamzy shooting, he had, of his own volition, decided to carry out the Odisho shooting in order to protect himself from possible retaliation. His brother, Witness G, who was arrested on 11 September 2013, had been the Blacktown BFL “enforcer” before his arrest.

78. There was no issue that Witness L was a member of the Blacktown BFL and had participated in the Hamzy and Elkadi shootings. There was no issue that he falsely implicated Witness J in the Hamzy shooting before nominating another person as the third shooter. The jury were well aware of this and had received appropriate warnings from the trial judge. There was no suggestion that the jury did not understand those warnings.

79. Reference has already been made to his conversations with Witnesses G and I. His meeting with G and I was arranged by police and the resulting conversations recorded by listening devices. In both conversations, the participants used colourful language to make their point. The police wanted all three to implicate the Qaumis. There is no doubt that Witnesses L, G and I were motivated by a hatred of the Qaumis and particularly Farhad Qaumi. Further it is plain that all three were motivated by self-interest in reducing their sentences and obtaining better prison conditions. In their conversations with Witness L, Witnesses G and I suggested that he allege that the life of his child was threatened in order to induce him to commit an offence. Significantly, Witness L did not excuse his commission of serious offences on the basis that he or his child had been threatened.

80. The Crown submitted that a lot of what Witnesses G, I and L spoke about when being recorded, is what one would expect from accomplices considering giving evidence on behalf of the Crown. They would need to consider the benefits that might flow to them, including better prison conditions that appear to be available to informer witnesses. They would also need to balance those matters against the risk of being found out as an informer while in prison.

81. The Crown submitted that while it was concerning that Witnesses G and I, in their conversation with Witness L, were seeking ways of reducing culpability by shifting blame, that was well known conduct by accomplices and the jury were warned about that by the trial judge.

82. The Crown submitted that the conversations involving Witness L did not create an obstacle to accepting the evidence of Witnesses G, I and L. The Crown submitted that like all informer witnesses, it was open for the jury to accept some or all of their evidence, taking into account the warnings given by the trial judge and whatever other support existed in the evidence.

83. Throughout the trial, the presiding judge provided the jury with comprehensive warnings concerning the “roll over” witnesses. Those warnings were given, not only during the summing up, but during and at the conclusion of the evidence of the informer witnesses.

84. An example of a typical warning is that given by his Honour at the conclusion of the evidence of Witness L and which is set out at T.3212.11, 16.6.2016:-

“HIS HONOUR: Members of the jury, I am shortly going to allow you to disperse for the day. Before I do that, I am going to give you again an important legal direction about the evidence you have just heard. It is a warning that must be given because again, as with [Witness G] and [Witness M], [Witness L] falls into a category of witness whose evidence may be unreliable.

I have stressed this when I have given you directions about both [Witness M] and [Witness G] that the direction I am giving you is not a direction that [Witness L’s] evidence is unreliable and it is certainly not a direction that you should disregard his evidence. It is up to you and each one of you as the judges of the facts in the court case to assess his evidence along with all of the other evidence you hear in the trial, but in making your assessment you must - I repeat must - take into account this legal warning that his evidence falls into a category that may be unreliable.

In his case, the reason that the warning is necessary is because he is a person who was criminally involved in the very offences about which he has given evidence. That means that he has an interest, a self interest in blaming other people and in minimising his own role in events. In doing that, he had the opportunity to gain a number of advantages and that is not a theoretical proposition in his case. You have heard evidence that he did in fact gain a number of advantages.

As I have said to you earlier in the trial, the history of the courts, the experience of judges and lawyers through the centuries, is that people with a self interest like that, people who played a role in committing the offences that they come to give evidence about, are people who may give unreliable evidence.

You have heard [Witness L] on his own admission, and with the protection as I have explained to you of a certificate that his evidence here could not be used against him, admit that he was involved in many, if not all of the criminal offences with which you are concerned.

He was one of the shooters in the Hamzy killing. There is obviously a dispute between the parties as to who caused the fatal head shot to Mahmoud Hamzy. [Witness L] gave evidence that that was Jamil Qaumi.

It was put to him by Ms Carroll on behalf of Jamil that it was in fact the witness, [Witness L], who delivered the fatal shot. You will recall that he denied that. I again remind you that it is the answer and not the question that constitutes the evidence. Of course, you have to remember that last witness, [Witness M], gave evidence that both of them, in the car going back and later, claimed to have been the one or made an admission to being the one who had shot Mr Hamzy in the head.

Whatever you might make of all of that, the clear and undisputed fact is that the witness went to the house at Revesby Heights armed with a gun and shot, on his own admission, both Mahmoud Hamzy and Omar Ajaj.

He was also actively involved in the conversations that led the group to set out with the intention of murdering Mohammed Hamzy, or Little Crazy. So whoever might have delivered the fatal shot, there is no doubt that he was criminally concerned in the offences that make up count 1, 2 and 3 on the indictment. Those offences, members of the jury, are the most serious of the offences with which you are dealing in this trial.”

94. The Crown submitted that the same considerations and qualifications applied to all the “roll over” witnesses. Witness M was, or was alleged to have been, the instigator of the Hamzy and Chokolatta Café shootings. She was the source of information in the Odisho and Zakaria shootings as to where the targets lived or worked. She was subject to a considerable degree of criticism during the trial and the applicants’ submissions to this Court. As already indicated, in the appeal the Crown made its intention clear, i.e. not to enter into these issues. Rather, the Crown proposed to answer the primary complaint that the verdicts of guilty were unreasonable by relying upon evidence from witnesses other than Witness M unless her evidence was corroborated. The Crown submitted that there was a sufficient body of evidence to justify the applicants’ convictions aside from her evidence.

95. Witness A was a member of the Blacktown BFL. Witnesses I and L introduced him to the gang. He gave evidence of Farhad Qaumi’s control of the Blacktown BFL and said that the Blacktown chapter could not take action without his agreement and/or the agreement of his brothers.

96. Witness J was a cousin of the applicants. He was a member of the Blacktown BFL. He gave evidence that Farhad Qaumi said that he put fear into the members’ hearts and that they would therefore obey him. He did not directly participate in any of the shootings, although he had a role in the Hamzy shooting.

97. Witness C was a member of the Blacktown BFL. His role within the gang was performing the drug run. He was the driver for the Odisho and Zakaria shootings. He was not associated with the conversations in prison between Witnesses G and I on the one hand and Witness L on the other.

98. Witness B was Witness C’s cousin. He was a member of the Blacktown BFL. He first approached police in August 2013 and provided the Middle Eastern Organised Crime Squad with phone numbers, member names and information about the meeting on the day before the Chokolatta Café shooting.

99. Witness D was born in Afghanistan. He was a member of the Hazara ethnic group. He was 21 years old when he gave evidence in July 2016. He had been in juvenile custody in 2013 when he turned 18 years old. There he met Masood Zakaria through whom he joined the BFL. During the time he was a member of the Blacktown BFL, he lived in a hostel in Marrickville and paid his $50 levy to the Blacktown BFL from his Centrelink allowance.

100. Before Witness D gave evidence, the Crown Prosecutor provided the trial judge with a psychological report to assist if he needed to be advised of his right not to incriminate himself, pursuant to s 128 of the Evidence Act 1995 (NSW). Witness D had difficulty remembering conversations and the names of people often simply referring to them as “thing”. His description of how the shooting at the Chokolatta Café occurred indicated his inability to use concepts, such as left and right.

101. Witness D commenced to assist police by 13 March 2014. He played no part in the recorded conversations between Witnesses G, I and L.

102. While the transcript of Witness D’s evidence indicates the difficulty which he had as a witness, he gave evidence of certain incidents in which he was involved and of the participation of the Qaumis. The Crown submitted that he presented as a witness who lacked the guile to do otherwise than provide the unvarnished truth. Farhad Qaumi referred to Witness D as “staunch and a soldier” when he visited Mohammed Kalil and Nazir Akbari in custody. The Crown submitted that Farhad Qaumi’s motivation in relation to Witness D was to take advantage of and use for his own purposes the fact that he was young and, for the reasons set out, malleable.

103. Witness D had reported experiencing hallucinations to health professionals. The Crown submitted that because he had smoked ice since the age of 15, such an outcome was not surprising. The Crown noted that the reports of hallucinations had been to health professionals whom he saw while he was in custody as a juvenile at the beginning of 2013, before he was released and thereafter became a member of the Blacktown BFL. The Crown noted that there were no contemporary reports of hallucinations, a point made by the trial judge when he directed the jury, with respect to Witness D’s evidence, pursuant to s 165 of the Evidence Act. The Crown noted that this evidence was admitted as going to Witness D’s overall reliability but was not relied upon in closing addresses by any defence counsel.

104. In relation to each of the informer witnesses, the Crown accepted that they had issues concerning their reliability. However, the Crown noted that not all of what these witnesses said in their evidence was challenged. The Crown submitted that there was no reason in principle why their evidence, or at least parts of their evidence, could not be accepted. The Crown noted that s 164 of the Evidence Act abolished the requirement for corroboration and the need to give a warning or direction with respect of uncorroborated evidence. The Crown accepted that s 164 could not override factual issues relating to accomplices, including the consideration of whether collusion between them occurred. Nevertheless, the Crown submitted that the evidence of an accomplice who participated in the same criminal offence, but whose assistance to authorities appeared genuine and independent from other accomplices, should be able to be used to support the evidence of those other accomplices. I agree with these submissions.

105. The presiding judge warned the jury concerning the evidence of the informer witnesses. An example of a typical warning has already been given. Those warnings were not the subject of challenge by the applicants. The Crown submitted that it was therefore open to the jury, after taking those warnings into account, to accept in whole or in part the evidence of those informer witnesses despite the criticisms that had been laid against them. Accordingly, it was well open to the jury to accept parts of the evidence of Witness L and to reject others. In making that assessment, the jury had a considerable advantage over this Court.

106. Although Jamil Qaumi was not strictly speaking a “roll over” witness, he was by his own admission, involved in many of the shooting incidents. It was uncontroversial that he had returned to Australia on 11 September 2013, after being overseas for a period, and thereafter resided with his brother Mumtaz in Wyong.

107. Jamil’s evidence included that he had participated in the Hamzy shooting, which he explained as being in self-defence of his brother. It included burning the car that was used to drive the shooters to and from the Hamzy shooting. Jamil Qaumi declined to identify the third participant in the Hamzy shooting, other than himself and Witness L. One issue arising from the Hamzy shooting was whether Jamil or Witness L had shot Mahmoud Hamzy in the head with a .38 revolver.

108. It was also clear that Jamil Qaumi was either present or involved in the Odisho shooting, the Zakaria shooting and the shooting at the Chokolatta Café. It was put to him by the Crown that he was the person who was designated to make sure that “these jobs were done”. Jamil’s response was that “They’re just my friends and I was around” (T.6148.23, 25.8.2016). In accordance with the warning given by his Honour as to the potential unreliability of Jamil’s evidence, it was open to the jury not to accept his evidence when he sought to exculpate himself and his brothers in respect of any of the offences with which they were charged.

The Odisho shooting in Winston Hills on 3 November 2013 – Counts 4 and 5

109. Michael Odisho was a member of the Bankstown BFL. He did not give evidence at trial, having refused to do so. He participated in an ERISP on 19 February 2014 in relation to the Hamzy shooting but said nothing to police about his own shooting.

110. The Crown case was that Witness D and Witness I fired the shots which wounded Odisho. Witness C drove them there and waited in the car while the shooting took place. As a result, the applicants were found guilty of the offences in Counts 4 and 5 under the principle of joint criminal enterprise and extended joint criminal enterprise. It was the Crown case that the applicants incited and directed those persons to shoot Odisho with the intention that he be killed and that their actions amounted to an attempt to murder Odisho.

111. Both sides accepted that the statements of principle in Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 (Bathurst CJ with whom Johnson and Fullerton JJ agreed) accurately set out the considerations which gave rise to a joint criminal enterprise, or an extended joint criminal enterprise. In that regard, it was common ground that in respect of all the shootings neither Mumtaz nor Farhad Qaumi were physically present at the time that the offending took place.

112. Bathurst CJ set out the relevant principles at [41]-[54]:

1. It is well-established that a person will not be liable for a crime committed by another as a result of the principle of joint criminal enterprise merely because the person is a party to an agreement to commit a criminal offence which was subsequently committed by one of the other parties to the agreement. To be liable the person concerned must participate in the commission of the offence.

2. In Osland v The Queen supra, McHugh J explained the operation of the principle in the following terms:

   “[72] However, there is a third category where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category, the liability of each person present as the result of the concert is not derivative but primary. He or she is a principal in the first degree. In that category, each of the persons acting in concert is equally responsible for the acts of the other or others. The general principle was clearly stated in R v Lowery and King [No 2] by Smith J who directed the jury in the following terms:

   ‘The law says that if two or more persons reach an understanding or arrangement that together they will commit a crime and then, while that understanding or arrangement is still on foot and has not been called off, they are both present at the scene of the crime and one or other of them does, or they do between them, in accordance with their understanding or arrangement, all the things that are necessary to constitute the crime, they are all equally guilty of that crime regardless of what part each played in its commission. In such cases they are said to have been acting in concert in committing the crime.’

   [73] In that case, his Honour directed the jury that ‘they are all equally guilty of that crime’. But as subsequent cases show, and as principle requires, the correct statement is that they are all equally liable for the acts that constitute the actus reus of the crime. The principle is accurately stated by Brett, Waller and Williams in the 8th edition of their work on Criminal Law:

   ‘[E]ven if only one participant performed the acts constituting the crime, each will be guilty as principals in the first degree if the acts were performed in the presence of all and pursuant to a preconceived plan. In this case, the parties are said to be acting in concert.’ (Emphasis added.)

   So far as is presently relevant, these principles were accurately and more fully stated by the New South Wales Court of Criminal Appeal in R v Tangye. The Court said:

   ‘(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

   (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

   (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed.’ (Emphasis added.)

…

[79] The principle that those who act in concert and are present at the scene are responsible for the acts of the actual perpetrator operates to make a person guilty of the principal crime, even though the actual perpetrator is acquitted completely. Thus, the person who did the act may be legally insane. Yet as long as that person had sufficient mental capacity to enter into the arrangement or common understanding, the other participant present at the scene will be guilty of committing the principal crime if he or she has the relevant mens rea. In Matusevich v The Queen, this Court decided that, when two persons are said to be acting in concert, the fact that the actual perpetrator is legally insane does not necessarily mean that the conviction of the other, who was present at the scene, should be quashed. If the actual perpetrator has sufficient capacity to enter into the agreement or understanding, the person present at the scene who was acting in concert may be convicted of the offence.

…

[93] Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other's acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime [Footnotes omitted].”

1. His Honour’s explanation of the principle was approved by the High Court in Huynh v The Queen supra. The Court made the following remarks:

   “[37] The respondent's written submissions acknowledged that joint enterprise liability requires proof of the agreement and of the accused's participation in the enterprise. However, on the hearing of the appeals the respondent resiled from that submission in favour of the contention that ‘one plays a part at its most simple by joining into the agreement’. That contention conflated the making of the agreement (whether tacit or express) with participation in its execution and confused liability for conspiracy with liability for the offence that is the subject of the conspiracy. Under the common law the agreement of two or more persons to commit a crime is, without more, a conspiracy. Parties to a conspiracy are liable to conviction for that offence regardless of whether the crime that is the subject of their agreement is committed. The doctrine of joint criminal enterprise provides the means of attaching liability for the agreed crime on all the parties to the agreement regardless of the part played by each in its execution. Of course there will usually be no occasion to have recourse to the doctrine in the case of a party who does some or all of the acts constituting the actus reus. The work done by the doctrine is in making other parties liable for those acts. The principles are as explained by McHugh J in Osland v The Queen. Liability attaches to all the parties to the agreement who participate in some way in furthering its execution.

   [38]    A person participates in a joint criminal enterprise by being present when the crime is committed pursuant to the agreement. The unchallenged evidence was that each appellant was one of a larger number of persons who had travelled from Duong's house to the Vartue Street premises. No nice question arises in these appeals of the sufficiency of the evidence to prove participation in the enterprise. If, at any time prior to the stabbing, the appellant whose case was under consideration was found to have come to an understanding or arrangement with others, including the principal offender, that a knife or similar bladed weapon would be used to kill or to inflict really serious bodily harm on a person or persons at the Vartue Street premises, his presence as one of the hostile group amounted to participation in furtherance of the agreement.”

1. This finding on the balance of probabilities that the offender was acting under duress is an important factor in a comparative and relative assessment of the objective criminality in the present case.”

   466. His Honour found at [50] (my emphasis):

“I agree with those remarks and accept that the present case falls below the ‘worst case’. When one considers the element of duress which is particularly significant in relation to this count, the offending falls well outside of the worst case when viewed objectively and dispassionately. That finding should not be interpreted to suggest that the offending is not extremely serious and approaching the top end of the range of offences encompassed by the crime of murder. The offence was committed on parole as part of a well-executed and chilling criminal plot which involved the taking of human life for profit. For the purpose of a consideration of the standard non-parole period, the offence falls above the mid-range of objective seriousness.”

467. A vital point of distinction in the sentencing of these three offenders was the finding by the sentencing Judge that NK acted under duress when carrying out the Antoun murder. This was not simply a case of the killer (NK) committing the murder at the request of the organisers (Farhad Qaumi and Mumtaz Qaumi). This case involved the killer committing this act under duress, a conclusion which affected his moral culpability and bore upon the objective seriousness of his offence: Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 at [30]ff; Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [112].

468. When sentencing Farhad Qaumi and Mumtaz Qaumi for the Antoun murder, his Honour said that he was unable to be satisfied beyond reasonable doubt that those Applicants had threatened NK and his daughter (see ROS[46] at [386] above). Accordingly, his Honour made different findings on that issue which flowed from the different evidence before the Court on sentence and the different standard of proof applicable concerning a mitigating factor (for NK) as opposed to an aggravating factor (for Farhad Qaumi and Mumtaz Qaumi). The objective bystander would take into account this very important difference in considering whether there was a proper objective foundation for the claim of legitimate grievance arising from NK’s lesser indicative sentence for the Antoun murder.

469. Further and significantly, the sentencing Judge had regard to the sentence imposed on NK for the Antoun murder as an important factor in concluding that an aggregate sentence of life imprisonment should not be imposed on Farhad Qaumi and Mumtaz Qaumi (see ROS[198] at [417] above and ROS[207] at [423] above). This is an important and unusual feature which does not assist Farhad Qaumi and Mumtaz Qaumi on their parity grounds.

470. It is necessary to keep in mind, as well, that with respect to each of NK, Farhad Qaumi and Mumtaz Qaumi, an aggregate sentence was imposed with the indicative sentence for the Antoun murder being one component only (albeit a large component) of that aggregate sentence. There was a significant level of notional accumulation applied which operated in favour of Farhad Qaumi and Mumtaz Qaumi, after the discretionary determination was made that a determinate sentence, and not a life sentence, should apply to each of them.

471. It is not contended that his Honour applied an incorrect principle or made a factual error in his consideration of this aspect. Rather, the ground asserts error in the outcome by comparison of the sentences imposed upon NK, Farhad Qaumi and Mumtaz Qaumi for the murder of Joseph Antoun.

472. The sentencing Judge applied the correct principles in considering issues of parity and proportionality. Further, his Honour considered several sentencing decisions for contract killings in determining the appropriate sentences to be imposed on NK, Farhad Qaumi and Mumtaz Qaumi arising out of the Antoun murder.

473. His Honour was well aware of the approach adopted on sentence in the particular circumstances of those cases. His Honour explained his approach on sentence for Farhad Qaumi and Mumtaz Qaumi for the murder of Joseph Antoun, being fully alive to the sentencing decision made with respect to NK for the same crime.

474. The sentencing Judge undertook a close examination of the points of similarity and difference for the purpose of sentence and reached a conclusion concerning sentence which had regard to considerations of parity and proportionality. It was open to the sentencing Judge to reach the conclusions which he did. Farhad Qaumi and Mumtaz Qaumi have not demonstrated an objective foundation for a legitimate sense of grievance by reference to the indicative sentence for NK concerning the murder of Joseph Antoun.

475. I reject these grounds of appeal.

Claim of Error in Finding Concerning Objective Criminality for the Conspiracy to Murder Charge in Count 3 (Jamil Qaumi Ground 5)

Submissions of the Parties

476. It was submitted for Jamil Qaumi that error had been demonstrated in his Honour’s approach on sentence with respect to Count 3 in light of the verdict returned by the jury on Count 1. His Honour nominated an indicative sentence of imprisonment for 12 years and six months for the manslaughter of Mahmoud Hamzy (Count 1) and an indicative sentence of imprisonment for 10 years for conspiracy to murder Mohammed Hamzy (Count 3).

477. It was submitted for the Applicant that the jury’s verdict of Count 1 reflected excessive self-defence which reduced the offence from murder to manslaughter. It was submitted that the sentencing Judge should have reflected this aspect in sentencing for Count 3 although accepting that it was open to the jury to find Jamil Qaumi guilty of conspiracy to murder.

478. It was submitted that the sentencing Judge should have either:

1. found that the manslaughter offence (based as it was on an acceptance by the jury of the subjective element for self-defence, but finding that excessive force had been used) involved criminality that was less than mid-range and accordingly arrived at an indicative sentence that was less than that indicated; or

2. avoided double counting by determining that no (or at worst) a small indicative sentence was relevant for the conspiracy charge and so indicated.

479. It was submitted that such an approach was required in this case to avoid double punishment in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40].

480. The Crown submitted that the offences contained in Counts 1 and 3 involved different criminality so that the approach taken by the sentencing Judge was open in the circumstances of the case.

Decision

481. It was open to the sentencing Judge to nominate the indicative sentences selected for Jamil Qaumi for Counts 1 and 3. The conspiracy offence contained in Count 3 was based upon an agreement to murder Mohammed Hamzy in a type of pre-emptive strike in the belief that Mohammed Hamzy was seeking to kill Farhad Qaumi. This arose in the context of a gangland feud where resort to force on either side of the conflict involved serious outlaw activity. These aspects were relevant to the objective gravity of the offence in Count 3.

482. The verdict of manslaughter based upon excessive self-defence arose from the direct circumstances surrounding the killing of Mahmoud Hamzy, mistakenly taken by the killers for Mohammed Hamzy. In my view, this is not a case where it can be said that the manslaughter offence wholly or substantially reflects the criminality contained in the conspiracy offence as well so as to invoke the principles sought to be relied upon by Jamil Qaumi.

483. His Honour was clearly alive to factors which bore on sentence for Counts 1 and 3 (see ROS[13]-[14] at [357] above and ROS[172] at [414] above).

484. Further, Jamil Qaumi asked the sentencing Judge to take into account on sentence for Count 1 other serious offences included on a Form 1. His Honour explained how those matters were taken into account on sentence for Count 1 (see [389] above).

485. In any event, his Honour imposed an aggregate sentence which did not (of course) nominate the level of actual accumulation as between the sentences for Counts 1 and 3, which formed part only of the total criminality for which an aggregate sentence was imposed for Jamil Qaumi. It will be apparent from an examination of the indicative sentences, and the aggregate sentence passed, that there was a high level of notional accumulation which operated in favour of Jamil Qaumi. His Honour noted the overlapping aspects as between Counts 1 and 3 and sought to avoid any double counting of factors when dealing with these offences.

486. I reject this ground of appeal.

Alleged Error in Assessment of Objective Seriousness with Respect to Counts 2 and 3 (Mumtaz Qaumi Ground 8)

Submissions of the Parties

487. It was submitted for Mumtaz Qaumi that the sentencing Judge fell into error with respect to Counts 2 and 3 in finding that the objective criminality lay in the middle range of objective seriousness.

488. With respect to Count 3, reliance was placed upon the self-defence aspect which it was said ought bear upon the assessment of objective seriousness for the offence of conspiracy to murder. It was submitted that a finding ought to have been made that the objective criminality lay well below the mid-range of objective seriousness for offences of this type.

489. The Crown submitted that the assessment of objective seriousness by the sentencing Judge was open with respect to each of these counts.

Decision

490. A challenge to an assessment of objective seriousness of an offence is in the nature of a challenge to a discretionary finding by a sentencing Judge: Mulato v R [2006] NSWCCA 282. Such an assessment is quintessentially one for the sentencing Judge and this Court is slow to interfere with such an assessment: Mulato v R at [37], [46].

491. It was well open to the sentencing Judge to determine that the offence of causing grievous bodily harm to Omar Ajaj (Count 2) lay in the middle range of objective seriousness with an indicative sentence of imprisonment for eight years and a non-parole period of six years also being open in the circumstances of the case. As Hamill J recounted, Omar Ajaj had the misfortune to be present in the garage at the time of the shooting of the wrong Hamzy and he was also shot and sustained significant injuries to his abdomen and leg (ROS[8] and [12] at [356] above and ROS[104]).

492. With respect to conspiracy to murder Mohammed Hamzy (Count 3), it was open to the sentencing Judge to find that the offence was in the middle range of objective seriousness with an indicative sentence of imprisonment for 10 years with a non-parole period of 7.5 years.

493. The aspect of self-defence relied upon with respect to Count 3 did not, in the circumstances of this case, call for a finding that the offence lay other than in the middle range of objective seriousness. As noted with respect to Jamil Qaumi (at [481] above), this offence arose in the context of a gangland feud where resort to force on either side of the conflict involved serious outlaw activity.

494. His Honour made careful assessments of objective seriousness concerning these offences which were well open in the circumstances of the case. Error has not been demonstrated under this ground of appeal.

Claim that the Aggregate Sentence was Manifestly Excessive (Farhad Qaumi Ground 4; Mumtaz Qaumi Ground 7)

495. As the Court will proceed to resentence each Applicant as a result of the finding that error has been demonstrated in the reliance upon erroneous standard non-parole periods and the acquittal of Farhad Qaumi and Mumtaz Qaumi on certain counts, it is not necessary to address the grounds asserting that the aggregate sentences were manifestly excessive. The matters raised concerning these grounds of appeal will be taken into account in resentencing the Applicants.

Resentencing the Applicants

496. In performing its function under s.6(3) Criminal Appeal Act 1912, the Court should take into account all relevant matters in exercising its independent sentencing discretion to form its own view of the appropriate sentences: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]. The Applicants did not place any additional evidence before this Court concerning events since the imposition of sentence on 16 June 2017.

497. Subject to what follows, apart from the particular findings challenged in specific sentence grounds of appeal which have now been determined, the Court was not asked to make any different findings concerning the objective seriousness of offences nor other aspects of the case including the Applicants’ subjective circumstances.

498. Counsel for the Applicants were content for the Court to proceed to resentence upon the material before the sentencing Judge and utilising the findings made by his Honour which, in many respects, operated favourably to the Applicants.

Farhad Qaumi

499. The crimes for which Farhad Qaumi was sentenced occurred between 29 October 2013 and 8 January 2014. Farhad Qaumi was 31 years old at the time of these offences.

500. Farhad Qaumi challenged the indicative sentence for the Antoun murder which constituted the largest indicative sentence for the purpose of fixing an aggregate sentence. It was submitted that, given the objective circumstances of that offence, the indicative sentence itself was manifestly excessive.

501. I do not accept this submission. The challenge to the indicative sentence for the Antoun murder was touched upon earlier (when considering the parity ground) where, reliance was placed upon other sentencing decisions for contract murders (see [472]-[473] above).

502. As the findings of the sentencing Judge make clear, the murder of Joseph Antoun was a crime of considerable magnitude which, of itself, attracted careful consideration by his Honour as to whether a sentence of life imprisonment was appropriate (see ROS[51] at [386] and ROS[214] at [423] above). The indicative sentence nominated for this offence was clearly open.

503. Farhad Qaumi stood to be sentenced as well for a series of other very serious crimes, including manslaughter and a range of other crimes of violence arising from organised criminal gang activity.

504. With respect to Counts 19, 21 and 22, there was a misstatement concerning the standard non-parole period. His Honour acted upon the common position of the parties that the standard non-parole periods for each of these offences was four years when the true position was that the period was three years. This was an extremely limited error for offences where the firearms in question were utilised in actual crimes of violence so that, as the sentencing Judge observed (at ROS[121] at [406] above; ROS[140] at [410] above), there was a significant element of notional concurrency to be factored into the determination of an aggregate sentence.

505. For Farhad Qaumi, it is appropriate to retain the findings of objective seriousness made by the sentencing Judge with respect to all offences except Count 18 where an acquittal is to be entered.

506. The offence in Count 18, which is to be disregarded, attracted an indicative sentence of imprisonment for six years with a non-parole period of four-and-a-half years. Although firearms were used in the commission of this offence, no injury to any person could be taken into account on sentence. I mention this because the removal of this offence for the purpose of determining an aggregate sentence has, in my view, limited impact on the ultimate sentencing outcome.

507. The sentencing Judge applied the totality principle in a manner which operated favourably to Farhad Qaumi. Despite the gravity and repetition of very serious crimes, he avoided imposition of a life sentence with some hope being left open for his release, albeit very many years away.

508. It will be apparent from an examination of the aggregate sentence and the indicative sentences that there was a substantial allowance by way of notional concurrency for the variety of very serious crimes carried out by, or on behalf of, Farhad Qaumi in pursuit of his ambition to expand his criminal network.

509. Farhad Qaumi used a range of persons to commit serious crimes of violence to further his own criminal ends. His adverse personal background operated as a principal factor to spare him from a sentence of life imprisonment which might otherwise have followed given the gravity and number of serious crimes carried out under his leadership (see the principles and cases referred to at [392]-[399] above).

510. Farhad Qaumi has a significant criminal history for offences of violence. Hamill J referred to his criminal history (ROS[81]:

“Farhad’s criminal history spans over 20 years with his first conviction recorded in June 1996 at the age of 13. The convictions are for a diverse range of offending including driving while disqualified, aggravated robbery, possession of an unregistered firearm and causing grievous bodily harm to a person with intent to murder. While he has previously been sentenced to terms of imprisonment, nothing in his criminal history approaches the gravity of the crimes he committed between October and December 2013 for which he is now to be sentenced. His criminal history, at least, disentitles him to leniency. It also raises real questions as to his future dangerousness and whether the record should be treated as a circumstance of aggravation.”

511. In 1998, this Court allowed a Crown appeal and resentenced him for an offence of armed robbery with wounding: R v FQ (Court of Criminal Appeal, R S Hulme and Hidden JJ, Carruthers AJ, 17 June 1998, unreported). As Hamill J noted (ROS[212] at [423] above), psychiatric evidence at that time indicated that Farhad Qaumi was suffering from post-traumatic stress disorder.

512. Hamill J observed that a “worrying aspect of the 1998 report was that some of [Farhad Qaumi’s] personality traits” were “described as almost psychopathic in nature” (ROS[80]).

513. Hamill J (at ROS[82]) related this diagnosis of Farhad Qaumi to the commission of the present offences and his control of fellow gang members who committed grave crimes of violence on his behalf:

“I return to the observation in the earlier report suggesting Farhad’s personality traits were ‘almost psychopathic’. The pattern of conduct demonstrated in the cases before me suggests some form of psychopathic disorder as that term is generally understood. Apart from him readily resorting to extreme violence and the methods he used to control his fellow gang members, a particularly disturbing aspect of his conduct was the use of people like Witness D and Witness K to do his bidding. Witness D was a young Hazara man whose performance in the witness box showed that he was ‘slow’ to the point of having some form of intellectual disability. He was often confused and did not understand the questions. He was literal in his responses. He sometimes smiled at the men in the dock as if to seek their approval and reassurance. His description of his induction into the gang (when he was hugged as a brother) was chilling because it was clear he was being manipulated and used. There was a silence in the court room as he gave his evidence and the mood in the trial changed. His evidence was compelling. He was a soft target for Farhad. Witness K was Farhad’s young cousin who had a job and appeared to have his life in order away from the criminal milieu. In spite of this, Farhad used him to move the murder weapon after the Antoun shooting. This explained his brother’s (Witness J’s) anger in his recorded conversations with Farhad on 4 January 2014.”

514. Farhad Qaumi’s pattern of serious offending, for which the present aggregate sentence was passed, confirmed the accuracy of the 1998 assessment of a psychopathic disorder, with those features manifesting themselves at a time when Farhad Qaumi was living as a mature adult in the Australian community in 2013 and 2014.

515. The Crown has not appealed against the determinate aggregate sentence passed at first instance.

514. In exercising sentencing discretion for the purpose of s.6(3) Criminal Appeal Act 1912, I am satisfied that the same indicative sentences should be nominated for all offences except Count 18 which is to be disregarded.

515. The aggregate sentence and the non-parole period must reflect the gravity and number of Farhad Qaumi’s offences. A limited finding of special circumstances should be made for the reasons expressed by the sentencing Judge (see ROS[216] at [425] above).

516. In my view, the appropriate outcome on sentence is to impose an aggregate head sentence of imprisonment for 58 years with a non-parole period of 42 years. A period of 42 years’ imprisonment represents the minimum period which Farhad Qaumi should serve for these very serious crimes.

Mumtaz Qaumi

519. Mumtaz Qaumi was 29 years old at the time of the present offences.

520. With respect to Mumtaz Qaumi, it is necessary to put to one side the indicative sentences for Counts 9 and 18. As with Farhad Qaumi, the errors with respect to standard non-parole periods of Mumtaz Qaumi were limited to erroneous application of a standard non-parole period of four years instead of three years concerning Counts 21 and 22. This was an extremely limited error which concerned firearms offences which were the subject of very substantial notional concurrency.

521. The remaining question is whether a lesser aggregate sentence is warranted in all the circumstances of the case. The fact that two offences (Counts 9 and 18) are to be put to one side bears materially upon that question. The overall criminality for which Mumtaz Qaumi is to be sentenced is reduced to an extent as a result of his acquittal on those matters.

522. At the same time, his offences include the murder of Joseph Antoun and the manslaughter of Mahmoud Hamzy as well as conspiracy to murder and other grave offences of violence. Subjective factors were taken into account in favour of Mumtaz Qaumi and played a significant role in the discretionary determination that a sentence of life imprisonment should not be imposed in his case.

523. Mumtaz Qaumi has a criminal history which included serious offences of violence, but with no offences being committed by him between 2006 and 2013 when the present offences were committed. Hamill J stated (ROS[92]) that his criminal history disentitled him to leniency that would be afforded to a first offender, but did not constitute an aggravating feature or engage the principles discussed in Veen v The Queen (No. 2) [1988] 164 CLR 465; [1988] HCA 14.

524. The Crown has not appealed against the determinate aggregate sentence passed at first instance.

525. In exercising sentencing discretion for the purpose of s.6(3) Criminal Appeal Act 1912, I am satisfied that the same indicative sentences should be nominated for all offences except Counts 9 and 18 which are to be disregarded.

526. The aggregate sentence and the non-parole period must reflect the gravity and number of Mumtaz Qaumi’s offences. A limited finding of special circumstances should be made for the reasons expressed by the sentencing Judge (see ROS[202](2)).

527. I am satisfied that a lesser aggregate sentence is warranted in the case of Mumtaz Qaumi. An aggregate sentence of imprisonment for 46 years with a non-parole period of 33 years is appropriate in his case. A period of 33 years represents the minimum period which Mumtaz Qaumi should serve for his grave offences.

Jamil Qaumi

528. Jamil Qaumi has not succeeded on any aspect of his conviction appeal. His appeal against sentence had succeeded only upon the basis that erroneous standard non-parole periods were taken into account on Counts 21 and 22, being reliance upon a standard non-parole period of four years instead of three years.

529. In my view, this is an error of a low order which affects indicative sentences for two of the less serious firearms offences where a substantial degree of notional concurrency applied on sentence. The sentencing Judge made clear that indicative sentences for these firearms offences were to operate notionally as concurrent sentences with the offences where the firearms were used (see ROS[41] at [379] and ROS[140] at [410]).

530. Having considered all relevant matters, including the correct standard non-parole period, I am satisfied that the indicative sentences nominated by the sentencing Judge remain appropriate for each of the offences committed by Jamil Qaumi including Counts 21 and 22, which were subject to this essentially technical error.

531. Having considered all relevant matters, I am not persuaded that any lesser aggregate sentence is appropriate in the case of Jamil Qaumi.

Conclusion and Proposed Orders

532. In light of the findings and conclusions expressed in this judgment, the sentence appeal of Jamil Qaumi should be dismissed. The sentence appeals of Farhad Qaumi and Mumtaz Qaumi should be allowed with lesser aggregate sentences to be passed in each case.

533. With respect to Farhad Qaumi’s sentence appeal, I propose the following orders:

1. grant leave to appeal against sentence;

2. quash the aggregate sentence imposed on 16 June 2017;

3. in its place, sentence Farhad Qaumi to an aggregate sentence of imprisonment for 58 years, comprising a non-parole period of 42 years commencing on 9 January 2014 and expiring on 8 January 2056 with a balance of term of 16 years commencing on 9 January 2056 and expiring on 8 January 2072;

4. the earliest date upon which Farhad Qaumi will be eligible for release on parole is 9 January 2056.

534. With respect to Mumtaz Qaumi’s sentence appeal, I propose the following orders:

1. grant leave to appeal against sentence;

2. quash the aggregate sentence imposed on 16 June 2017;

3. in its place, sentence Mumtaz Qaumi to an aggregate sentence of imprisonment for 46 years, comprising a non-parole period of 33 years commencing on 9 December 2014 and expiring on 8 December 2047 with a balance of term of 13 years commencing on 9 December 2047 and expiring on 8 December 2060;

4. the earliest date upon which Mumtaz Qaumi will be eligible for release on parole is 9 December 2047.

535. With respect to Jamil Qaumi’s sentence appeal, I propose the following orders:

1. grant leave to appeal against sentence;

2. appeal dismissed.

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ANNEXURE “A”

(With respect to [5] of this judgment, the list identifying witnesses is confidential and will be made available to the parties only.)

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Decision last updated: 15 July 2020