R v Hamidzadeh HC Auckland CRI-2010-004-019352

[2011] NZHC 1382

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-019352

THE QUEEN

v

MOHAMMAD HAMIDZADEH

Appearances: A J F Perkins for Crown

B L Sellars for Prisoner

Judgment:      25 August 2011 at 10:00 AM

SENTENCING NOTES OF COURTNEY J

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – A Perkins

Counsel:             B L Sellars, P O Box 2674 Shortland Street, Auckland 1140

Fax: [phone]

R V HAMIDZADEH HC AK CRI-2010-004-019352 25 August 2011

Introduction

[1]      Mohammad  Hamidzadeh,  you  appear  for  sentence  today  having  pleaded guilty to the murder of Farasad Razani.  The offending, which I will discuss in more detail shortly, occurred when you and your former wife were living in the same apartment as Mr Razani and your discovery that they had begun an intimate relationship.  It involved a violent and sustained attack on Mr Razani.

[2]      The main objective in sentencing in this case is to hold you accountable for the harm that you have done, to denounce and deter your conduct and deter others from similar offending.   I am required to follow the principles set out in the Sentencing Act 2002, including taking into account the gravity of the offending, your culpability,  the seriousness of the offence  and  the desirability of consistency in sentencing between this and other cases.

[3]      Before I discuss the circumstances of Mr Razani’s murder, I am going to explain the approach I have taken to fixing the sentence in this case.  I am guided in my approach by previous cases decided by the Court of Appeal, particularly R v Williams[1] and R v Clifford.[2]

[1] R v Williams [2005] 2 NZLR 506 (CA).

[2] R v Clifford [2011] NZCA 360.

[4]      Under s 102 of the Sentencing Act I am required to impose a sentence of life imprisonment on you unless such a sentence would be manifestly unjust.   Your lawyer has submitted to me that a life sentence would be manifestly unjust in this case because of factors amounting to provocation that arise from  your personal circumstances and from your wife’s relationship with Mr Razani.  So the first thing I will consider is whether the usual term of imprisonment for life should be imposed.

[5]      If a sentence of life imprisonment would not be manifestly unjust then I must impose a minimum period of imprisonment of at least ten years.  In determining the appropriate minimum period of imprisonment I must consider s 104 which requires that in certain specified circumstances a minimum period of imprisonment of at least

17  years  will  be imposed unless  it  would  be  manifestly unjust  to  do  so.    The

circumstances that trigger s 104 include murder that is committed with a high degree of brutality or callousness.  The Crown asserts that your offending falls within s 104, but your lawyer has submitted that the circumstances of this case do not come within s 104 and even if they did it would be manifestly unjust to impose a minimum period at that level because of the provocation factors.  So that will be the second issue that I consider.

[6]      After that, I will consider the mitigating factors that you lawyer has raised and the effect that your guilty plea should have on the final sentence.

The offending

[7]      I turn now to discuss the circumstances of the offending.  It is impossible to understand this offence without describing the background of you and your ex-wife and Mr Razani.  All three of you are Iranian but came to New Zealand separately. Mr Razani arrived in New Zealand in 2008 and eventually obtained refugee status. He bought a share in a business and ultimately owned that business outright.   He lived in an apartment in central Auckland.  He was 30 years old when he died.

[8]      You and your wife came to New Zealand in 2009 and also obtained refugee status.   During your initial time here you lived at the Manukau Refugee Centre where Mr Razani was a visitor and a friendship began between the three of you. Once you and your wife had work permits, you both moved into an apartment in Queen  Street  in Auckland.    It  is  evident  that  you  and  your  wife  had  different responses to your new life in New Zealand.  Your wife was more fluent in English and settled well into New Zealand life, adopting Western-style clothes and attending university.   Your experience was  not  as  positive.   You  speak  little English  and seemed to have difficulty accepting the differences between life in Iran and New Zealand.  You had a wide group of friends in Iran but few in New Zealand.  Within a few months of moving into your apartment your wife decided to end your marriage.

[9]      Although  you  did  not  know  it  at  the  time,  your  wife  had  moved  into Mr Razani’s apartment.  She began working in his business.  It is not at all clear to me what the relationship between them was at that stage, whether it was friendship

or something more, and it is not clear exactly when the intimate relationship between them began.   In any event, you maintained a friendship with Mr Razani and he introduced you to a restaurant owner who gave you employment and continued to be your friend.  In late September or early October 2010 you moved into Mr Razani’s apartment at his invitation.  It seems that he was offering to help you and your wife reconcile.  The apparent sleeping arrangements were that your wife would occupy the only bedroom, you slept on the floor in the study area and Mr Razani slept in the lounge on the floor or the couch.

[10]     It  seems  that  within  a  short  time  though,  you  become  suspicious  of

Mr Razani and your wife.  The nature of the suspicions are not clear.  On Sunday, 24

October 2010 Mr Razani and your wife were at work most of the day and did not return home until late in the evening.  By that time you had already gone to your job which started at 5 pm.  Before you went to work you set a recording device up in the apartment, presumably to confirm whatever suspicions you had about what was happening between Mr Razani and your wife.  When you returned to the apartment shortly after 4 am on Monday, 25 October, your wife was asleep in the bedroom and Mr Razani asleep on the couch in the lounge.   You listened to the recording and concluded that there was a sexual relationship between your wife and Mr Razani. Sometime after 5 am you took two knives, one with a 20 centimetre blade and the other a 28 centimetre blade.  With a knife in each hand you then began a frenzied attack on the sleeping Mr Razani.   Mr Razani began screaming and attempted to defend himself.  Your wife was woken and came into the lounge to witness part of this attack.  Mr Razani eventually fell onto the floor and crawled into the bedroom, collapsing by the bed.

[11]     Emergency services were not called until 7 am that morning.  The reason for this is the subject of dispute.  Your wife maintains that she begged you to let her get help and you would not allow it.  You maintain that the two of you discussed taking Mr Razani to hospital but you did not agree that he should be taken by you and eventually you both agreed to call emergency services.   I have to say that neither version reflects well on you but Mr Razani’s injuries were unsurvivable, and even if emergency services had been called earlier, the outcome would have been the same.

[12]     The injuries that you inflicted were numerous and some of them very severe. There were 17 stab wounds to Mr Razani’s neck, chest, arm and leg.  Two wounds were particularly bad.   These penetrated Mr Razani’s lungs from the front of his chest and went all the way through into his spine.   In addition to these 17 stab wounds there were 42 further incised wounds or cuts. A number of these were on the chest and torso but most were inflicted on Mr Razani’s hands and arms, being typical defensive wounds.

[13]     It is evident from the sheer number of wounds to Mr Razani’s body, and the nature of the fatal wounds to his chest, that this was a prolonged and frenzied attack. The use of two weapons and the nature of the injuries inflicted leave me in no doubt that this murder was committed with a high level of brutality, cruelty and callousness and would fall within s 104(e).

[14]     Mr Razani’s death has had a great impact on his family.  In a victim impact statement his mother has described the terrible sense of loss she and  her other children feel at his death.  It is obvious that Mr Razani’s decision to come to New Zealand was difficult for his mother to accept and she was looking forward to the time when she would see him again.  It is difficult for her to accept that this will not now happen.  In addition, Mr Razani had been assisting his family financially and that money was being used to help educate his sister.

[15]     Likewise, your former wife has been devastated by the murder.  She clearly held strong feelings for Mr Razani and had to witness the most appalling scene as you  continued to  attack  him in that  frenzy with two knives.   She has  suffered depression, has had difficulty eating and sleeping and cannot presently envisage having another relationship.

Manifestly unjust to impose life imprisonment under s 102?

[16]     I turn then from the facts of the offending to consider whether, because of the provocation factors in this case, it would be manifestly unjust to impose any term of imprisonment.  In essence, Ms Sellars has submitted that the provocation factors are such that I should view your culpability as comparable to a person convicted of

manslaughter reduced from murder as a result of provocation.  I do not accept that that is the correct approach.  I am sentencing for murder and any approach that might suggest treating the offence as though it really were one of manslaughter would undermine the repeal of the the partial defence of provocation.[3]     However, I do accept that it was Parliament’s intention to allow those factors to be considered in sentencing.[4]     Determining whether a sentence of life imprisonment would be manifestly unjust under s 102 seems to me to be an appropriate point at which to take those factors to account, though not necessarily the only point.

[3] Crimes (Provocation Repeal) Amendment Act 2009.

[4] Gempton v R [2011] NZCA 349.

[17]    Ms Sellars has sought to persuade me that the factors she identifies as provocative  would  make  life  imprisonment  manifestly  unjust  in  this  case  and displace the presumption under s 102 in favour of life imprisonment.  As the Court of Appeal has previously observed, the injustice that is required to satisfy the test under s 102 must be clear and a conclusion that life imprisonment for murder would

be manifestly unjust is likely to be reached only in exceptional cases.[5]    There is a

strong presumption in favour of life imprisonment for murder.  There have been very few cases decided in the last decade in which the presumption has been found to have been displaced.   They have involved a mercy killing in strongly mitigatory circumstances   and   cases   in   which   the   offender   has   suffered   some   mental impairment.[6]

[5] R v Rapira [2003] 3 NZLR 794 at [121].

[6] R v Law (2002) 19 CRNZ 500; R v Reid HC Auckland CRI-2008-090-2203, 3 February 2011; R v Wihongi HC Napier CRI-2009-041-002096, 30 August 2010 (currently under appeal).

[18]     The provocation factors that you rely on can be summed up as being your shock at finding out the true nature of the relationship between Mr Razani and your wife, coupled with the accumulated stress of attempting to re-establish yourself in New Zealand and losing your marital relationship.  I have had the benefit of a report from Ms Vizsser, the clinical psychologist.   She has concluded that, as a result of your unsuccessful struggle to adjust to life in New Zealand, you were, at the time of the murder, likely to be suffering from an Adjustment Disorder which would have

expressed itself in distress greater than what normally would have been expected.

[19]     Ms Visser’s  conclusions are based on  your personal background and  the circumstances of your life in New Zealand.  You are now aged 32 and spent your early childhood in Tehran and your teenage years in a smaller town outside Tehran. You had a stable childhood and a close and supportive family. Your mother and your siblings still live in Iran and support you.  Your father died some years ago and you were  depressed  following  that  but  recovered.     You  did  not  achieve  much academically at school but by the time you left Iran you had had employment and owned  a  small  business.    Those  who  know  you  and  have  provided  references describe  you  as  being  quiet,  sensitive,  kind  and  for  whom  violence  is  out  of character.

[20]     You were married for about nine years.   The quality of that marriage is difficult to assess.  You appear to have been happy but clearly your wife was not.  It seems these differences intensified when you came to New Zealand.  The fact that your wife adjusted well was a major barrier to you.   You have described to the psychologist your disapproval of the way your wife behaved with things like her clothing style and the arguments that resulted.   I accept that when your wife did finally tell you that the marriage was over you would have felt a significant blow to your self-esteem and even more disconnected and isolated in this foreign country.

[21]     I also accept that when you made the decision to move into Mr Razani’s apartment you did so in the belief that there were prospects of reconciliation.  I do not, however, know how matters stood at the time of the murder.  The fact that you were not sharing your wife’s bedroom suggests that the prospects of reconciliation had not come to pass.   Whether hearing the recording merely confirmed your suspicions of a relationship between Mr Razani and your wife or whether it came as a shock to you, I accept it would have caused real anguish and anger.

[22]     The question is whether these circumstances would make the sentence that is presumed to be the appropriate one for murder manifestly unjust.  Without seeking to minimise the strong feelings that drove you to attack Mr Razani, I am not satisfied that your personal circumstances do reach the threshold required to displace the presumption in favour of life imprisonment under s 102.   The fact that you were finding adjustment to life in New Zealand difficult and lonely and that in your

culture extra-marital relationships are regarded more seriously than in western societies is not sufficient.  This Court frequently deals with homicides and assaults by men who cannot accept that their former wives have begun a new relationship. This feeling of affront seems to be a fairly universal response. Sadly, many who respond violently to this situation are, for reasons different from your, dislocated and isolated but, nevertheless, have the same feelings.  Your particular situation, though distressing, does not reach the threshold required to displace the presumption of life imprisonment as the appropriate sentence for murder.

Minimum period of imprisonment under s 104?

[23]     That  being  so,  I  turn  now  to  consider  what  the  minimum  period  of imprisonment should be.  I have already referred to my conclusion that the requisite degree of brutality and callousness that brings this offence within s 104 is satisfied and I must therefore impose a minimum period of 17 years unless it would be manifestly  unjust  to  do  so.    It  would  only  be  manifestly  unjust  to  do  so  if  I considered that this case fell outside the scope of the legislative policy that murders

with the specified features are sufficiently serious to justify at least that term.[7]   I

accept that the s 104 assessment is another point at which a sentencing Judge might take into account provocation factors.[8]

[7] R v Williams at [67].

[8] See e.g. R v Tamatea HC PN CRI 2007-054-3683 24 October 2008.

[24]     I  have  already  outlined  the  factors  that  you  rely  on  as  provocation. Mr Perkins, for the Crown, has submitted that you were not provoked in a way that would make the minimum period manifestly unjust.   I acknowledge the Crown’s submissions that you had been separated from your wife for some months before the murder and she was free to start a new relationship if she chose.  While true, that does not take account of your hopes of reconciliation, though I do not know how strong those prospects were by the time of the murder.

[25]     Nor do I accept the Crown’s submission that any provocation by Mr Razani through  his  actions  in  encouraging  reconciliation  while  also  commencing  a

relationship with your wife were offset by his previous kindness.  Clearly, Mr Razani

had shown kindness and assistance to you in a time of need.  But the situation that existed  on  the day of the murder means  that  those aspects  are not  particularly significant.

[26]     On the one hand, I am confronted with a brutal and callous murder which, in the normal course, would attract a minimum period of imprisonment of 17 years. The reason for the attack is not uncommon; an estranged husband finds his wife has commenced a new relationship.  On the other hand, you were lonely and isolated and appear not to have had a strong relationship with anyone in New Zealand other than your wife or Mr Razani.   You had experienced the emotional upset of your wife leaving you and when there appeared to be prospects of reconciliation, were confronted in the early hours of the morning with the fact that your friend and your wife had started a relationship while you were all living together in the same small apartment.

[27]   In the end, I have reached the conclusion that a minimum period of imprisonment of 17 years would be manifestly unjust.  I consider that a minimum period of 15 years would be the appropriate minimum period.

Mitigating factors

[28]     There are, however, factors that I need to consider further which do lower that minimum period of imprisonment.  I accept Ms Vizsser’s assessment that your response may well have been stronger than it should normally have been.  I accept your lawyer’s submission that there should be some recognition of your remorse and your previous good character.  I am conscious also that you speak little English, have no family support here and have health problems, all of which will combine to make prison life more difficult for you than it would usually be.  I allow one year for these factors.

Guilty plea

[29]     Finally, you are also entitled to a further reduction to reflect the fact that you entered a guilty plea for this offence.  You indicated at an early stage that you would

do so and it has saved the cost of the trial and spared your former wife the trauma of giving  evidence  in  court.     On  the  other  hand,  the  case  against   you  was overwhelming.  Having regard to discounts allowed in other similar cases I allow a further reduction of 18 months to reach a minimum period of imprisonment of 12-

and-a-half years. That is the period of time that you will serve.  Stand down.

P Courtney J