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District Court 1 June 2022

R v Qaumi

[2022] NSWDC 302

Assault & violence

Citation: R v Qaumi [2022] NSWDC 302
Court: District Court of New South Wales
Date: 1 June 2022
Judge: M L Williams SC DCJ

Background

The offender, aged 39 at the time of sentencing, pleaded guilty to one count of assault occasioning actual bodily harm under s 59 of the Crimes Act 1900. The offence occurred on 20 May 2020 inside the high-risk management unit at Goulburn Correctional Centre. At the time, the offender was already serving a total sentence of 58 years imprisonment (with a 42-year non-parole period) imposed following convictions relating to a criminal organisation known as Brothers For Life, Blacktown.

The offender and the victim were fellow inmates housed in adjoining cells. Prison staff had granted them association privileges, allowing supervised time together in designated areas. During one such session in a TV room, where both men were handcuffed, the offender produced a concealed weapon and stabbed the victim in the head and neck multiple times over approximately two minutes.

The victim sustained a 5 cm skin tear to the right forehead, a smaller forehead laceration, and a 10 cm laceration to the right side of the neck. The wounds were treated with Steri-Strips and required no further medical intervention. CCTV footage of the incident was tendered and played to the Court. The offender exercised his right to silence when spoken to by police, and the victim declined to provide a statement.

  • What sentence was appropriate for an assault occasioning actual bodily harm committed in custody by an inmate serving a very lengthy existing sentence?
  • What weight should be given to the late guilty plea under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999?
  • Whether the sentence should be cumulative on, or concurrent with, the existing sentence, having regard to s 56 of the Crimes (Sentencing Procedure) Act 1999 and the totality principle?
  • Whether special circumstances existed to vary the standard ratio between the non-parole period and the balance of sentence?

Decision

Williams SC DCJ assessed the objective seriousness of the offence as around mid-range for this type of assault. The Court identified several aggravating features: the offender had brought the weapon to the association meeting with clear premeditation and intention to use it; the victim was handcuffed and substantially unable to defend himself; the offender had a very lengthy prior criminal record; and no provocation by the victim was established. Counsel for the offender conceded that full-time custody was appropriate.

On the question of accumulation, the Court held that a modest degree of accumulation on the existing sentence was required. Section 56 of the Crimes (Sentencing Procedure) Act 1999 creates a presumption in favour of cumulative sentences for offences committed in custody, reflecting the need to deter inmates from assaulting fellow inmates and to protect inmate welfare. While the Crown acknowledged that the matter could ordinarily have been dealt with in the Local Court, the offender's lengthy existing sentence made that unavailable. The Court rejected the defence submission that the sentence should be wholly concurrent and served as a fixed term, finding that approach inconsistent with applicable sentencing principles.

The Court applied the totality principle and acknowledged that a crushing sentence should be avoided, citing R v Cattell [2019] NSWCCA 297 and Cahyadi v The Queen [2007] NSWCCA 1. The late guilty plea attracted only a 5% discount under s 25D(2)(c), given it was indicated only days before the trial date. A finding of special circumstances was made to limit further institutionalisation and to account for the practical consequences the sentence would have on the offender's eventual parole application for his existing term.

Orders Made

  • The offender was convicted of assault occasioning actual bodily harm.
  • A starting sentence of 20 months imprisonment was reduced by 5% for the guilty plea to a total term of 19 months imprisonment.
  • Special circumstances were found; a non-parole period of 12 months was imposed.
  • The sentence commences 8 October 2055, making the offender first eligible for release on this sentence on 7 October 2056.

Key Takeaways

  • Under s 56 of the Crimes (Sentencing Procedure) Act 1999, sentences for offences committed in custody are presumed to be cumulative on any existing sentence, reflecting the distinct public interest in deterrence within the prison environment and the protection of inmates.
  • A late guilty plea, entered only days before a trial date, attracted only a 5% utilitarian discount under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999, significantly less than the discount available for earlier pleas.
  • The totality principle operates to prevent a crushing sentence, but the District Court held it does not justify a wholly concurrent sentence where the nature of the offending independently warrants some accumulation.
  • Special circumstances can be found in the custodial context where limiting further institutionalisation and accounting for the downstream effect on parole eligibility for a pre-existing sentence are relevant considerations.
  • Premeditation, the use of a concealed weapon, and the victim's inability to defend himself (due to being handcuffed) were treated as factors elevating objective seriousness, even where the resulting physical injuries were relatively modest.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D(2)(c), 56, 56(3)

Cases
- Cahyadi v The Queen [2007] NSWCCA 1
- Qaumi, Farhad v R; Qaumi, Mumtaz v R; Qaumi, Jamil v R [2020] NSWCCA 163
- R v Cattell [2019] NSWCCA 297
- R v Farhad Qaumi, Mumtaz Qaumi & Jamil Qaumi (Sentence) [2017] NSWSC 774
- R v Jeremiah [2016] NSWCCA 241
- R v MAK; R v MSK [2006] NSWCCA 38