Dawood v R
[2013] NZCA 381
•20 August 2013 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA109/2013 [2013] NZCA 381 |
| BETWEEN | NAJEEB DAWOOD DAWOOD |
| AND | THE QUEEN |
| Hearing: | 25 July 2013 |
Court: | White, Goddard, Simon France JJ |
Counsel: | C J Tennet for Appellant |
Judgment: | 20 August 2013 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
Introduction
The appellant pleaded guilty to the murder of his wife after stabbing her 55 times with a knife on 2 September 2011, and was sentenced to life imprisonment by Miller J on 8 February 2013, with a minimum term of imprisonment of 17 years.[1]
[1]R v Dawood [2013] NZHC 122.
The murder was the culmination of a history of threats and violence by the appellant towards his wife, prompted by depression and abnormal jealousy over her imagined infidelity. The history of violence included threats to harm the couple’s children and an assault on their youngest daughter in 2010, when she was aged 13 years. Three separate charges arose from that 2010 incident, for which Miller J sentenced the appellant to concurrent sentences of nine months’ imprisonment. In addition, the appellant was sentenced to a concurrent sentence of four years’ imprisonment for the aggravated wounding of his eldest daughter on the day that he murdered his wife.
The appeal against sentence is directed to the 17 year minimum term imposed by Miller J, on the ground that the starting point of 19 years was too high, resulting in a manifestly excessive or inappropriate sentence, and inadequate credit being given for the appellant’s personal circumstances and his plea of guilty. Alternatively, it is argued that Miller J failed to follow the two step process advocated in R v Williams,[2] and to correctly apply the approach in Hessell v R,[3] resulting in a loss of appropriate credits for the appellant. A further argument was that the 17 year term was manifestly unjust under s 104 of the Sentencing Act 2002 (the Act) and that a minimum term of imprisonment of 14 years would have been appropriate in all the circumstances.
Background facts
[2]R v Williams [2005] 2 NZLR 506 (CA) at [52].
[3]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
The night before the murder the appellant went to a shed at the rear of the family property, which served as his private office. There he accessed voice recordings he had been making of his wife’s telephone calls and saved these onto his computer, placing them into a structured series of folders under her name. He then typed a letter to his eldest son, in which he spoke of defacing his wife and committing suicide.
The next morning the appellant lured his wife to the shed, locked the door and forced her to sit in a chair. He then tied her arms to the chair with masking tape, took a large kitchen knife and began stabbing her. When their eldest daughter heard her mother’s screams she desperately tried to get into the shed to rescue her mother and was herself attacked by the appellant and stabbed. Having repelled his daughter, the appellant continued the attack on his wife on the floor of the shed after she begged him not to let the children see what he was doing. In all, she sustained some 55 stab wounds to her face, neck, chest, back, arm and hands. Five of those wounds entered her chest cavity.
Once the appellant was satisfied his wife was dead he dropped the knife and stood on her body to reach a rope tied to the rafters, from which he then tried to hang himself. He was resuscitated after his children called 111.
Eight months later the appellant pleaded guilty to his wife’s murder.
The sentence
Having set out his assessment of the facts, Miller J turned to construct the sentence. The first question was whether the crime fell into a category for which a 17-year minimum would normally be required under s 104 of the Act, unless that sentence would be manifestly unjust. In making his initial assessment, Miller J had regard first to the gravity of the appellant’s offending, of which two features stood out: the planning in detail over time; and the very high level of brutality and callousness involved. Of these features the Judge said:
[30] ... the crime ... was planned in detail over a significant period of time, with the weapon and restraints arranged, the music and telephone recordings prepared, the suicide letter written and the rope prepared. You carefully manipulated [your wife] to get her into the shed, beginning with breakfast that morning. I do not think it matters that you may have decided to kill rather than maim at the last minute.
[31] ... the crime was characterised by a very high level of brutality and callousness. Particular features of that were the use of the chair and restraints coupled with the music and recorded calls, all lending an element of ritual to the killing, her near-complete helplessness once restrained, the presence of the children, and the number and severity of the stab wounds, some of which were inflicted as she lay making no attempt to defend herself.
The Judge found the appellant’s culpability was significantly worsened by the attack on his eldest daughter during the course of the same incident. Further aggravating features were a history of violence and control by the appellant over his family; that the murder was committed at the family home; and the very severe effect on the children who were also victims of the offending. These combined factors left the Judge in no doubt that, even after taking the mitigating factors of depression and abnormal jealousy into account, the case fell within the 17 year category provided for in s 104 of the Act.
The next step undertaken by the Judge was to decide what an appropriate minimum period ought to be. After considering a number of comparable cases, which the Judge referenced in his sentencing notes, and having regard to the significant aggravating features present, the Judge adopted a starting point of 19 years’ imprisonment.
The Judge then considered what mitigating factors there were. He found the most significant was the guilty plea, entered eight months after the appellant was charged with murder. A discount of 10 per cent was allowed for the guilty plea, notwithstanding conviction had been inevitable. The Judge accepted the appellant was now remorseful but noted he continued to blame the victim.
The Judge then considered the appellant’s personal mitigating factors, namely his depression and his abnormal jealousy. The Judge treated these as features of the appellant’s personality, which he had little capacity to change. He noted the appellant’s depression was of recent origin and followed his refusal to take opportunities that had been offered to him in New Zealand and a lack of willingness to adapt to a different culture. The Judge found overall that these personal factors did not reduce the appellant’s culpability by very much. He applied a five per cent discount, including a very limited allowance for cultural dislocation. The Judge further noted that although the appellant’s English was poor there was no evidence that he would find a sentence of imprisonment unduly harsh.
No allowance for good character was sought or given.
Added together, the allowances made for the mitigating factors reduced the starting point of 19 years to a nominal end sentence of 16 years and three months. This calculation, which was rounded, took into account the 10 per cent discount for the appellant’s guilty plea as the last step in the sentencing exercise, in accordance with the approach in Hessell v R.
The Judge then came to the final question: whether a minimum term of 17 years’ imprisonment would be manifestly unjust in all the circumstances of the appellant’s case. Having regard to the number and gravity of the qualifying factors, and in particular the brutality, callousness and degree of premeditation involved, the Judge found himself unable to accept that a minimum term of 17 years would be manifestly unjust. Although the Crown had accepted that a minimum period of less than 17 years would be justified, on account of the appellant’s guilty pleas, and had recommended a minimum period of 15 and a half years, the Judge’s assessment of the situation differed. He concluded thus:
[41] I have paid close attention to the submissions of counsel, but I find myself unable to accept them. Circumstances justifying a minimum period of less than 17 years need not be rare, but they must be exceptional. The assessment is one of overall impression; it must reflect the number and gravity of the qualifying factors that attracted the 17-year minimum in the first place. There are two such factors here, and they are present at a high level of gravity. There is also a question of degree, which can be posed in this way: at what point does a difference between the 17-year minimum and the sentence that I would otherwise impose become manifestly or clearly unjust? I think the difference must be significant, when assessed in the context of what must inevitably be a very long sentence.
[42] When I stand back and look at the case overall, I am unable to accept that a minimum of 17 years is manifestly unjust for this unusually calculated and brutal crime. This is not to overlook the mitigating factors. But for them the appropriate minimum would be 19 years.
The argument on appeal
Under four heads of argument, Mr Tennet submitted that the starting point of 19 years was manifestly excessive: first, having regard to the statutory scheme and in comparison with other cases; second, because the Judge failed to give adequate credit, particularly in relation to the appellant’s mental disability; third, because the discount for the guilty plea was inadequate, particularly having regard to the appellant’s mental health issues; and fourth, because the Judge failed to apply the discount for the guilty plea as the last step in the sentencing process in accordance with Hessell v R, thus depriving the appellant of the benefit of credit to which he would otherwise have been entitled.
There is a considerable degree of overlap between the four grounds of appeal and it is convenient to distil them into two essential arguments. The first relates to the sentencing process and whether there was an element of double counting of the aggravating factors and too little allowance made for the mitigating factors as a result of an erroneous sentencing approach. The second addresses the Judge’s assessment of the aggravating and mitigating factors and whether he erred by according too little or too great a weight to these, compounded by a failure to have regard to comparable cases. In relation to the latter, Mr Tennet referred to the decisions of this Court in R v M[4] and E (CA689/2010) v R,[5] which concerned sentencing in cases where mental disability was a factor.
[4]R v M [2008] NZCA 148.
[5]E (CA689/2010) v R [2010] NZCA 13, (2011) 25 CRNZ 411.
Dealing with the first limb of argument, in terms of sentencing approach, the critical issue was whether the Judge erred by not following the two-step approach outlined in R v Williams when determining a justified minimum period of imprisonment in the appellant’s case. Further, whether this alleged error of approach was compounded by a failure to apply the discount for the guilty plea as the final step in sentencing, in line with Hessell v R.
In R v Williams, this Court explored alternative ways of approaching the assessment of culpability when determining a justified minimum term under s 104. In order to avoid the problem of double counting but without compromising the statutory purpose of s 104, and whilst acknowledging that the mere presence of a s 104 factor will not automatically give rise to a 17 year minimum term in every case and that in some cases the imposition of a 17 year minimum term will render a sentence manifestly unjust, the following two step approach was advocated:[6]
An alternative way of proceeding, which often will be more straightforward, would be for the sentencing Court in s 104 cases to approach the justified minimum period of imprisonment in two steps. First the Court would consider the degree of culpability of the instant case in relation to that involved in the standard range of murders... In the course of doing so the Court would take into account in the normal way the pertinent aggravating factors set out in s 104 to the extent they were present, any other applicable aggravating factors, and all those in mitigation. As well, the sentencing Judge would have regard to the policy of s 104 that, in general, the presence of one or more s 104 factors establishes that the murder is sufficiently serious as to justify a minimum term of imprisonment of not less than 17 years. This element is necessary to ensure that effect is given to the legislative policy underlying s 104, which requires courts at times to impose higher minimum terms of imprisonment than they might have done had s 104 not been enacted.
The sentencing judge would then decide what minimum term of imprisonment was justified in all the circumstances of the case including those of the offender. As with cases determined solely under s 103, over time comparisons with other relevant sentences for murder will assist in determination of the appropriate minimum term in s 104 cases.
Where the first step indicates that the appropriate minimum period of imprisonment is 17 years or more the minimum term must reflect that assessment. In cases where the first step points to a lesser minimum term being justified, the Court would go on to the second step and consider whether to impose a minimum term of 17 years imprisonment would be manifestly unjust...
[6]R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54] as cited in Chow v R [2013] NZCA 360 at [79].
As is clear from the traverse of Miller J’s sentencing decision in [8]‑[15] above, the Judge adopted that very approach. First he considered the assessment of the gravity of the appellant’s offending by reference to the two features set out in [30] and [31] of his judgment, as well as having regard to the significant additional factors. In terms of factors mitigating the offence the Judge took into account the appellant’s mental health issues. He then referenced the appellant’s offending against comparable cases, in particular Hamidzadeh v R.[7]
[7]Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369. Also, referred to by Miller J were R v Uluakiola CA123/06, 6 December 2006; R v Zhou HC Auckland CRI-2005-092-10395, 13 October 2006; R v Rajamani HC Auckland CRI-2005-004-1002, 28 March 2006 and R v Duff HC Wellington CRI-2008-091-98, 3 October 2008.
Given the number of s 104 factors present in the appellant’s offending, the starting point was indisputably 17 years’ imprisonment. The Judge found the particular aggravating factors calculated an uplift to a starting point of 19 years.
The Judge then made allowance for the appellant’s personal aggravating and mitigating factors and allowed a discount for those.
The allowances the Judge made for the mitigating factors reduced the sentence to a nominal end sentence of 16 years and three months. This computation included the discount for the guilty plea, as the last step, in line with Hessell v R.
As the first step, the Williams approach had indicated that the appropriate minimum period of imprisonment was 17 years or more, the minimum term ultimately imposed had to reflect that assessment unless it would be manifestly unjust to do so. On a balancing of the aggravating and mitigating factors present, the presumption of a 17 year minimum was not displaced. Thus, the minimum term of imprisonment was properly 17 years to meet the requirements of s 104. To have reduced the sentence under that minimum term, would have compromised the clear statutory purpose.
Turning to the second stage and the final question as to whether a minimum period of 17 years, as provided for in s 104, would be manifestly unjust, the Judge found (as set out in [41] and [42]) that a minimum term of 17 years’ imprisonment was not manifestly unjust in the circumstances of the killing.
The first argument relating to the sentencing process therefore fails.
The second limb of argument focused on the Judge’s assessment of the credits to be accorded to the mitigating factors. Mr Tennet emphasised the appellant’s mental health issues and drew on the psychiatric reports that were before the Court. He pointed out that although a defence of insanity had been ruled out, the psychiatrists were agreed that the appellant had been suffering from a major depressive episode at the time of his offending, as well as from sleep deprivation. There was however a divergence of expert opinion as to whether the appellant was suffering from a mental disorder, namely pathological jealousy. Mr Tennet submitted the preponderance of expert opinion suggested the appellant was suffering from delusional disorder, jealous type.
It is clear from a reading of the various reports that expert opinion was divided on this matter. Dr Brinded recorded no prior history of a diagnosis of mental disorder and no discernible underlying disorder in the appellant, such as schizophrenia. Dr Brinded’s opinion was that the appellant was suffering from a major depressive episode at the time of the murder and “in this mindset his long-standing suspicions of his wife’s infidelity became exaggerated”. He thought the appellant’s personality, life experience and cultural beliefs were all possible contributors to the development of this major depressive episode.
The Judge clearly paid careful regard to the various psychiatric reports and to the diagnoses of depression, abnormal jealousy and cultural dislocation. After giving them due consideration, the credit to be allowed for those personal mitigating factors was essentially for the Judge’s discretion. In assessing the appropriate credit, the Judge noted the appellant’s unquestionable appreciation of the seriousness of the crime he had planned and his refusal to take the opportunities that had been afforded to him. There was no provocation and the appellant had not suffered a sudden loss of control. Whilst accepting that mental illness can justify a substantial deduction the Judge found no such justification in the appellant’s case and in the legal setting. The overall discount of five per cent the Judge allowed was clearly open to him.
The further discount of 10 per cent which the Judge allowed for the guilty pleas was also within an acceptable range and cannot be described as manifestly inadequate. Whilst acknowledging that the appellant’s pleas of guilty were an admission of responsibility, albeit in the face of inevitable conviction,[8] there was very little remorse for which credit could be given. Although Mr Tennet submitted that the appellant’s genuine attempt to kill himself following the murder of his wife should be treated as it was an acknowledgement of responsibility and a strong factor in favour of remorse, it is clear from the letter the appellant wrote to his eldest son the evening prior that he had already planned to commit suicide after dealing with his wife. As a part of his planning and preparation he set up a rope for that purpose.
[8]Hessellv R, above n 3, at [60]–[62] and [65].
Mr Tennet also submitted that the appellant had only planned to inflict grievous bodily harm on his wife and this removed the premeditation aspect. Thus the Judge had overstated the planning as an aggravating feature. We cannot agree. Even if the original intention were to deface his wife (as the appellant put it in his letter to his son) by maiming and disfiguring her, that cannot minimise the degree of premeditation and planning in which he indulged for his end purposes.
The second argument relating to the Judge’s assessment of the aggravating and mitigating factors also fails.
Conclusion
The approach taken by Miller J was in line with the approach advocated in R v Williams and cannot be faulted. A minimum term of 17 years’ imprisonment was required in terms of the clear statutory purpose of s 104 of the Act. Given the significance and number of the aggravating factors, an uplift to 19 years as a start point was justified. The credit that was given for what mitigating features there were and for the guilty pleas was also well within the Judge’s discretion.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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