Solicitors:
Solicitor for the NSW DPP (Crown)
Oxford Lawyers (Offender)
File Number(s): 2014/90422; 2014/315510
Publication restriction: No publication until the conclusion of the trial in R v Qaumi & Ors.
[2]
Judgment
On 3 March 2016 the offender pleaded guilty to two offences namely:
1. Accessory before the fact of the murder of Mahmoud Hamzy on 29 October 2013.
2. Accessory before the fact of the offence of discharging a firearm with intent to cause grievous bodily harm to Abdul Abu-Mahmoud on 7 November 2013.
The first count is charged under ss 18 and 346 of the Crimes Act 1900 (NSW) and carries a maximum penalty of life imprisonment. The second count is charged under ss 33A(1)(a) and 346 of the same Act and carries a maximum penalty of 25 years imprisonment. In each case, the maximum penalty is created by the section creating the substantive offence (ss 18 and 33A respectively). Section 346 of the Crimes Act provides:
"Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not."
The offender also asks that an offence of participating in a criminal group (s 93T(1) of the Crimes Act) be taken into account in sentencing the offender for the first count. I have done so in accordance with well-established authority.
There is some small controversy over whether the standard non-parole periods that apply to the principal offences (20 years and nine years respectively) apply to offenders charged as accessories before the fact. There is some tension in the authorities. The learned Crown Prosecutor conceded that the standard non-parole periods do not apply. Whether that concession is legally correct is not a matter of great moment in the circumstances of the present case. The standard non-parole periods demonstrate the seriousness with which the legislature treats the principal offences. In sentencing an accessory before the fact, it provides some guidance (a "yardstick") in assessing the objective seriousness of the offending. However, there are many reasons in the present case why the standard non-parole period would have little relevance even if, technically, it did apply. These include the plea of guilty, the offer of assistance and other matters relevant to the objective seriousness of the offence and the personal circumstances of the offender. In coming to what I consider to be a just and appropriate sentence, I take into account the fact that there are standard non-parole periods for the principal offences in that limited way.
[3]
Discounts for plea of guilty and assistance
Until the plea of guilty was entered, the offender was one of nine, then eight, and finally six, accused on trial for a large number of offences arising from their membership of, or association with, a group known as the Blacktown Chapter of the Brothers for Life (BFL Blacktown): see R v Qaumi & Ors (No 3) (Severance and Separate trials) [2016] NSWSC 15.
The case was subject to a lengthy pre-trial hearing, canvassing a number of issues, in this Court. This commenced with a directions hearing on 27 July 2015. On that date, the offender was arraigned and pleaded not guilty. A series of pre-trial applications commenced on 2 November 2015. This included the "Basha" interrogation of a number of informant witnesses: R v Qaumi (No 2) [2015] NSWSC 1715. The offender did not participate actively in the pre-trial hearings. The offender's counsel (not the same barrister who appears on sentence) did not apply for the witnesses to give evidence on the Basha inquiry and did not ask any questions of the witnesses. Nor did the offender seek separate trials or severance or make submissions on the other pre-trial issues. The offender sought variations of her bail from time to time but the Crown was always put on notice of those applications and each was dealt with by consent and expeditiously. She also made an application under s 45 of the Crime Commission Act 2012 (NSW) but her part in that application took very little of the Court's time. These matters are relevant to the utilitarian value of the offender's plea of guilty and the degree to which or the manner in which she conducted the case facilitated the course of justice: see ss 22-22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") and the guideline judgment on pleas of guilty published in the year 2000.
On the other hand, these are extremely belated pleas of guilty. After she was committed for trial, the offender applied to have the order refusing to allow cross-examination at the committal hearing, and the committal order itself, quashed: C v DPP (NSW) [2015] NSWSC 747. [1] The pleas of guilty were entered after the 36th day of the pre-trial hearing. Further, the trial proper was scheduled to commence on 29 February 2016. The plea came after that date. The trial date was postponed until 14 March 2016. The plea came just eleven days before the revised trial date and, along with a belated application for a trial by judge alone by the remaining accused, caused the trial date to be postponed again, this time until 4 April 2016.
However, to the offender's credit and with the diligence of her legal representatives, the sentencing hearing was able to be conducted with a minimum delay. In spite of the amount of work involved, the hard and prompt work of her lawyers has enabled me to impose sentence a little over one month after the plea of guilty was entered.
The utilitarian value of the plea can only be regarded as minimal. The extent to which it has reduced the length of trial is difficult to assess but I operate on an assumption that it has saved some court time. I have reduced the sentence by around 5% on account of the plea of guilty. I am unable to accept the submission made on her behalf that the plea should result in a reduction in sentence of 10-15%. However, the manner in which she conducted the trial also entitles the offender to a small reduction from the sentence pursuant to s 22A of the Sentencing Act. In total, the reduction for these matters (ss 22 and 22A) will be 7½%.
Another "discount" to which the offender is entitled arises from the assistance that she has, and will, provide to police and the prosecution. Section 23 of the Sentencing Act provides:
"23 Power to reduce penalties for assistance provided to law enforcement authorities
(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:
(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,
(d) the nature and extent of the offender's assistance or promised assistance,
(e) the timeliness of the assistance or undertaking to assist,
(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,
(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,
(h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist,
(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,
(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:
(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and
(b) state the penalty that it would otherwise have imposed, and
(c) where the lesser penalty is being imposed for both reasons-state the amount by which the penalty has been reduced for each reason.
(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence."
I have taken into account the matters set out in s 23(4) and, adopting the paragraph numbering of that sub-section, record the following findings:
1. Taking into account the evaluation made by Detective Inspector Brown and Detective Superintendent Willing, the assistance is useful and significant.
2. The evidence to be provided is, as far as I am able to assess it in advance of cross-examination by counsel for the accused in the trial, generally truthful, reliable and complete. However, my assessment is that the offender attempted to minimise her role and this will diminish her credibility once she is exposed to cross-examination.
3. The nature and extent of the offender's promised assistance is substantial.
4. The offer of assistance, for the most part, is not timely. Like the plea of guilty, it was provided very late in the course of the proceedings. However, one aspect of the assistance (disclosure of information alleging threats to police officers) was made promptly.
5. The offender has not gained any other benefit by reason of the assistance or undertaking to assist.
6. It is expected that the offender will be in strict protective custody for most, if not all, of her sentence. The evidence shows that she will have less opportunity for human interaction with other inmates, less opportunity for visits by friends and relatives and less access to courses available to prisoners in the "main" parts of the gaol system. Of particular significance is the fact that her ability to interact with other women is likely to be extremely limited.
7. On the basis of the evidence and what is known of, and alleged against, those against whom she is to give evidence, the offender and her family is at risk of injury or reprisal as a result of her assistance.
8. The assistance relates both to offences for which she is to be sentenced but also offences with which she is not charged. This includes a murder charge against two of the co-offenders which is best described as a cold blooded, contract killing.
Like the pleas of guilty, the offer of assistance came very late. By the time of the offer, all of the co-offenders had been charged on the basis, amongst other things, of the evidence provided by other informant witnesses. They were all in custody by that time. In relation to the statements that relate to the present back-to-back trials, I am unable to see how there is any basis upon which the offender is entitled to anything more than a relatively small discount for "past assistance" or, in the terms of s 23 of the Sentencing Act, the extent to which she "has assisted" law enforcement authorities. However, one of the statements related to threats against two police officers. That statement contains details such as the residence of one of the officers. This statement was both timely and important, in terms of past assistance. The offender provided six statements between 10 to 29 February at a time where there was some danger in doing so. I propose to reduce her sentence by 12½% for past assistance. If some consider that reduction to be generous, it probably is. However, there is a policy reason to provide the offender with a significant reduction for making the statements. A failure to do so would discourage people in her position from cooperating with law enforcement agencies.
By contrast, the offender's undertaking to assist the prosecution - her "future assistance" - is very valuable. Her evidence is likely to be important and add strength to the prosecution case. A cynical observer might think that the offender has minimised her role. Indeed, I believe that she has. Further, a great deal of the evidence that the offender will give is already in the possession of the prosecution. It is also true that there are inconsistencies in the detail of her account and those provided by other informant witnesses. However, her evidence will provide important, and direct, evidence against men who (according to the police and prosecution) are the true leaders of a period of bloody lawlessness perpetrated by the BFL Blacktown.
In my estimation, her future assistance entitles the offender to a reduction in her sentence of 30%.
Accordingly, the total discount for the plea of guilty (5%), facilitating the course of justice (2½%), her past assistance (12½%) and future assistance (30%) will be 50%.
I am unable to accept the offender's submission that she should receive a total discount of, or approaching, 60%. In rejecting that submission I have considered (and accept) Mr Dhanji's SC submission that, because of the "ceiling" created by s 23(3) of the Sentencing Act, there is a "diminishing return" in cases where an offender provides extensive assistance. As Mr Dhanji SC put it, it is not "a linear process". Thus, there will be cases where an offender attracts no discount for a guilty plea, and yet will be entitled to a discount for assistance of 50-60%. The best explanation of this practical application of relevant principles, and the interplay between mathematical reductions in sentence for these various factors and the principle of proportionality enshrined in s 23(3), may be found in the judgment of Simpson J in R v Lenati [2008] NSWCCA 67 at [35]-[39].
There are two other matters that I should mention in relation to the reduction of the offender's sentence for her plea and assistance. The first is that, while I have taken into account the extremely onerous conditions of her incarceration in assessing the appropriate discount in accordance with s 23(2)(g), I will also take the matter into account when I consider the question of "special circumstances" under s 44 of the Sentencing Act. I do not consider this to constitute what is sometimes, inelegantly, described as "double counting". It is a matter that is relevant both to the total sentence, but also whether there should be some reduction in the non-parole period. In assessing the total discount to be applied to the individual total sentences, I bear in mind that I also intend to reduce the length of the non-parole period.
The second matter is that, having determined that the offender is entitled to a combined discount of 50%, I have taken a step back at the end of the process to ensure that I have complied with s 23(3) of the Sentencing Act. That is, I am concerned to ensure that the discount will not result in a sentence that is unreasonably disproportionate to the gravity of the offence. I emphasise the word "unreasonably". I am satisfied that it does not. The sentence to be imposed is certainly disproportionate to the offender's criminality, but it is not unreasonably so.
[4]
THE FACTS OF THE OFFENCES AND AN ASSESSMENT OF THE OFFENDER'S CRIMINALITY
As is often the case, there is an element of artifice in assessing the facts of the offences and the role of the offender. In the course of the pre-trial hearing, I heard a great deal of evidence concerning the offender's criminal behaviour. I am required to, and have, put that evidence out of mind and will sentence the offender on the basis of the facts that are agreed between the parties. With one exception - the degree of duress - there is no dispute as to the facts. The facts are set out in a document styled "Agreed Facts". It includes a good deal of background information concerning the Brothers for Life (BFL) and the circumstances in which the offender came to be involved with that organisation.
The BFL was formed by Bassam Hamzy (a notorious criminal and prison inmate) with his cousins Ghassan Hamzy and Mohammed 'Hamoudie' Hamzy (also known as "Little Crazy" and "LC"). The offender met Bassam Hamzy around 15 years ago. According to the agreed facts, she was "dating him while he was in custody". (The precise nature of the "dates" was not disclosed in the evidence). The offender's evidence was that she dated him before he went into custody and that she did not know at that time the nature of the offences with which he was to be charged. These included murder. She broke up with Bassam Hamzy (or "Bass" as she called him in the course of her evidence) and they were not in contact for many years.
In early 2013, the offender was employed by a firm of lawyers engaged by Bassam Hamzy and, in that role, she used to visit him in prison. According to the agreed facts, she used to perform tasks for Bassam Hamzy, one of which resulted in her meeting Mohammed 'Hamoudie' Hamzy and Farhad Qaumi.
However, the offender's evidence suggested a somewhat different series of connections. As I understood it, she became involved with Farhad Qaumi when he called her work telephone (provided by a solicitor to whom I will refer as "MC" [2] ) seeking advice in relation to a possible action against the police for false imprisonment or malicious prosecution.
The offender's evidence concerning her employment with MC had a number of very peculiar features. For one thing, it seemed that MC rang and offered her a job with his law firm even though she had no legal training and had not applied for a position. She said that this was because Bassam Hamzy recommended her, in circumstances where (according to the offender) she had not seen or heard from him for a number of years. She then worked, completely unpaid, for a period of three to six months. MC had no office (although it seems he borrowed one "if you can call it that" occasionally) and the offender was provided with a telephone and given instructions as to what to do from time to time. Her work days and hours were sporadic. She attended gaol visits, including to Mr Hamzy. It was the context of this rather odd legal job that she received the call on her work 'phone from Farhad Qaumi. As I followed her evidence, this was purely coincidental in terms of the connection, as it existed or developed, between Farhad Qaumi and two other people that she had known for many years - Bassam and Mohammed Hamzy.
The offender was involved in passing messages between the Hamzys and Farhad Qaumi. Why this was necessary was difficult to discern. In any event, the offender undertook the task even though she must have known that she was passing messages between men involved in serious criminal activity. Farhad wanted the approval of the Hamzys to set up a chapter of the BFL. Mohammed Hamzy insisted that he restrict his activities to the area between Granville and Blacktown. The offender knew that the activities involved drug dealing. There was tension between the groups due to the failure of Mohammed Hamzy to deliver on a promise to provide guns when Farhad Qaumi set up the BFL Blacktown. The offender said that she thought that Farhad Qaumi needed guns "to scare people".
I formed the view that the offender was minimising the extent of her knowledge of the activities of the people with whom she was mixing. I found parts of the offender's evidence difficult to accept. However, it was mostly in accordance with the agreed facts and received support in one important respect from her mother and, in others, from the psychiatric and psychological evidence called on her behalf.
By 2013, Farhad Qaumi was the leader of the Parramatta Chapter of the BFL(later to become the BFL Blacktown). Over time, a "turf war" developed between the BFL Blacktown and the BFL Bankstown (run by the Hamzys).This culminated in a number of shooting offences, including a murder offence, said to have been committed at the direction of Farhad Qaumi. At times, members of the BFL Blacktown were beaten and threatened by, or on the orders of, Farhad Qaumi.
[5]
Count 1 - The Murder of Mahmoud Hamzy
On 28 October 2013, the offender spoke privately to Farhad Qaumi and told him that she had heard that Mohammed "Hamoudie" Hamzy was planning to"get" Farhad. She had heard this information from her ex-husband. Farhadsaid, "I was going to get him anyway but this has given me the excuse". At Farhad's request, in the course of meetings over the next few hours, the offender repeated what she had heard to other members of the BFL Blacktown. She also told Farhad what she knew of Mohammed Hamzy's bail conditions, namely that he was required to be home before midnight. Themembers shared their knowledge of the appearance and whereabouts of Mohammed Hamzy and a plan was hatched to shoot him at his home. Theoffender knew where the target lived and was instructed by Farhad Qaumi to drive the shooters to his house. He said "You're going to fucken drive cause you're the one that told me [about Hamzy's plan to kill Farhad]". He also said "this will make sure you don't tell anyone." In the course of meetings at othervenues, the plan was developed further. Those offenders who were directed to carry out the killing were instructed not to take their telephones and an attempt was made to set up a false alibi by attending a hotel where a security officer knew them.
The offender drove the three shooters to the victim's home at Revesby Heights. At around midnight, the offender arrived outside the premises along with Jamil Qaumi, Mohammed Zarshoy and a man now known as witness L. They waited to ensure that Mohammed Hamzy would be home. Jamil Qaumi "directed" [3] the offender to "stay here, keep the car running, when you hear the shots drive up to us". The three men, armed with firearms and wearing balaclavas and gloves, entered the premises. They ran into the garage and opened fire. Mohammed Hamzy and another man escaped but Mahmoud Hamzy (who looks similar to Mohammed Hamzy) was killed and Omar Ajaj suffered gunshot wounds.
It is important to remember that the offender is not charged with any offence relating to the wounding of Omar Ajaj. There is no evidence that she knew that he would be present and no intention that anybody, apart from Mohammed Hamzy, would be shot. Jamil Qaumi then shot Mahmoud Hamzy in the head at close range. The three shooters then ran from the premises and got into the car, which was waiting outside with its engine running.
The events that followed do not form part of the objective facts of the offence to which the offender pleaded guilty in count 1. In an assessment of the criminality of this particular count, they are to be disregarded. However, they form part of the overall criminality and are encompassed by her participation in the criminal group. They also provide insight into the offender's state of knowledge of the extreme nature of the group's activities when she became involved in the shooting at the Chokolatta Cafe.
The offender drove the shooters from the scene. As they made their escape, both witness L and Jamil Qaumi boasted that they had shot "LC". Jamil Qaumi said, "I killed him, I killed LC, did you see all the blood coming out of his head, he is dead for sure, I think the other one is dead too." The group separated for a time and regrouped later. The offender took the weapons and returned them to Jamil Qaumi at a later meeting. The car used to execute the killing, which was a hire car, was burned. Later, the group (including the offender) reported back to Farhad Qaumi. Jamil Qaumi told his brother "We got him, we got LC" and said that he was sure that he was dead because "I shot him in the head." The offender drove Farhad Qaumi away from the meeting. At one stage, police stopped the vehicle and spoke to the offender and Farhad Qaumi. The offender and Farhad Qaumi told the police that they were going to McDonalds but were lost. Nothing was located in a search of the vehicle, the guns having been taken from the scene by other members of the group.
Ballistics examination established that three weapons were used. These were a 0.38 Smith & Wesson "special" revolver Model 36-1, a 0.38 Smith & Wesson Model 10 and a 0.45 ACP.
Omar Ajaj and Mahmoud Hamzy were taken to hospital. Ajaj was treated for gunshot wounds to his knee, thigh and abdomen. Mahmoud Hamzy died of gunshot wounds. The post-mortem examination showed three wounds to the head as well as wounds to the scrotum, base of the spine and left leg.
The shooting at Revesby Heights was a callous, carefully planned and well executed crime. It represents criminality of the highest order. One man was killed and another suffered serious injuries. The two victims just happened to be in the wrong place at the wrong time. The offence involved the use of three dangerous weapons. The planning included the setting up of a false alibi, the use of gloves and balaclavas and the use of a hired getaway car that was later burned. All of this was designed to avoid detection.
In assessing the criminality of the offender in resect of count 1, I must disregard the shooting of Omar Ajaj, her actions in helping the offenders to flee the scene, her involvement in disposing of the weapons and her assistance to Farhad Qaumi in avoiding detection.
The offender's role was an important one. Whatever her motivation was, it was the offender who provided Farhad Qaumi with the final excuse to put into place his plan to murder his rival. It was the offender who drove the shooters to the scene and waited while they executed the wrong man. While her action in helping them to escape cannot form part of the role she played as an accessory before the fact, it cannot be ignored as it demonstrates the extent to which she participated in the criminal group, conduct that is caught by the offence on the Form 1. Even allowing for the fact that she was following directions, her role was an active one. She participated knowing that the intention of the BFL Blacktown was to take human life in what can only be described as an execution, albeit that the wrong Hamzy was killed.
However, the offender's role arose by chance when she happened upon Farhad Qaumi when she was driving, with her mother, to a barbecue on the afternoon that the shooting took place. This chance meeting occurred near a gym in Parramatta that was on the offender's route to the barbecue. It was not a place that Farhad Qaumi was generally known to frequent. Farhad Qaumi told her to take her mother to the barbeque and return. She did so and from that point events developed rapidly. There was little time for calm consideration of what she should do. Later, her mother thought that the offender was acting differently - "she wasn't herself, she was upset". [4] It was not until almost the last moment that Farhad Qaumi instructed her that she was to be the driver.
Whether her objective criminality is diminished because she was acting under duress is a matter that will be considered separately.
[6]
Count 2 - The Chokolatta Cafe Shooting
A few days after the Hamzy killing, Farhad Qaumi left for Thailand. Before departing he told the offender that he wanted to "get" Michael Odisho, Masood Zakaria, Mahmoud Sanoussi, Abdul Abu-Mahmoud (known as "Abs") and Mohammed Hamzy's brothers. The offender considered most of these men to be her friends. There were two shootings, directed at Michael Odisho and Masood Zakaria, the details of which are known to me because of evidence given in the pre-trial hearing. Those shootings form no part of the case presented against the offender. There is no evidence on sentence that she was aware of those incidents or played any role in them.
However, on 6 November 2013 police observed the offender meeting with Jamil Qaumi. According to the offender (and the agreed facts on sentence), Jamil asked her whether she had information about the "lebos" and what they were saying about the Hamzy killing. Meetings of other members of the BFL Blacktown ensued. Later that night, the offender met with some of these people, including Mumtaz Qaumi. Mumtaz said that he had heard that "Abs" may be obtaining, or able to obtain, the home addresses of Farhad and Mumtaz Qaumi. The offender told Mumtaz that Abs had a friend in real estate and he could easily obtain such information. Mumtaz said that "they were going to get Abs". The offender then attended the location of the intended shooting (the Chokolatta Cafe) with the group that intended to carry out the crime. She identified the proposed target - Abdul Abu-Mahmoud (the aforementioned "Abs") - and his car. The agreed facts assert that "one of the Qaumis said that the target will be shot tonight". The offender provided information about the closing time of the cafe.
I formed the strong impression that, in giving her evidence, the offender attempted to minimise the importance of her role. She claimed that the principals already knew the information that she provided. It is difficult to reconcile this with the agreed facts. For example, the offender gave the following evidence: [5]
"Q. You were involved in driving to the Chokolatta cafe?
A. Yes.
Q. You pointed out the person you know as Abs?
A. No. Jamil pointed him out and said, 'That's Abs,' and I said, 'Yes.' 'Is that
Abs?' and I said, 'Yes.' I agreed.
Q. I am sorry, you agreed. In doing so was that well, let me ask you this: Was it information that you believed, well, that they didn't already have?
A. No, they all knew Abs. They used to have meetings at Abs's cafe and the Bankstown unit that Farhad originally wanted as the drug unit was right across the road from the cafe and Witness I's brother lived in that unit at some stage so Witness I knew, Jamil knew, I didn't know what he saw, so I don't know if he knew. That was the first night I had met him.
Q. What about identifying the car?
A. They knew what he drove too.
Q. Why were you asked in relation to that?
A. I don't know if Jamil knew."
The agreed facts simply asserted:
"About 8.24pm, Jamil Qaumi, Mumtaz Qaumi, Witness I, Witness D and the offender drove to West Terrace, Bankstown to view the location for the intended shooting. The offender drove past the Chokolatta cafe where the 'target', Abdul Abu-Mahmoud was sitting. The offender pointed him out and his vehicle (parked in the driveway) to Witness I and Witness D."
At around 11pm that night three members of the BFL Blacktown attended the cafe and conducted a final reconnaissance. Mr Abu-Mahmoud and two others were seated in a blue BMW sedan. The perpetrators parked their car in a position where the BMW could not back out of its parking spot. Two of the group then approached the car and discharged their firearms (a 0.38 calibre revolver and a pump action shot gun). Mr Abu-Mahmoud suffered shotgun wounds to the right shoulder, back, neck, scalp and right hand. One of other men escaped serious injury while the third man received shotgun wounds. (The offender is not to be sentenced for the shooting of, or injuries sustained by, the other men. She is not charged with any offence relating to them.)
The motive for this shooting is rather bizarre and its execution lacked rigour. Nevertheless, it was pre-meditated, involved some planning and was carried out in a public place with disregard to the safety of the public. Two dangerous weapons were deployed. The offender identified the victim and his car to the perpetrators and provided information (the closing time of the cafe)that facilitated the commission of the crime. I do not accept that she only told the group things that they already knew. There is no reason that they wouldhave involved her at all if they were already in possession of all of the information that they needed to execute their somewhat idiotic plan. I am unable to accept the submission that they involved her merely to ensure that she remained engaged with the group and thus would not break the silence surrounding the events that had transpired over the previous week or so.
My assessment is that her role was quite important in the planning stages of the crime. The case represents a relatively serious example of an offence ofaccessory before the fact of discharging a firearm with intent.
[7]
The Form 1 Offence: Participating in a Criminal Group
In sentencing for count 1, I take into account the offender's commission of a third offence, namely participating in a criminal group. The Form 1 document indicates that the offence took place over a six month period from 1 July 2013 to 8 January 2014. However, the agreed facts suggest that her active participation occurred in late October to mid November 2013.
As I have said, this charge is capable of capturing aspects of the offender's role in the Hamzy killing that occurred after the event. However, once again, there is an element of artifice in this exercise because the offender is not to be sentenced for being an accessory after the fact to that murder, an offence that carries a greater maximum penalty (to the offence on the Form 1).
The Form 1 offence also encompasses a third shooting incident where a man called Mr Elkadi was shot. The offender's role was to provide details of the residence of the mother of Mohammed Hamzy knowing that Farhad Qaumi was determined to commit a shooting to avenge violence that had been perpetrated on members of the BFL Blacktown. She also drove the shooter to and away from the scene. The victim suffered a bullet wound to the foot or ankle.
Taking this offence into account gives rise to some complexity and requires a nuanced approach to the important principle that the offender must not be punished for an offence with which she is not charged. The facts before me suggest that she was, at least, an accessory to this shooting. But she is neither charged with that offence, and nor does that offence appear on the Form 1. Rather, it is simply part of what she admits was her participation in the criminal group known as the BFL Blacktown.
The offence also captures her role as a conduit between the Hamzys and Farhad Qaumi in their agreement as to the division of territory in which they might conduct their criminal activities.
It is a serious example of an offence under s 93T of the Crimes Act but it is only to be taken into account in a particular way.
In sentencing for the first count, I will give greater weight to personal deterrence and to retribution. While I accept that the offender has distanced herself from the group by becoming a Crown witness, I do not accept the submission that this results in a "limited need for specific deterrence". On the other hand, the length of the sentence that must be imposed for the two counts on the indictment will have a salutary affect on the offender. Inevitably, the Form 1 offence means that the sentence for count 1 will be greater and the overall sentence will be longer. However, it will be nowhere near as long as it would have been if the s 93T offence had been separately charged, let alone if the offender was charged as an accessory to the Elkadi shooting offence or if it that offence that was specified in the Form 1.
[8]
Duress
An important part of the assessment of the offender's objective criminality concerns a consideration of the extent to which she was acting under duress. Mr Dhanji SC submits that duress is a significant factor and diminishes her criminality by a substantial degree. The Crown takes a more circumspect approach.
Duress is what might be described as a relative factor. In some cases it can provide a complete defence to a crime. In others, where the nature and extent of the duress does not completely excuse the crime at law, duress is an important mitigating feature. This has always been the case at common law and s 21A(3)(d) of the Sentencing Act makes specific provision that duress if a mitigating feature. However, the extent to which duress mitigates the objective criminality varies from case to case.
I accept that the offender was out of her depth and fearful and I accept that she was intimidated by Farhad Qaumi. I also accept that she was acting under some degree of duress. The extent to which that is so, is difficult to assess. The evidence of duress largely comes from the offender and the independent evidence cuts both ways.
The offender gave evidence that Farhad Qaumi often threatened her. These threats were both explicit threats against her life and that of her family (specifically her mother) but also implied threats whereby Farhad would remind her that he knew where her mother lived or, at times when she was avoiding contact with him, turn up unannounced outside of her mother's house. The offender gave evidence that on four occasions, he forced her to have sex with him against her will.
She gave evidence that "[h]e told me that if I told anyone, he would kill me. Um, if I went to the police, he'd kill me and my family". [6] She also gave evidence of an occasion when he arrived at her house:
"He was going off at me, why am I ‑ why did I disappear. Why aren't I answering his calls. Threatening me again. He said, 'Look how easy it is for me to come to your house'." [7]
In relation to whether she received any direct threat that caused her to participate in the Hamzy shooting, the evidence is inconsistent. In evidence, the offender gave the following evidence:
"He said that I have to drive, urn, that that way I can't roll on them because if I do, I'll get charged for murder too and that it would be Witness L, the other guy, and Jamil and me, and that I would have to drive and that if I didn't drive, that he would feed me to the sharks.
Q. What did you say?
A. I said 'No, I'm not driving.'
Q. Where was your mother at this time?
A. In the car. I said I had to go, my mum's sick, I have to take care of her.
Q. What was said in relation to that?
A. He said that my mum won't have a daughter, he's going to feed me to the
sharks." [8]
By contrast, in paragraph 28 of her statement of 10 February 2016, specifically relating to the Hamzy murder, she said:
"28. Farhad said make sure you fucken don't tell anyone and was very angry. He then asked me for the name of the street where LC lived. I told Farhad that I didn't know the street name. Around this time, Musti told Farhad that he didn't want to drive and I could see that he looked really scared. Musti said, 'She knows where he lives, why don't you get her to drive (referring to me)'. I said, 'I can't drive, I've got my mum with me and I have to go'. Farhad and Mumtaz walked off talking privately for a while and then Farhad came back and said to me, 'You're going to fucken drive cause you're the one that told me.' He then said something to the effect of, 'This will make sure you don't tell anyone.'
29. I was petrified as Farhad was so angry and he had threatened my mother and me earlier that night. Farhad has also threatened me on previous occasions that if I told anyone about anything that he does he would, 'Kill me or feed me to the sharks'. I had also seen Farhad beat members of his own group and he had bragged to me about pulling guns on his own gang members. I was also aware that he had shot Mustafa Shanaza. After his arrest, Farhad's own wife, Mariah Hussein, told me that Farhad had previously pulled guns on members of his own family. Mariah also told me that Farhad had once beaten his brother Mumtaz to a pulp for some reason. He had also pulled a gun on his own father."
When I raised this inconsistency in the course of argument, Mr Dhanji SC submitted that there was no real inconsistency because "she is stating this is a repeated refrain uttered by Farhad Qaumi". It was put that I should not focus on the small details and inconsistencies (of which there are a number). Rather, I was exhorted to approach the matter in a more global way:
"Ultimately, what your Honour does in this exercise is determine, irrespective of exactly what was said and exactly when, whether duress was an operative force. In that sense, in my submission, your Honour needs to take a step back and look at the big picture because when you look at the big picture, in the absence of duress, there is an absence of any rational explanation …" [9]
It was submitted that the offender's evidence of duress receives some support from her mother, Detective Inspector Browne and by the expert opinion of Dr Furst and Mr Borenstein.
Another part of the evidence that is difficult to reconcile with the proposition that the offender was acting under duress comes in the form of text messages and letters written by the offender to the Qaumi brothers in late 2013 and early 2014. [10] On 20 December 2013 the offender sent a message to Farhad saying "I missed ya. Please tell [Mum]taz I say hi too". On 1 January 2014, she texted "Inshallah this year is a better year for all of us. The only good thing about last year was meeting you and your brothers because now I have three new brothers. Sweet dreams". The letters, on their face, are worse. The first letter (undated) commences with the words "Babyyyyyyyyyyyyyyyyy I missssssssssssssss youuuuuuuuuuuuuuuuuuu L like crazy" and concludes with "Sweet dreams Gorgeous XOXO wallah I love you so much Farhad you have no idea how much. Inshallah you get bail and are out to be with your kids and the new baby too. And of course me J. Love Always and Forever."
Subsequent letters were in similar, sickly sweet, terms. For example, to Farhad she wrote:
"Babe I fukn miss you so much."
"Sweet dreams gorgeous."
"Love always and forever."
She also wrote to Jamil and Mumtaz Qaumi at around the same time. Those letters were also in highly affectionate terms. At first blush, this is difficult to reconcile with the offender's case that she was acting under duress.
Against that, the letters demonstrated that the offender continued to do Farhad's bidding. She said that she was communicating with solicitors to attempt to arrange bail, visiting other members of the BFL Blacktown and that she talked to Farhad's wife "all the time and I always check on her and the kids and ask if they need anything." She offered to bring Jamil Qaumi "more socks and undies". She put her mobile telephone number on Jamil's gaol account so that he could call her.
The letters also contain deliberate falsehoods. For example, there was a repeated refrain that the Qaumi brothers were innocent and she claimed (falsely) that she had a "broken bone in her leg". That last piece of misinformation is significant because it reflects a telephone call that occurred on 20 December 2013 that was covertly recorded by investigating police. [11] In that call, recorded before Farhad went into custody, she told Farhad "I've fractured two bones in my leg" and that she was "on crutches … and in a '[moon] boot'". The offender says that she perpetrated this lie in an attempt to avoid contact with Farhad Qaumi. This is supported by his response: "It doesn't explain why you didn't answer my messages".
Both Dr Furst (a forensic psychiatrist) and Mr Borenstein (a clinical psychologist) gave evidence that supported the offender's evidence. Each considered that she exhibited symptoms of chronic post-traumatic stress disorder (PTSD). Each made a diagnosis to that effect. Even in the face of the text messages and letters to which I have referred, both experts maintained their opinion. At one stage in his evidence Dr Furst acknowledged that some of the language employed "on the face of it, would appear to be inconsistent with her being fearful" but he went on to explain "unless she's wanting to go along with someone and trying to convince them that she still sees them in a positive way or wants to please them in some way." In this regard, there remained a prospect that Farhad Qaumi or his brothers would be released on bail and, as the offender told Mr Borenstein in terms of her current predicament, "he has got people everywhere". [12] The correct approach to such expert evidence was explained by Allsop P (as his Honour then was) in Devaney v R [2012] NSWCCA 285 at [88]:
"88. It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect; … it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them."
Nevertheless, it is for me - not the experts - to assess all of the evidence to determine whether I accept that the offender acted under duress and, if so, the extent to which that factor should operate as a mitigating feature.
The offender's evidence also receives support in the evidence of Detective Inspector Browne. Mr Browne emphasised the pattern of behaviour exhibited by Farhad Qaumi including his use of threats and intimidation to get people to follow his directions and orders.
I must take into account the fact that there seems to have been no complaint to anybody that she was under threat from Farhad Qaumi or that he sexually assaulted her. Of course, her fear and PTSD may explain an absence of complaint. It is well recognised that victims of sexual assault are often reluctant to complain and that delay in complaint is a neutral factor in assessing the credibility of such an allegation. When the pre-trial hearing commenced, my observation of the offender in the dock was that she was quite affectionate and friendly towards the Qaumi brothers. This observation is confirmed in one of her statements where she said she was on "reasonably good terms" with them and "mainly sat with the three Qaumi brothers". [13] This is not consistent with the evidence that she now gives.
Mr Dhanji SC submits that, in the absence of duress, there is simply no other explanation for the offender's behaviour. She had nothing to gain from being involved and the targets of the crimes were people that she considered to be friends. Further, in spite of her ongoing contact with people involved in criminal activity (her brother, his friends, the Hamzy family), until her involvement with Farhad Qaumi she had never committed any serious offence. It was submitted that the evidence of the "fondness" and affection disclosed in the letters should be treated with caution because, to accept it, I "would have to get to the point where [I accepted that the offender was] lacking all humanity to remain on fond terms". [14] The difficulty with this submission, and a number of other submissions concerning an assessment of the offender's state of mind (duress) and character, is that it proceeds from an assumption that people are either one thing or the other. It is couched in absolute terms. This is contrary to my understanding of the complexity and contradictions of human nature. As Callinan J observed in Ryan v The Queen [2001] HCA 21; 206 CLR 267 "[c]haracter is not, as has been observed, a one-dimensional feature of any person". Based on all of the evidence, I have concluded that the offender's feelings towards Farhad Qaumi and his brothers were complex and contradictory.
But even allowing for that conclusion, and after considerable hesitation, I have concluded on the balance of probabilities that the offender took part in the crimes with which she is charged while acting under a degree of duress. In reaching that conclusion, I have considered all of the evidence and the careful and persuasive submissions of senior counsel. I accept that a number of threats were made against the offender and her mother. I accept that Farhad Qaumi showed up, unannounced, at her house and reminded the offender of how easy it was to find her. I accept that he used intimidation and fear to create in the offender a feeling of helplessness. She was out of her depth. On the day of the Hamzy killing, events unfolded quickly and - from the offender's perspective - unexpectedly. When she acted as an accessory to the shooting of Mr Abu-Mahmoud, she was fearful that a failure to co-operate with Jamil and Mumtaz Qaumi would get back to Farhad, and that his repeated threats remained a significant factor operating in her mind.
In reaching those conclusions, I am influenced by the supporting evidence of the experts and Detective Inspector Browne as well as the fact that, before 29 October 2013, the offender had never been involved in such activities. I accept the evidence of Mr El Cheikh that the conduct was out of character and that, before her relationship with Farhad Qaumi, the offender had "nothing serious" in her criminal history and that, when she was involved in the offences, she was "way out of her depth".
[9]
An Assessment of the Objective Criminality After Taking Into Account the Duress
The finding that the offender was acting under duress is an important factor in assessing her objective criminality. However, the offences remain extremely serious. It cannot be forgotten that one human life was taken and another was targeted. Nor can it be forgotten that the offender knew this and could have been under no illusions of the seriousness of the crimes that she was facilitating.
Further, as the learned Crown Prosecutor submitted, the offender allowed herself to remain involved with the BFL and Farhad Qaumi in spite of knowing that they were involved in serious gangland activity. She knew they were involved in drug supply. She knew that they had reached agreement as to the areas in which such drug running would be conducted. She knew that they used guns and that Farhad Qaumi had previously shot and killed two people, albeit that the offender believed that he did so in self-defence; and so found a jury.
In the end, even allowing for the finding of duress, the offender's criminality in respect of each of the offences was significant. In each case, there is a significant aggravating feature arising under s 21A(2) of the Sentencing Act. In the Hamzy shooting, the principal offence took place in the home of the intended victim, Mohammed Hamzy. The offender knew that this was so and was chosen to drive because she knew the location of the residence. That is an aggravating feature under s 21A(2)(eb) - "the offence was committed in the home of the victim or any other person". I appreciate that the offender's actions occurred outside of the home but, whether the precise terms of the section are engaged or not, this is a matter that aggravates the objective criminality of count 1. Similarly, the Chokolatta Café shooting was committed "without regard for public safety": s 21A(2)(i). In each case "the offence was part of a planned or organised criminal activity": s 21A(2)(n). I take that into account in assessing the criminality for the second count. However, in relation to the first count, that aspect of the criminality is caught by the offence on the Form 1 and that has resulted in some (relatively small) increment in the sentence. The application of s 21A(2)(n) should not result in that aggravating feature receiving further attention in an assessment of the criminality in count 1.
Insofar as it is useful and convenient to use relative terms in such assessments, I consider that her objective criminality in being an accessory before the fact to the Hamzy murder was in the mid-range of objective seriousness contemplated by such offences. In the shooting of Mr Abu-Mahmoud, her criminality was below the putative and hypothetical mid-range. In adopting such terminology, I should not be understood to be engaging in any way the provisions relevant to the standard non-parole period. I am merely recording my assessment of where the offences fall relative to the wide range of offences and conduct that might be caught by offences charged under s 346 in combination with ss 18 and 33A of the Crimes Act.
[10]
thE OFFENDER'S PERSONAL CIRCUMSTANCES, prospects of rehabilitation and contrition
The offender was born in 1982 and will shortly turn 34 years of age.
She has a criminal record of no real relevance in the context of her present legal troubles. A charge of possessing a weapon was dismissed without conviction in 2001. She was fined for assaulting a police officer in 2003, placed on a bond for assault occasioning actual bodily harm in 2008 and fined for possessing drugs in 2007. Even though the assault occasioning bodily harm carries a maximum penalty of 5 years and is, by definition under the Sentencing Act, a "serious personal violence offence", I do not consider that her record is an aggravating feature: cf s 21A(2)(d). I take the view that she does not have a significant record of previous convictions and that, while she is not entitled to the kind of leniency given to a first offender, she is entitled to a degree of leniency. It is, to that extent, a mitigating feature: s 21A(3)(e). On the other hand, her minor criminal history, her participation in a criminal group for six months, her long-term relationship with a notorious criminal (Bassam Hamzy) and her willingness to accept the role as a conduit between Farhad Qaumi and Mumtaz Qaumi mean that, in spite of the positive accounts of the referees, I am not satisfied that that the offender was a person of good character in the time leading up to the offences.
Apart from the experts, two witnesses were called on behalf of the offender. Both of them were impressive and I believed their evidence.
The first was her mother. She gave evidence that confirmed aspects of the offender's account of her involvement in the Hamzy murder. The offender is the youngest of her children and she has been, for many years, her mother's carer. The mother suffers from a number of illnesses that mean that she needs significant assistance in day to day living. She expressed surprise that the offender became involved in offences as serious as these even though she knew of her daughter's relationships with others involved in criminal activity.
The second witness was Omar El Cheikh. Mr El Cheikh was in a relationship with the offender for some time and has remained her friend since that time. He was aware of her relationship "with criminals" but did not believe that she was involved in criminal activity herself. He believed that she would not be in the trouble that she is in if it had not been for the job offer from MC and the renewal of her association with Bassam Hamzy and her subsequent involvement with Farhad Qaumi.
I have also considered the positive references provided by Saha El-Cheikh, David McDonald, Lisa McCarthy and Robert Melham. They describe her as honest, reliable, good natured, and a loving and caring daughter. The referees found it difficult to understand how the person that they knew could be involved in such serious offences.
As I have said, Dr Furst and Mr Borenstien were of the opinion that the offender suffers PTSD and had that condition when she committed the offences. While I accept the diagnosis, my view is that the matter has little impact on a proper assessment of the offender's moral culpability or objective criminality. Nor do I accept that the condition impacts on the weight to be given to general deterrence. I do accept that it will make her condition of incarceration more onerous and I take the matter into account in assessing the appropriate length of the sentence.
The offending occurred in the context of the offender's interaction with both sides of the gangland turf war that was played out between the rival chapters of the BFL. Because a member of the Hamzy family was killed and because she is giving evidence against members of the BFL Blacktown, her ties to criminal underworld appear to have been severed. Material in the confidential evidence confirms that. In view of her lack of serious criminal offences, the length of the sentence to be imposed and other aspects of her character, I am satisfied that she is "unlikely to re-offend" and that she has "good prospects of rehabilitation". [15]
As to remorse, I am unable to come to a positive finding on the balance of probability. I did not find her evidence on this subject, and generally, to be particularly persuasive. Where I have made findings in her favour, I have done so because her evidence receives support from other evidence. I accept Mr Dhanji's submission that it is not necessary for the offender's evidence to be corroborated, but her account is self-serving and her demeanour was not convincing.
Her evidence in relation to remorse was elicited as follows:
"Q. And in relation to the first of those shootings, it resulted in the death of Mahmoud Hamzy?
A. Yes.
Q. What can you say about your responsibility for that crime?
A. With Mahmoud?
Q. Mahmoud Hamzy.
A. Can you ask me again? Like I don't understand.
Q. How do you feel about what you have done?
A. I'm devastated.
Q. Is there anything that you would like to say about what you have done?
A. Um, look honestly, nothing I say is going to bring the guy back. He was a good friend of mine. He wasn't a trouble maker. He was innocent. Nothing like that should have happened to him and obviously I've had time to reflect on everything. I didn't want to do it in the first place. I was forced to do it. And I'm going to have to live with that for the rest of my life. I'm sorry for what I've done to his family because I put myself in their position and if someone had done anything like that to my nephew or someone like that that I love, I don't know how I'd cope. Just extremely sorry and if I could go back in time, I would change it. I would have gone to the police straight away.
Q. What about the fact that you then continued on and involved yourself in those two further shootings?
A. I don't think you understand exactly what was happening to me. Like I'm a girl. I've got all these guys with guns threatening me, threatening my family. And I'm extremely sorry for everything that happened, all the innocent people that got hurt."
As this evidence was given, I was not persuaded that the offender either appreciated the gravity of the crime or that she had truly accepted responsibility for her actions. On this issue, I am not assisted to any real degree by the evidence of others (the experts, the referees, her mother or Mr El Cheikh). Because it came so late, her plea of guilty (and offer of assistance) is equivocal on the issue. [16] Particularly in view of the restrictive way in which the statute allows remorse to be considered to be a mitigating feature, [17] I am unable to find that the offender is remorseful. Even in the absence of the statute, I would not have been satisfied on this issue.
[11]
PARITY AND PROPORTIONALITY
Principles of equal justice require that I consider the sentencing outcomes in some other cases in order to ensure that the sentence that I impose does not engender a justifiable sense of grievance in the offender. There must be due and proper proportion between the sentences imposed on offenders who are sentenced for their participation in the same offences. This principle applieswhether the offenders are charged with the precisely the same offences orwith different offences arising from the same or related circumstances. It isnot a matter to be approached technically, let alone mathematically. Rather, it is an important principle to be applied pragmatically and with a sense of fairness and justice, giving effect to relevant similarities and differences between the cases.
The sentences imposed on three co-offenders have been drawn to my attention. One of these is relevant to the Hamzy murder while the other two relate to the shooting at the Chokolatta Café.
Reference was made to the sentence imposed on NK: R v NK (No 3) [2015] NSWSC 125. NK was sentenced for being one of the shooters in the Hamzy murder but, for reasons best known to the parties, his plea of guilty under s 33 of the Crimes Act was accepted. There were two counts arising out of that incident encompassing the infliction of grievous bodily harm (with intent) of both Mahmoud Hamzy and Omar Ajaj. The maximum penalty for each count was 25 years and there was a standard non-parole period of 7 years. This is to be compared with the maximum penalty of life imprisonment that applies to the present offender. NK's case raised issues of totality because he was charged with a number of other serious offences including an allegation of specially aggravated breaking and entering (maximum penalty 20 years), the large commercial supply of drugs (maximum penalty of life imprisonment) and, most significantly, the cold blooded contract murder of a man called Joseph Antoun. I was not satisfied that duress was a prominent feature of his involvement in the Hamzy shooting, although I did conclude that he was acting under substantial duress when he shot Mr Antoun in the presence of the victim's wife and the close proximity of his young twin daughters. His assistance and plea of guilty warranted a reduction in sentence of 60%. NK presented a moving personal case, the relevance of which is explained in the judgment on sentence.
I imposed an aggregate sentence of 21 years with a non-parole period of 15 years and 9 months. That sentence, arrived at after the application of the 60% discount, encompassed all of the criminality in the five counts, noting that there were other offences taken into account in sentencing on some of the counts. In imposing that aggregate sentence, it was necessary to indicate the sentence that would have been imposed on the individual counts. The indicative sentences were themselves affected by the application of the totality principle.
Relevantly, for the count relating to the shooting of Mr Hamzy, I indicated a sentence involving a starting point of 12 years. After the application of the 60% discount, the indicative sentence was 4 years and 10 months. Because a standard non-parole period applied, it was necessary to specify an indicative non-parole period (3 years and 7 ½ months).
Two men (known as MM and WK) were sentenced on 17 March 2016 by Judge North in the District Court in relation to their involvement in the Chokolatta Café shooting.
MM was sentenced in relation to a number of other offences and received an aggregate sentence. In relation to the Chokolatta Café incident, he pleaded guilty to an offence under s 33A(1)(a) of the Crimes Act, that is the principal offence in relation to which the present offender pleaded guilty to being an accessory before the fact. Judge North indicated a starting point of 10 years. After the application of a 55% discount, a sentence of 4 years and 6 months was indicated.
WK was sentenced in relation to six offences, three of which arose out of the Chokolatta Café shooting. Judge North indicated a starting point of 10 years in respect of each of those offences. WK received a total discount of 60%, resulting in an indicative sentence of 4 years for each of the three counts.
As with the sentencing of NK, there are complications arising from the fact that the principle of totality had a significant role to play and there was an imposition of an aggregate sentence.
While the Crown Prosecutor informed me that there was to be an appeal against the asserted inadequacy of the sentences imposed on MM and WK, it is unclear whether the grounds of that appeal will impeach the starting point with which I am dealing. In any event, the Crown accepts that those indicative starting points remain extant and must be used in the application of equal justice principles.
Needless to say, it is difficult to apply principles of parity and proportionality in the circumstances of the present case. One common feature of the sentencing of both NK and the present offender is the degree of artificiality that arises as a result of the particular offences with which each is to be sentenced. The offender is to be sentenced for her role in the taking of human life, and for an offence that carries life imprisonment. That was not the case with NK (at least in relation to the Hamzy murder). As to MM and WK, their roles were (self-evidently) more substantial than the offender's role in the Chokolatta Café shooting. There were also differences in the personal cases presented on behalf of the co-offenders. NK's subjective case was particularly compelling.
Taking all of those matters into account, as well as the finding of duress and relevant personal features of the cases, I intend to impose a sentence on the offender that is in due proportion with the sentences that were indicated in respect of her co-offenders. My aim is to ensure that she is not left with a justifiable sense of grievance arising out of a comparison between the sentences.
IMPACT ON THE VICTIMS AND THEIR FAMILIES
Section 28 of the Sentencing Act provides for the provision of victim impact statements and the method in which they are to be used by a sentencing court. Section 28(4) provides:
"(4) A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community."
No victims' impact statements were provided in this case. All I know is that one man was killed and that another suffered serious injuries. I assume, and proceed on the basis, that the provision in s 28(4) does not mean that the taking of human life in the present case is to be treated less seriously than it would be in a case where family members provided evidence pursuant to the section. [18]
To the family and friends of Mahmoud Hamzy, I express the Court's deep sympathy.
[12]
GENERAL SENTENCING PRINCIPLES
In determining the appropriate sentence, I have taken into account the purposes of punishment set out in s 3A of the Sentencing Act as well as the established principles of sentencing at common law. The offender must be adequately punished and made accountable for her actions and her conduct must be denounced. The sentence must protect the community from the offender and attempt to prevent crime by deterring her and others from committing similar offences. I must do more than pay lip service to these concepts. The penalty actually imposed must reflect those purposes.
At the same time, I must attempt to promote the rehabilitation of the offender. Her plea of guilty and offer to assist the authorities is a significant first step in this process. Her involvement in the killing of Mahmoud Hamzy has decisively ended her relationship with those members of the Hamzy family who are involved in criminal activity. Similarly, her relationship with the Qaumi brothers has been terminated by her offer to give evidence against them. Her involvement in such serious offences arose because of these connections, all of which have now been severed seemingly once and for all.
I have paid careful attention to the maximum penalty in relation to each offence and have considered the standard non-parole periods that apply to the principle offences in the limited manner that I have articulated above.
I have synthesised the diverse and countervailing considerations in determining what is an appropriate punishment for these extremely serious offences whilst also taking into account the unique circumstances of this individual offender.
[13]
PARTICULAR FINDINGS RELEVANT TO SECTION 21A.
Section 21A(2) of the Sentencing Act provides a list aggravating factors whiles sub-section (3) provides a list of mitigating factors. In spite of those provisions, remarks (or judgments) on sentence should not become a check list. [19] However, I suppose it is appropriate to indicate (or re-state) my findings especially in relation to matters where controversy might attend my remarks. Where the factor is clearly not relevant, I will not make reference to the particular paragraph of the relevant sub-sections.
In terms of aggravating features referred to in s 21A(2), and adopting the paragraphs numbers therein:
(b) Violence is an inherent part of both offences and this factor does not further aggravate the objective criminality.
(c) The use of weapons is not uncommon in murder cases but it is not an element of the offence and the number of weapons employed in count 1 is a matter of some significance in an assessment of the gravity of the offence. Categorising it as "aggravating" under the section is not a particularly helpful exercise. The use of a weapon is an inherent feature of the offence in count 2.
(d) As I have explained, I do not consider that the offender's record of convictions to be an aggravating factor.
(e) Any offence of accessory before the fact necessarily involves more than one offender. Each of the principal offences was committed in company and that forms part of my assessment of the objective criminality. However, I do not consider that this fact aggravates the offence within the terms of the section.
(ea) The fact that count 1 was committed in the home of a person other than the victim is an aggravating feature.
(f) There is no evidence of gratuitous cruelty.
(g) There is no evidence that the injury, emotional harm etc is beyond that inherent in each of the offences charged. Clearly the injury is substantial in each case but that is in the very nature of the offences.
(i) The disregard to public safety involved in count 2 is an aggravating feature in relation to that count.
(n) While the offences were part of a planned or organised criminal activity, that fact is encompassed in the offence on the Form 1. I have not treated it as a further aggravating feature in respect of count 1. The planning in relation to both counts has been considered in assessing the objective criminality.
(o) There is no evidence that the offence was committed (by the offender) for financial gain.
In terms of the mitigating features in s 21A(3):
(d) I have found that the offender was acting under duress.
(e) I have found that the offender does not have a significant record of previous conviction.
(f) I am not persuaded that the offender was a person of good character.
(h) I am satisfied that the offender has good prospects of rehabilitation.
(i) I am not satisfied that the offender is remorseful.
(j) While I accept the evidence that the offender was suffering from PTSD, I do not accept she was not fully aware of the consequences of her actions.
(j), (k) and (l) I have dealt with the offender's plea of guilty, willingness to facilitate the course of justice and assistance elsewhere in this judgment.
[14]
COMPARATIVE CASES AND STATISICS
The statistical database maintained by the New South Wales Judicial Commission discloses only one offence of accessory before the fact to murder. That offence attracted a sentence of 10 years with a non-parole period of 7 years and six months. Little is known of the circumstances of that case apart from the fact that it was a plea of guilty to one offence (with matters on a Form 1) and the offender was older than 50 years.
However, the diligence of Senior Counsel for the offender has uncovered two cases considered by the NSW Court of Criminal Appeal: Kanaan & Ors v R [2006] NSWCCA 109 [20] and Aoun v R [2007] NSWCCA 292.
I accept Mr Dhanji's submissions that each of those offences involved greater criminality than the present case. Neither involved a finding of duress and each of the offenders pleaded not guilty. The sentences imposed in those cases (respectively, 22 years with a non-parole period of 16½ years and 17 years and 3 months with a non-parole period of 13 years) demonstrate the seriousness with which the offence of accessory before the fact to murder is to be treated. However, in each case, the starting point is substantially higher than that which is appropriate in the present case. The role of the offender was less significant, her involvement (in the Hamzy shooting) extended over a limited period of time and she was influenced by duress.
I have considered the sentencing outcomes in these cases but, ultimately, the present case must be determined by reference to its own peculiar factual circumstances.
[15]
Accumulation, concurrence and totality
The offender accepts that there must be a degree of accumulation between the sentences. While the two offences were connected, they involved two discrete and serious crimes committed around a week apart. There were separate victims, one of whom was killed and one of whom was seriously injured. The actions of the offender that constitute her offence of being an accessory before the fact were different, separate and distinct. While the principle of totality and the obvious connections between the offences require a degree of concurrency, there must be a substantial degree of accumulation.
[16]
PRE-TRIAL CUSTODY, "QUASI CUSTODY" BY "HOUSE ARREST" AND THE Commencement date OF SENTENCE
The offender's sentence should be back-dated to take into account the 38 days that she spent in custody in the early days of her remand period. [21] The offender went into custody on 29 March 2016 at the conclusion of the evidence adduced on sentence. [22] Accordingly, based on 38 days of custody before that date, the parties agree that the commencement date of the sentence would be 20 February 2016. [23]
It was submitted that the offender's bail conditions constituted a form of "quasi custody" such that it may be appropriate further to back-date the sentence by taking into account, on a pro-rata or proportionate basis, the time that she has been subject to what has been, in effect, a form of house arrest or, as one of the referees put it, home detention. An analogy is drawn with cases where a similar approach has been taken when an offender has been required by her bail condition to remain in a secure drug rehabilitation facility: see for example, R v Cartwright (1989) 17 NSWLR 243, R v Eastaway (unreported, NSWCCA 19 May 1992) and Hughes v R [2008] NSWCCA 48.
In R v AC (No 3) (Detention application) [2016] NSWSC 209, I refused the Crown Prosecutor's detention application after the offender entered her pleas of guilty. Up until that point she had been on bail, subject to the following conditions imposed by Campbell J on 27 November 2014:
"1. To be of good behavior.
2. Report to Marrickville Police daily between 8:00am and 8:00pm.
3. Surrender passport to Parramatta Court Registry by 4:00pm on 27 November 2014 (noted this has already been complied with from an earlier occasion).
4. Not to approach any points of international departure and not to apply for any travel documents.
5. Reside at 89 Wardell Road, Dulwich Hill NSW 2203.
6. Not to associate or contact by any means any relative of any alleged co-offender.
7. Not to go within 1km of any correctional facility.
8. Not to attempt to contact any Crown witness by any means including any telecommunication device.
9. Acceptable person to enter into agreement to forfeit the sum of $1,400,000.00 if the accused fails to comply with the bail undertaking
10(1). Not to leave residential premises for any reason except to report to the police.
station and to attend court and to do so by the most direct route;
10(2). To attend legal appointments as arranged by Mr Khatiz details of which are to be provided to Det Sgt Glen Browne or his delegate.
10(3). To attend hospital in case of emergency or doctor's surgery - evidence to be provided to D/Sgt Glen Browne or his delegate.
10(4). To possess or use one mobile telephone - the telephone number of which is to be provided to D/Sgt Glen Browne or his delegate within 24 hours of purchase. Any breach to result in an automatic revocation of bail
11. Not to associate with any person(s) included on a list of names which may be provided by the OIC or his delegate
12. Not to contact any inmate in a NSW Correctional Centre."
There were variations to these conditions from time to time. For example, her residence was changed at one stage to an address elsewhere in Sydney. However, the condition set out at 10 above (that is, the house arrest condition) remained in place until I relaxed it on 9 February 2016 during the course of the pre-trial hearing. From 9 February, until she entered her plea, she remained subject to an onerous curfew condition.
I accept that these conditions amounted to a form of house arrest and that they were very onerous. I have taken those conditions into account in determining the appropriate sentence.
However, generally speaking, the authorities in which there has been a specific back-dating of the sentence are those where an offender is required to live in a residential rehabilitation programme. As onerous as the conditions were, the offender was able to live in her family home for a period and then at another residential property of her choosing. There is no suggestion that any request for variation was refused or opposed or that the conditions of her bail involved the kinds of strictures that apply to patients at rehabilitation centres such as Odyssey House, The Glen or Bennelong Haven. Further, even in such cases, there is no requirement for the sentence to be back-dated. In R v Sullivan [2004] NSWCCA 99, Bell J (as her Honour then was) said:
"66. The applicant relied on R v Cartwright (1989) 17 NSWLR 243 at 258-9. In that case the Court took into account a period of eight months spent by the applicant under the supervision of the Australian Federal Police while he was assisting them with their inquiries. His living situation was described as one of quasi-custody and he was given credit for 75% of that period. Reliance was also placed on R v Eastway (unreported) Court of Criminal Appeal, 19 May 1992. The respondent to the Crown appeal in that case had spent a period of 14 months at Odyssey House. The primary judge allowed approximately a 50% deduction in recognition of the time spent at Odyssey House. The Court did not consider that the judge erred in approaching the matter on that basis and the Crown appeal was dismissed.
67. Neither Cartwright nor Eastway require that a sentencing judge quantify a discount in relation to the period spent by an offender in a residential treatment program or the like. The circumstance that the applicant had spent a period of ten months in what the Judge characterised as a quasi-custodial position was a factor that he took into account."
I do not propose to back-date the sentence by reference to a mathematically calculated percentage of the time spent on bail conditions that might be described as "quasi-custodial". However, the onerous nature of those conditions and the applicant's strict compliance with them is relevant to the proper exercise of the sentencing discretion in a number of ways. First, as she put it, her life was on hold for that lengthy period. Second, her opportunities for recreation in the community were severely constrained. Third, her compliance with the conditions speaks eloquently of her prospects of rehabilitation. Accordingly, I have given this matter some weight in determining an appropriate sentence.
[17]
special circumstances
Pursuant to s 44 of the Sentencing Act, I am satisfied that there are special circumstances justifying a reduction of the portion of the sentence that should be spent in custody. That is, I will reduce the non-parole period for each sentence below 75% of the total sentence imposed for each offence.
The special circumstances include the onerous conditions of her present and future custody, noting that this matter was part of an assessment of the discount for assistance but also noting that it has particular significance to an assessment of the non-parole period: cf, for example, Bugmy v The Queen [1990] HCA 18;169 CLR 525 at 533 (Mason CJ and McHugh J, dissenting in the outcome), Griffiths v The Queen [1989] HCA 39; 167 CLR 372 at 379 (Brennan and Dawson JJ), R v Moffitt (1990) 20 NSWLR 114 at 116 (Samuels JA); and see R v DW [2012] NSWCCA 66 at [48], [51] (Basten JA). Secondly, after a lengthy period of time in such custodial conditions, the offender will need a substantial period on parole to assist in her re-integration into the community. Finally, in finding special circumstances, I also take into account the partial accumulation of the sentence and the fact that the adjustment of the non-parole period for the individual sentence will be diminished by the accumulation of sentence.
I am conscious of the fact that the partial accumulation of the sentence will result in a total non-parole period that is around 68.5% of the total sentence. Any further reduction in the non-parole period would result in a period spent in custody that is unreasonably disproportionate to the gravity of the crimes for which the offender must be sentenced, even allowing for her entitlement to a substantial discount.
[18]
sentence
For the offence of being an accessory before the fact to murder, the starting point for the sentence will be 16 years. Applying the discount of 50% results in a sentence of 8 years. I find special circumstances and adjust the non-parole period while noting that the conditions of incarceration have already played a role in the assessment of an appropriate discount for assistance. The non-parole period will be 5 years.
For the offence of being an accessory before the fact to the shooting with intent to cause grievous bodily harm, the starting point will be 9 years. Applying the discount of 50% results in a sentence of 4½ years. With a finding of special circumstances the non-parole period will be 3 years.
There will be accumulation between the sentences to the extent of 18 months. This will result in a total effective sentence of 9 years and 6 months with a non-parole period of 6 years and 6 months.
I will now formally impose sentence:
1. For the offence of being an accessory before the fact to discharging a firearm with intent to cause grievous bodily harm (Count 2) you are sentenced to a non-parole period of 3 years commencing 20 February 2016 and expiring on 19 February 2019. There will be a balance of term of 1½ years expiring on 19 August 2020.
2. For the offence of being an accessory before the fact to murder (Count 1), and taking into account the offence of participating in a criminal group (Form 1), you are sentenced to a non-parole period of 5 years commencing on 20 August 2017 and expiring on 19 August 2022. There will be a balance of term of 3 years commencing 20 August 2022 and expiring on 19 August 2025.
3. You will be eligible for release to parole at the expiration of the non-parole period on count 1.
[19]
Endnotes
I have anonymised the name of this case.
The solicitor is not represented in the proceedings and has no opportunity to contest the factual assertions made by the offender. Some of those assertions paint him in a very bad light. His name is not significant and it would be unfair to him to publish his name.
This is the word used in the agreed facts.
T 99 (29 March 2016).
T 76-77 (29 March 2016).
T 50.
T 52.
T 59.
T 126 (1 April 16).
Ex AC-F.
Ex AC-3.
Ex AC-1, tab 1, p 7.
Confidential exhibit AC-E, statement dated 19 February 2016.
T 130 (1 April 2016).
21A(3)(g)-(h).
R v Thompson & Houlten [2000] NSWCCAA 309; 49 NSWLR 383 at [117].
21A(3)(i).
Cf R v Hines (No 3) [2014] NSWSC 1273 at [78]-[84].
Cf Ghamraoui v R [2009] NSWCCA 111 at [23] and R v Sumpton (No 4) [2015] NSWSC 684 at [10].
The relevant sentence was imposed on a co-offender called El-Assad.
The chronology is set out in R v AC (No 3) (Detention Application) [2016] NSWSC 209.
R v AC (No 4) (Bail Refused) [2016] NSWSC 354.
The parties reached agreement on the commencement date (subject to questions of quasi-custody) and notified my Associate by email.
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Decision last updated: 23 November 2016