Hamidzadeh v R

Case [2012] NZCA 550


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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.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No
Introduction [1]
Background [2]
Ms Visser’s report [14]
The Judge’s approach to sentencing [22]
Issues on appeal [33]
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

  1. 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.

  1. 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.

  2. 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.

  3. 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. 

  4. Ms E left Mr Hamidzadeh in about June 2010.  She told Mr Hamidzadeh she was moving…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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