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IN THE COURT OF APPEAL OF NEW ZEALAND
CA625/2011 [2012] NZCA 550
BETWEEN MOHAMMAD HAMIDZADEH Appellant
AND THE QUEEN Respondent
CA627/2011
AND BETWEEN THE QUEEN Appellant
AND MOHAMMAD HAMIDZADEH Respondent
Hearing: 9 October 2012
Court: Hammond, Randerson and French JJ
Counsel: B L Sellars for Hamidzadeh M D Downs for Crown
Judgment: 28 November 2012 at 2.15 p.m.
JUDGMENT OF THE COURT
AThe appeal against sentence by Mr Hamidzadeh in CA625/2011 is dismissed.
BIn respect of the appeal against sentence by the Solicitor-General in CA627/2011, leave to appeal is granted and the appeal is allowed.
CThe sentence of life imprisonment is confirmed but the minimum period of imprisonment of 12 years six months is quashed and a minimum period of imprisonment of 15 years six months is substituted.
The background to the abolition of the partial defence of provocation
[36]
The framework under the Sentencing Act
[51]
The relevance of s 104
[69]
Summary of the approach to murder sentences where provocation is raised
[71]
This case Conclusions
[75] [81]
Result
[91]
Introduction
Section 169 of the Crimes Act 1961 formerly provided a partial defence to murder on the grounds of provocation. Where the defence was established, it had the effect of reducing murder to manslaughter. In 2009, the defence was abolished[1] but without any legislative guidance about how provocative words or conduct might in future be taken into account in sentencing for murder. These sentence appeals address that issue.
Background
[1] By the Crimes (Provocation Repeal) Amendment Act 2009.
The appellant Mr Hamidzadeh was charged with the murder of a man whom Mr Hamidzadeh suspected was having an affair with his wife (Ms E). We will refer to the victim as V. Mr Hamidzadeh pleaded guilty at an early stage and was sentenced by Courtney J to life imprisonment with a minimum period of imprisonment of 12 years six months.[2]
[2] R v Hamidzadeh HC Auckland CRI-2010-004-19352, 25 August 2011.
For the purposes of sentencing, a disputed facts hearing was scheduled in the High Court but the parties agreed upon a summary of facts subject to one minor matter identified in that summary. In consequence, the disputed facts hearing was vacated. So far as they are relevant, the agreed facts now follow.
Mr Hamidzadeh and Ms E came to New Zealand as refugees from Iran in 2009. They struck up a friendship with V who was also a refugee from Iran. Mr Hamidzadeh did not adapt to life in New Zealand to the same extent as Ms E, who claimed Mr Hamidzadeh did not accept the fact that she was more fluent in English and was adopting more western ways.
Ms E left Mr Hamidzadeh in about June 2010. She told Mr Hamidzadeh she was moving…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Hamidzadeh v R [2012] NZCA 550
Case
[2012] NZCA 550
Decision Date
CaseChat Overview and Summary
The Court of Appeal of New Zealand heard two appeals concerning the sentence of life imprisonment with a minimum period of imprisonment of 12 years six months imposed on Mr Hamidzadeh for the murder of a man he suspected of having an affair with his wife. Mr Hamidzadeh appealed against the sentence, and the Crown appealed against the length of the minimum period of imprisonment. The appeals raised the issue of how provocative words or conduct might be taken into account in sentencing for murder after the abolition of the partial defence of provocation. The Court held that while provocative conduct might be taken into account in sentencing for murder, it was unlikely that a sentence of less than life imprisonment would be appropriate in all but exceptional circumstances. The Court found that the nature of the murder warranted the imposition of the statutory minimum term of 17 years imprisonment under s 104 of the Sentencing Act 2002. The Court concluded that the alleged provocative conduct did not make it manifestly unjust to impose the statutory minimum term. The Court quashed the minimum period of imprisonment of 12 years six months and substituted a minimum period of imprisonment of 15 years six months.