Citation: R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774
Court: Supreme Court of New South Wales
Date: 16 June 2017
Judge(s): Hamill J
Background
Three brothers were sentenced following their convictions for a series of serious offences connected to their leadership of a criminal organisation known as Brothers for Life Blacktown (BFL Blacktown). The offending arose from a violent "war" between BFL Blacktown, led by the eldest brother, and a rival chapter based in Bankstown. Between late October and late November 2013, five shooting incidents occurred in and around people's homes and public places, leaving one person dead, several injured, and at least ten lives endangered.
The jury trial, which ran from April to November 2016, resulted in convictions for conspiracy to murder, manslaughter, causing grievous bodily harm, attempted murder, and related firearms and drug supply offences. A separate judge-alone trial, concluded in February 2017, addressed the murder of Joseph Antoun, described as a cold-blooded contract killing carried out by the two older brothers on 16 December 2013.
During the jury trial itself, further criminal conduct emerged: one brother pleaded guilty to three counts of contempt of court, including an act of physical violence in the dock, and another pleaded guilty to one count of contempt for refusing to answer questions during proceedings.
Legal Issues
- What sentences were appropriate for offences involving murder, manslaughter, conspiracy to murder, attempted murder, and related firearms and drug offences arising from organised criminal gang violence?
- Whether a life sentence without parole was warranted for the contract murder of Joseph Antoun, having regard to the statutory two-stage test and the offender's moral culpability.
- Whether traumatic childhood experiences (including exposure to violence in Afghanistan) and diagnosed psychiatric conditions constituted genuine mitigating factors capable of reducing moral culpability, including for offenders with very high objective criminality.
- Whether the onerous conditions of incarceration experienced by the offenders, including classification as extreme high risk inmates and segregation, were relevant mitigating considerations at sentencing, and to what extent.
- Whether the offenders were the authors of their own harsh custodial conditions, and whether taking those conditions into account amounted to impermissible double punishment.
- What sentences were appropriate for the contempt of court offences, including whether consecutive sentences were warranted.
Decision
Hamill J sentenced each offender to lengthy non-parole periods across the various offences, with the sentences reflecting the extreme seriousness of the organised, premeditated, and repeated nature of the violence. In considering the murder of Joseph Antoun, his Honour declined to impose a life sentence without parole, finding that although the objective criminality was exceptionally high, a lengthy determinate sentence could adequately protect the community and could itself amount to an effective life sentence given the offender's age. The judge noted that life imprisonment is not the only mechanism by which community protection interests can be satisfied.
On the question of mitigating factors, Hamill J accepted that the offenders' backgrounds, including dislocation, exposure to violence in Afghanistan, and diagnosed psychiatric conditions, genuinely reduced their moral culpability to some degree. This approach followed the High Court's decision in Bugmy v The Queen, which confirmed that background deprivation and trauma do not lose their mitigating force merely because an offender has committed serious crimes. However, his Honour made clear that the weight given to these factors was necessarily limited by the gravity and deliberateness of the offending.
Hamill J accepted that the conditions of incarceration, including classification as extreme high risk inmates, extensive segregation, and severely limited human contact, were genuinely onerous and went beyond ordinary custodial hardship. His Honour found the offenders were not entirely the authors of their own fate in terms of these conditions, and that it would not constitute double punishment to take those conditions into account when determining the length of sentence. However, the court expressed reluctance to make predictions about future conditions and acknowledged the courts' general deference to prison management decisions.
On the contempt matters, Hamill J found the examples before him were serious. One involved an act of physical violence against a co-accused in the dock in the presence of a judicial officer, calculated to intimidate someone who was running a defence of duress. The other involved refusal to name a co-offender out of fear of being labelled an informant. Consecutive sentences were imposed for the contempt offences, given that the conduct was distinct from and additional to the principal offending.
Orders Made
No orders were made in this decision.
Key Takeaways
- A life sentence without parole for murder is not the only means by which community protection interests can be met; a lengthy determinate sentence that may operate as an effective life sentence can satisfy that interest where the statutory two-stage test is not fully met.
- Under the principle confirmed in Bugmy v The Queen (2013) 249 CLR 471, evidence of a traumatic and dislocated childhood, including exposure to serious violence in a conflict zone, retains its mitigating weight at sentencing regardless of the gravity of the offending, though the weight assigned will reflect the circumstances of the individual case.
- Onerous conditions of pre-sentence and ongoing incarceration, including extreme security classifications and prolonged segregation, can constitute a relevant mitigating consideration going to sentence length, provided the offender is not solely responsible for those conditions and it does not amount to double punishment.
- Courts will be slow to make forward-looking findings about future prison conditions and will generally defer to corrective services management decisions, meaning any reduction in sentence on this basis is likely to be modest and fact-specific.
- Contempt of court committed in the face of the court, including physical violence against a co-accused in the dock or deliberate refusal to give evidence in order to obstruct a fair trial, is treated as a serious category of contempt warranting consecutive sentences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crime (High Risk Offenders) Act 2006 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)
Cases:
- Bugmy v The Queen (2013) 249 CLR 471; [2013] HCA 37
- Green v The Queen, Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Abbas & Ors v R [2013] NSWCCA 115
- Barton v R [2009] NSWCCA 164
- Cahill v R [2015] NSWCCA 53
- Clark v Commissioner for Corrective Services [2016] NSWCA 186
- Clark v State of New South Wales & Ors [2014] NSWSC 801
- DA v R [2014] NSWCCA 306
- Dean v R [2015] NSWCCA 307; [2016] HCATrans 278
- DPP (Vic) v Hunter [2013] VSC 440
- Fayad v R [2017] NSWCCA 81
- Ghamraoui v R [2009] NSWCCA 111
- Glare v R [2015] NSWCCA 194
- JM v R [2014] NSWCCA 297
- Kanaan and Ors v R [2006] NSWCCA 109
- Kearsley v R [2017] NSWCCA 28
- Kelleher v Commissioner, Department of Corrective Services [1999] NSWSC 86
- Kennedy v The Queen [2010] NSWCCA 260
- Attorney General's Application No 1 of 2002 [2002] NSWCCA 518