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Court of Criminal Appeal 15 July 2020

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

[2020] NSWCCA 163

Assault & violenceHomicideDrugsFirearms & weaponsPublic order & justice offences
CRIMINAL LAW CONVICTION APPEALS GANGLAND VIOLENCE GUN VIOLENCE BROTHERS FOR LIFE (BFL) WANTON LAWLESSNESS

Citation: Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163
Court: Court of Criminal Appeal, New South Wales
Date: 15 July 2020
Judges: Bathurst CJ; Hoeben CJ at CL; Johnson J

Background

Three brothers, Farhad, Mumtaz, and Jamil Qaumi, were convicted following a 20-week jury trial before Hamill J in 2016 on a range of serious offences arising from gangland violence in Western Sydney in late 2013. The Crown alleged that Farhad Qaumi led the Blacktown chapter of the Brothers for Life (BFL), a criminal organisation, and that he and his brothers orchestrated a series of shootings targeting members of a rival BFL chapter based in Bankstown.

The violence arose after Farhad Qaumi was told that Mohammed Hamzy, the Bankstown BFL leader, was planning to kill him. Following an attempted hit on Mohammed Hamzy that killed his cousin Mahmoud Hamzy instead, the applicants allegedly convened a park meeting and drew up a list of targets from the rival faction. A spate of shootings followed over November and December 2013, targeting individuals at their homes and in public places.

The Crown case depended heavily on "roll-over witnesses," that is, participants in the offending who gave evidence for the prosecution under pseudonyms. All three brothers were convicted on multiple counts including manslaughter, conspiracy to murder, attempted murder, directing a criminal group, drug supply, and firearms offences. They were sentenced in June 2017 and sought to appeal both their convictions and sentences.

  • Whether the jury verdicts on various counts were unreasonable or unsupported by the evidence, including where the Crown relied substantially on roll-over witnesses
  • Whether the evidence was sufficient to establish liability under joint criminal enterprise and extended joint criminal enterprise principles for each applicant
  • Whether the sentencing judge applied incorrect standard non-parole periods to some counts, and whether that error affected the aggregate sentences
  • Whether an unwarranted sentencing disparity arose between the applicants and a co-offender sentenced for the same murder
  • Whether the objective seriousness of certain offences was assessed incorrectly at sentencing
  • What the appropriate aggregate sentences were for Farhad and Mumtaz Qaumi following acquittals on some counts on appeal

Decision

Conviction appeals

The Court of Criminal Appeal dismissed the conviction appeals on the majority of counts, finding that verdicts of guilty were open to the jury on the evidence. Bathurst CJ conducted his own independent review of the evidence and agreed that the remaining verdicts were reasonably open.

However, the Court allowed the conviction appeal by Farhad Qaumi on Count 18 (firing at a dwelling house in the course of organised criminal activity) and the conviction appeals by Mumtaz Qaumi on Count 9 (causing grievous bodily harm to Masood Zakaria with intent) and Count 18. On Count 9, Hoeben CJ at CL found that even accepting the prosecution evidence at its highest, it was not sufficient to establish beyond reasonable doubt that Mumtaz Qaumi had taken positive steps to advance the plan to shoot Zakaria. Mere presence at the planning meeting, without more, was not enough to establish participation in the extended joint criminal enterprise. A verdict of acquittal was entered on those counts.

Sentence appeals

Johnson J found that the sentencing judge had applied incorrect standard non-parole periods to some counts, an error that was capable of affecting the aggregate sentence for each applicant. However, only Farhad and Mumtaz Qaumi required resentencing, because the acquittals on appeal necessitated a reconsideration of their overall sentences in any event.

The Court rejected disparity arguments based on differences between the indicative sentences for the brothers and those of a co-offender. Reasonable explanations existed for the differences, and no foundation was found for a legitimate grievance. The sentencing appeals of all three applicants were granted leave. Farhad and Mumtaz Qaumi received reduced aggregate sentences to reflect both the acquittals and the sentencing error. Jamil Qaumi's sentence appeal was dismissed, as no lesser aggregate sentence was warranted on the facts of his case.

Orders Made

Farhad Qaumi:
- Conviction on Count 18 quashed; verdict of acquittal entered
- Leave to appeal against sentence granted
- Aggregate sentence of 58 years' imprisonment imposed, with a non-parole period of 42 years commencing 9 January 2014 and expiring 8 January 2056; balance of term of 16 years expiring 8 January 2072
- Earliest parole eligibility: 9 January 2056

Mumtaz Qaumi:
- Convictions on Counts 9 and 18 quashed; verdicts of acquittal entered
- Leave to appeal against sentence granted
- Aggregate sentence of 46 years' imprisonment imposed, with a non-parole period of 33 years commencing 9 December 2014 and expiring 8 December 2047; balance of term of 13 years expiring 8 December 2060
- Earliest parole eligibility: 9 December 2047

Jamil Qaumi:
- Leave to appeal against sentence granted
- Sentence appeal dismissed

Key Takeaways

  • Participation in an extended joint criminal enterprise requires proof that a defendant was a party to the original agreement and took some positive step to further execution of that enterprise. Attendance at a planning meeting and holding a leadership position in a criminal group are not, without more, sufficient to establish that liability.
  • Where an appellate court is left with a reasonable doubt that could not have been resolved by the jury's advantage of seeing and hearing witnesses, and where the evidence lacks corroboration on a critical point, the court is bound to act and set aside the verdict.
  • A sentencing judge's use of incorrect standard non-parole periods constitutes a legal error capable of affecting an aggregate sentence, and this alone can ground resentencing even where other grounds of appeal are not made out.
  • Disparity in indicative sentences between co-offenders does not automatically ground a legitimate grievance. The Court of Criminal Appeal will examine whether reasonable explanations exist for the differences before concluding that any unwarranted disparity arises.
  • In dismissing the bulk of the conviction appeals, the Court applied the principles from M v The Queen (1994) 181 CLR 487, confirming that appellate courts must give full weight to the jury's role as the primary fact-finder and its advantage in assessing witness credibility before substituting their own doubt for that of the jury.

Legislation and Cases Referenced

Legislation:
- 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:
- M v The Queen (1994) 181 CLR 487
- McAuliffe v The Queen (1995) 183 CLR 108
- DL v The Queen (2018) 265 CLR 215
- Muldrock v The Queen (2011) 244 CLR 120
- Kentwell v The Queen (2014) 252 CLR 601
- Green v The Queen (2011) 244 CLR 462
- Lowe v The Queen (1984) 154 CLR 606
- House v The King (1936) 55 CLR 499
- Libke v The Queen (2007) 230 CLR 559
- Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R (2011) 209 A Crim R 424
- Dickson v R (2017) 94