Note Hamidzadeh v The Queen

[2013] NZSC 33

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1. NOTE Hamidzadeh v R

1. Supreme Court of New Zealand    Wellington    SC101/2012;  [2013] NZSC 33

   16 April 2013

   Elias CJ, William Young and Chambers JJ

Criminal law – Sentence – Murder – Provocation – Sentencing Act 2002, ss 102

1. and 104.

Application

Mohammad Hamidzadeh applied to the Supreme Court for leave to appeal from the judgment of the Court of Appeal [2012] NZCA 550, [2013] 1 NZLR 369.

JUDGMENT OF THE COURT. [1] The applicant pleaded guilty

1. to murder.  He was sentenced  to life imprisonment  and the sentencing  Judge imposed a minimum period of imprisonment (MPI) of 12 and half years.1  Both the applicant and the Solicitor-General  appealed to the Court of Appeal – the applicant against the life term and the Solicitor-General  against the length of

   the  MPI.  The  applicant’s  appeal  was  dismissed  but  the  Solicitor-General’s

2. appeal was allowed with the Court of Appeal imposing an MPI of 15 and half years.2  The applicant now seeks leave to appeal.

   [2]      The victim had been having an affair with the applicant’s estranged wife and  the  murder  occurred  after  this  was  discovered  by  the  applicant.  The defendant  stabbed  the  victim  while  he  was  asleep  using  two  knives  and

3. inflicting 17 stab wounds. He also inflicted a further 42 wounds. The victim initially survived this attack. He sought assistance  from the applicant’s  wife. Emergency assistance was not summoned for over an hour, a delay which, as the Court of Appeal pointed out, did not reflect well on the applicant.

   [3]      The  applicant  and  his  wife  are  refugees  from  Iran  who  arrived  in

4. New  Zealand in 2009. The victim was also an Iranian refugee. It seems that the applicant  did  not  adjust  to  New  Zealand  life  as  well  as  his  wife.  He  was isolated, had suffered an adjustment disorder as a result of the separation and was  angered  to  learn  that  his  wife  and  the  victim  were  having  an  affair, something he discovered by the use of a listening device which he had placed

5. in the apartment in which he, his wife and the victim were staying. There was a high level of deliberation in what followed and the Court of Appeal concluded that there was no evidence that he had lost self-control before the murder.

   [4]      The case thus involved a number of factors, some aggravating and some actually or arguably mitigating. The applicant’s murderous assault on the victim

6. was extremely violent and brutal, the victim was entirely vulnerable (because he  was  asleep),  there  had  been  some  deliberation  and  the  conduct  of  the

1      R v Hamidzadeh HC Auckland CRI-2010-004-19352, 25 August 2011.

2 Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369.

applicant in the aftermath of the assault (while the victim was still alive) was unmeritorious.  On  the  other  hand,  the  applicant  was  plainly  at  a  low  ebb emotionally and distressed and angered by the discovery that his wife and the victim were having an affair. As well he pleaded  guilty. In addressing  these considerations, the courts below had to operate within the framework provided    5 by the Sentencing Act 2002 in ss  102 (as to the limited circumstances when a finite sentence  may be imposed  for murder)  and 104 (as to the fixing of an MPI).

1. Given the circumstances associated with the murder, the Court of Appeal

saw no scope under s 102 for departing from a life sentence and concluded that    10 the case warranted  the 17-year  MPI specified by s 104 for the most serious murders. To this extent the approach of the Court of Appeal matched that of the sentencing Judge. Indeed given the circumstances of the case and the terms of

s 104, these conclusions were practically inevitable. But, parting company with

the sentencing Judge, the Court of Appeal considered that it had not been open    15 to  her  to  depart   as  substantially   as  she  had   from   the  17-year   period contemplated  by  s 104.  It  saw  a more  modest  reduction,  of  18  months,  as appropriate  to allow for, and necessitated  by, the plea of guilty. The primary difference  between  the  Court  of Appeal  and  the  sentencing  Judge  was  in relation  to what,  if any,  allowance  should  be  made  for the  applicant’s  low         20 emotional ebb and his claim of provocation.

1. Despite the way in which the applicant’s submissions  are couched, we see no scope for substantial dispute about the way in which the Court of Appeal analysed the law relating to sentencing for murder as it now stands following

the repeal of the defence of provocation. In particular, that Court acknowledged    25 that provocation  could be a factor in assessing culpability and therefore as to whether a life sentence is manifestly unjust and as to the imposition of an MPI.

In substance  the applicant’s  complaint  is to the application  by the Court  of

Appeal of its analysis of the law to the facts of the case.

1. In the circumstances  of the case as a whole and allowing for the terms     30 of ss  102 and 104, it was open to the Court of Appeal to conclude  that the mitigatory effect of the conduct of the deceased was of limited moment. We see

no appearance  of a miscarriage  of justice and no point of general  or public importance as would warrant a second appeal.

1. The application for leave to appeal should be dismissed.   35

Appeal dismissed.