Hamidzadeh v R [2012] NZCA 550; [2013] 1 NZLR 369; (2012) 26 CRNZ 245 (28 November 2012)

Last Updated: 26 January 2018

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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

1. The appeal against sentence by Mr Hamidzadeh in CA625/2011 is dismissed.

2. In respect of the appeal against sentence by the Solicitor-General in CA627/2011, leave to appeal is granted and the appeal is allowed.

100. The 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

[2] 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]
[3] 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.
[4] 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.
[5] Ms E left Mr Hamidzadeh in about June 2010. She told Mr Hamidzadeh she was moving in with a female friend from university. In fact, unknown to Mr Hamidzadeh, she moved into V’s apartment in the city. V employed Ms E in his small takeaway business and introduced Mr Hamidzadeh to the owner of a small cafe at which Mr Hamidzadeh was able to obtain employment.
[6] In late September or early October 2010, Mr Hamidzadeh was invited to live at V’s apartment. At that stage, Mr Hamidzadeh did not know that Ms E was already living there. At some stage V and Ms E began a sexual relationship. Adultery is considered to be a very serious offence under the Muslim faith, punishable by death in Iran.
[7] On 24 October 2010, all three were at V’s apartment. They shared a meal together before V and Ms E went to work at V’s takeaway bar. They returned to the apartment at about 10.30 pm that evening after finishing work. Mr Hamidzadeh had left for work before they returned.
[8] Upon returning to the apartment, V and Ms E had sexual intercourse before retiring to their respective sleeping areas. V slept on a couch in the lounge while Ms E slept in a bedroom. Mr Hamidzadeh normally slept on the floor in a study.
[9] At approximately 4.07 am, Mr Hamidzadeh returned to the apartment after work. He had earlier set up a recording device to record any activity between V and Ms E while he was absent. Mr Hamidzadeh listened to the recording after returning to the apartment and heard noises consistent with them having sexual intercourse.
[10] Some time after 5 am Mr Hamidzadeh attacked V, stabbing him with two knives one in each hand. One knife had a blade measuring 28 cm and the other 20 cm. It is common ground that V was asleep when the attack commenced. V began screaming and tried to defend his life but was stabbed multiple times. A struggle ensued and V fell to the ground. He crawled into Ms E’s bedroom and collapsed near her bed. Mr Hamidzadeh and Ms E remained in the apartment for over an hour before the emergency services were contacted. The reason for that is in dispute. The Crown version of the facts is that Ms E begged her husband many times to allow her to get help for V but Mr Hamidzadeh refused to let her do so. The defence version is that Mr Hamidzadeh and Ms E discussed taking V to the hospital but Mr Hamidzadeh did not agree that they should take him themselves. Eventually they both agreed to telephone the emergency services. The Judge said neither version of the facts reflected well on Mr Hamidzadeh, but she found the delay would not have prevented V’s death.
[11] At approximately 7 am, Mr Hamidzadeh gave Ms E the two knives and she called an ambulance. On entering the apartment the police found the scene to be covered in blood. Mr Hamidzadeh was sitting quietly on the couch where V had slept. They found V’s body in the bedroom. His death was confirmed by an attending paramedic.
[12] V received 17 stab wounds to his neck, chest, arm and leg. Some of these wounds penetrated 16 cm into his body. As well, he received 42 cuts to his body. These were distinct from the stab wounds, two of which penetrated V’s lungs from the front of his chest and cut into his spine. Death was due to multiple unsurvivable stab wounds.
[13] When spoken to by the police, Mr Hamidzadeh declined to comment.

Ms Visser’s report

[14] For the purposes of sentencing, Mr Hamidzadeh’s counsel, Ms Sellars, obtained a report from a clinical psychologist, Ms Sabine Visser. During Ms Visser’s examination of Mr Hamidzadeh, he gave her an account of the events leading to V’s death. However, it was agreed for sentencing purposes that this account would be put to one side since Mr Hamidzadeh had made no statement to the police and had not given any direct evidence about the relevant events, his motivations or his state of mind at the time.
[15] Ms Visser’s report canvassed Mr Hamidzadeh’s background and personal circumstances. She recorded that Mr Hamidzadeh regarded himself as a social person with a large group of friends in Iran. However, when he and Ms E moved to New Zealand he felt isolated due to the language and cultural barrier. He had few close friends in New Zealand and most of his social interactions were with Ms E, V and a few of Ms E’s friends. He continued to have contact with his family in Iran.
[16] Mr Hamidzadeh described his marriage of nine years as “idyllic” but said difficulties had arisen after he and Ms E arrived in New Zealand. He found it difficult to adjust to life here and did not speak English. In contrast, Ms E spoke reasonable English and quickly developed a peer group. She attended university and changed her clothing style to suit New Zealand conditions. Mr Hamidzadeh disapproved of these changes and arguments ensued between them.
[17] Ms E was also interviewed by Ms Visser. She confirmed that difficulties had arisen in the relationship and the reasons for them. Her decision to separate from Mr Hamidzadeh in 2010 followed a number of arguments. Mr Hamidzadeh made several attempts to persuade Ms E to return home but when she refused and V offered to accommodate them in his apartment, Mr Hamidzadeh accepted the offer. The three lived in the apartment for approximately one month before the murder.
[18] Regarding Mr Hamidzadeh’s mental state, Ms Visser’s opinion was that Mr Hamidzadeh experienced high levels of stress as marital difficulties appeared. In her view, when Mr Hamidzadeh discovered that a physical relationship had developed between Ms E and V, Mr Hamidzadeh had lost all self-respect and, in his despair, lost control and attacked V, stabbing him to death. She recorded Mr Hamidzadeh’s comment that if these events had occurred in Iran, he would be a free man and Ms E and V would be facing death or imprisonment. Her diagnosis was that Mr Hamidzadeh was suffering from an adjustment disorder.
[19] Ms Visser summarised her opinion in the following terms:

Mr Hamidzadeh is a man from an average but traditional background in Iran. The immigration to New Zealand resulted in his disconnection from his culture and way of life. He struggled with adjusting to his new life in New Zealand which appeared to have him suffering from an Adjustment Disorder (Diagnostic and Statistical Manual of Mental Disorders–Fourth Edition). An Adjustment Disorder occurs within 3 months of the stressor (entering New Zealand as a refugee) and expresses itself in market [sic] distress that is in excess to what would be expected from exposure to the stressor and significant impairment in social and occupational functioning.

His lack of English and inability to assimilate to NZ culture intensified his feelings of disconnection and isolation leading to a strong focus on the relationship with [Ms E]. The problems in the relationship and later the loss of the relationship contributed further to Mr Hamidzadeh’s feeling of loss of control and emasculation which was further intensified by his cultural and religious believes [sic]. When the physical relationship between [V] and [Ms E] was confirmed to Mr Hamidzadeh, by his recording of what he believed to be sexual relations between them, Mr Hamidzadeh responded with a loss of control leading to the violent attack on [V] resulting in his death. Mr Hamidzadeh acknowledges the seriousness of his offence and has expressed remorse.

[20] Ms Visser was cross-examined before us on limited aspects of her report. She was asked specifically what she meant by her observation that Mr Hamidzadeh had “lost control” when stabbing V. She explained that she meant he acted without cognition (without thinking). She confirmed that an “Adjustment Disorder” is a lower level of psychological disorder classified under DSM IV as an anxiety disorder. Anxiety arises through the inability of the person to adjust to a new situation. This can lead to the subject suffering periodic bouts of depression and feeling that their life is out of control. She considered Mr Hamidzadeh’s adjustment disorder to be quite acute.
[21] When asked to reconcile her view that Mr Hamidzadeh acted without thinking, with the gap of at least an hour from the time that he heard the audio recording and when he attacked V, Ms Visser said this did not necessarily indicate that Mr Hamidzadeh had made a conscious decision. She acknowledged there was no specific evidence about what Mr Hamidzadeh did or his state of mind during this period. She also said Mr Hamidzadeh had not given an exact timeline and did not have good recall of the events.

The Judge’s approach to sentencing

[22] The Judge set out the facts as we have already related them, concluding that the sheer number of wounds to V’s body and the nature of the fatal wounds to his chest demonstrated that there had been a prolonged and frenzied attack. She noted the severe impact of V’s death upon his family and the devastation caused to Ms E.
[23] The Judge rejected a submission made on Mr Hamidzadeh’s behalf that the provocation factors were such that Mr Hamidzadeh’s culpability should be viewed as being comparable to that of a person convicted of manslaughter reduced from murder as a result of provocation. The Judge was clear that she was sentencing for murder and that any other approach would undermine the repeal of the partial defence. However, the Judge accepted that, despite the abolition of s 169, Parliament intended that provocative conduct could be considered in sentencing for murder.
[24] The provocation factors Mr Hamidzadeh relied upon for sentencing were his shock at finding out the true nature of the relationship between Ms E and V, coupled with the accumulated stress of attempting to re-establish himself in New Zealand and the loss of his marital relationship. Noting the views expressed by Ms Visser in her report, the Judge accepted that, unlike Ms E, Mr Hamidzadeh had not adjusted well to life in New Zealand.
[25] Courtney J also accepted that when Ms E had finally told him the marriage was over, he would have felt a significant blow to his self-esteem and even more disconnected and isolated from his home country. When Mr Hamidzadeh moved into V’s apartment, he did so in the belief that there were prospects of reconciliation. Whether the audio recording merely confirmed Mr Hamidzadeh’s suspicions of a relationship between Ms E and V or whether it came as a shock to Mr Hamidzadeh, this would have caused Mr Hamidzadeh real anguish and anger.
[26] Courtney J rejected a submission by Mr Hamidzadeh’s counsel that a sentence of life imprisonment would be manifestly unjust in terms of s 102 of the Sentencing Act 2002. The Judge noted that, in R v Rapira^[3] this Court concluded that s 102 would have application only in exceptional circumstances.^[4] There was, she said, a strong presumption in favour of life imprisonment for murder and the presumption had been found to have been displaced in very few cases.^[5]
[27] On this issue, the Judge found:

[22] ... Without seeking to minimise the strong feelings that drove you to attack [V], 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. ... Your particular situation, though distressing, does not reach the threshold required to displace the presumption of life imprisonment as the appropriate sentence for murder.

[28] Courtney J also found that s 104 of the Sentencing Act was engaged. The use of two weapons and the nature of the injuries inflicted left her in no doubt that the murder was committed with a high level of brutality, cruelty and callousness such as to engage s 104(1)(e). That meant the Court was obliged to impose a minimum period of imprisonment of at least 17 years unless satisfied that it would be manifestly unjust to do so.
[29] The Judge accepted that provocation factors might be taken into account when assessing whether the minimum period of imprisonment under s 104 would be manifestly unjust. She acknowledged the Crown’s submission that Mr Hamidzadeh had been separated from Ms E for some months before the murder and that she was free to start a new relationship if she chose to do so. However, the Judge observed that this did not take into account Mr Hamidzadeh’s hopes of reconciliation although she did not know how strong these were by the time of the murder. She rejected a submission by the Crown that any provocation by V through his actions in encouraging reconciliation while also commencing a relationship with Ms E was offset by his previous kindness.
[30] Courtney J concluded:

[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 Ms E 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 [V]. 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.

[31] Deciding that a minimum period of imprisonment of 17 years would be manifestly unjust, the Judge fixed a minimum period of 15 years before consideration of other mitigating factors. It is clear from the way the Judge constructed the sentence that the two year reduction related to the provocation factors she had identified.
[32] From the 15 year minimum period of imprisonment, the Judge gave Mr Hamidzadeh a further credit of 12 months to reflect his personal circumstances. These were Ms Visser’s assessment that his response might well have been stronger than it would normally have been; his remorse and previous good character; the fact that he spoke little English, had no family support in this country, and had health problems, all of which she considered, would combine to make prison life more difficult for him than usual. Finally, Courtney J allowed a further 18 months deduction for Mr Hamidzadeh’s early guilty plea to arrive at a minimum period of imprisonment of 12 years six months.

Issues on appeal

[33] The sentence imposed in the High Court has led to appeals both by Mr Hamidzadeh and the Crown. The broad issue for consideration is how provocative words or conduct might be taken into account in sentencing for murder. Advancing Mr Hamidzadeh’s appeal, Ms Sellars submitted that the sentencing Judge ought to have imposed a finite sentence of the order of 12 years imprisonment. The Judge should have taken into account the provocation arising from V’s adultery with Ms E and found under s 102 that a sentence of less than life imprisonment was appropriate. Ms Sellars submitted further that the Judge was wrong to conclude that s 104(1)(e) was engaged in the circumstances of the case. Even if that provision were engaged, the minimum period of imprisonment of 12 years six months was manifestly excessive.
[34] To the contrary, Mr Downs submitted in support of the Crown’s appeal that the sentencing Judge ought not to have allowed any deduction from the minimum period of 17 years imprisonment other than for the plea of guilty. That should have resulted in a sentence of life imprisonment with a minimum period of 15 years six months. While accepting that provocative conduct could be taken into account for sentencing purposes under ss 102 and 104 of the Sentencing Act, Mr Downs submitted that the provocation relied upon in the present case did not warrant the conclusion that a sentence of life imprisonment would be manifestly unjust under s 102, nor that it would be manifestly unjust to impose the minimum period of 17 years imprisonment under s 104. He also submitted that the Judge had erred in allowing an additional deduction for Mr Hamidzadeh’s personal circumstances.
[35] We propose to begin by addressing the issues of principle before consideration of the outcome in this case.

The background to the abolition of the partial defence of provocation

[36] In 2001 the Law Commission undertook a review of some of New Zealand’s criminal defences focussing primarily on their applicability to battered defendants. In its report,^[6] the Commission recommended repeal of the partial defence of provocation and also recommended the abolition of the mandatory life sentence for murder in favour of a sentencing discretion. The Commission concluded that partial defences generally, and provocation in particular, were not well-suited to the circumstances of battered defendants.
[37] Subsequently, the government abolished the mandatory life sentence for murder by the Sentencing Act 2002. But the partial defence of provocation under s 169 of the Crimes Act remained. Nevertheless, questions continued to be raised about its suitability and that led to a further reference to the Commission. Further research was undertaken culminating in the Commission’s report in 2007 entitled The Partial Defence of Provocation.^[7]
[38] In its 2007 report, the Commission analysed in detail the intricacies of the provocation defence as discussed in a number of appellate judgments in New Zealand, Australia and the United Kingdom. The report observed that provocation had caused considerable problems in the courts arising not only from the complexities of the defence itself but also from difficulties encountered by trial judges in attempting to direct juries in cases where provocation was raised.
[39] The Commission concluded that, in conceptual terms, the defence was “irretrievably flawed”.^[8] Amongst other things, there was an awkward distinction between subjective factors such as the special characteristics of the offender and the objective assessment of his or her capacity for ordinary self-control. And, assuming there was such a phenomenon as loss of self-control, the defence also assumed that, faced with a sufficiently grave provocation, the ordinary person would resort to homicidal violence. The Commission considered it was arguable that only the most extraordinary person would do this.
[40] More fundamentally than the legal, conceptual and practical difficulties identified, the Commission considered that the provocation defence put a premium on anger and, more particularly, on violent anger leading to homicide. In the Commission’s view, this raised the larger question of how New Zealand society wished to choose to respond to violence.^[9]
[41] The Commission rejected arguments raised against the abolition of the provocation defence including the argument that it would be fundamentally wrong in principle for the criminal law to fail to recognise, in a tangible way, a degree of culpability short of murder. The Commission was not persuaded that retaining the defence was the best mechanism to recognise reduced culpability in murder cases.
[42] After considering a range of options, the Commission recommended that:^[10]

... the partial defence of provocation should be abolished in New Zealand by repealing s 169 of the Crimes Act 1961; the defendants who would otherwise have relied upon that partial defence should be convicted of murder; and evidence of alleged provocation in the circumstances of their particular case should be weighed with other aggravating and mitigating factors as part of the sentencing exercise.

[43] The Commission’s terms of reference required it to consider whether s 102 of the Sentencing Act should be amended to address any risk of unduly harsh sentences if the partial defence were abolished. The Commission considered the approach adopted by the Supreme Court of Tasmania in Tyne v Tasmania^[11] following the abolition of the defence of provocation in that State. It was held in Tyne that provocation was to be taken into account in the exercise of the sentencing discretion for murder;^[12] and that whether a murder had been brought about or contributed to by provocation was simply a mitigating factor whose weight would depend on the circumstances.^[13]
[44] The Commission endorsed the Tyne approach but rejected the idea that a lower tariff should be introduced merely to recognise provocation. Rather, a more flexible approach was suggested:^[14]

... if provocation is repealed on the policy basis that the defendants who rely upon it are not inherently more deserving of favourable treatment than many others who are presently convicted of murder, then it would make no sense to endorse and take steps to ensure an ongoing lower tariff simply for provocation. It may be that a more flexible approach to sentencing for murder ought to be taken to allow better recognition of the wide range of mitigating factors (including provocation) that can be present in cases of intentionally killing, but that is a different issue.

[45] The Commission rejected the option of lowering the “manifestly unjust” test under s 102, observing that the present wording arguably provided room for sufficient flexibility to allow the existence of substantial mitigating factors to rebut the presumption. Any modification to s 102 “may undermine the message that life imprisonment remains the norm in cases of intentional killing”.^[15]
[46] Recognising that sentencing guidelines could assist the courts, the Commission recommended that the Sentencing Establishment Unit then proposed should draft a guideline addressing how s 102 might be approached. The Commission recommended that the guideline should cover not only the relevance of provocation under s 102 but also the range of other mitigating circumstances that might justify rebuttal of the presumption.^[16] We note that legislation establishing a Sentencing Council was passed but has not been implemented.
[47] As is well known, public concern following the much publicised Weatherston trial^[17] led to the Government introducing the Crimes (Provocation Repeal) Amendment Bill. When introducing the Bill, the then Minister of Justice observed:^[18]

The introduction of a discretionary sentence for murder ... has removed the historical rationale for provocation.

...

[Provocation] effectively provides a defence for lashing out in anger, not just any anger but violent homicidal rage. It rewards a lack of self-control by enabling an intentional killing to be categorised as something other than murder.

...

This bill does not propose that provocation is considered as an express mitigating factor at sentencing; rather, the sentencing judge will be able to use his or her discretion under section 102 of the Sentencing Act 2002 to consider whether life imprisonment would be manifestly unjust given the particular circumstances of the case. Even if the court in a particular case determines that a life sentence is justified, it will still need to take into account the existence and degree of provocation, together with all other relevant aggravating and mitigating factors in fixing the length of the minimum non-parole period to be imposed.

[48] The Bill was considered by the Justice and Electoral Committee. When reporting back to the House, the Committee recommended that the partial defence of provocation be abolished. As to the proper approach to sentencing after abolition, the Committee said:^[19]

We heard suggestions that considerations of provocation should be taken into account when a defendant is being sentenced. The bill does not propose amending the Sentencing Act 2002 to expressly allow provocation to be considered as a mitigating factor at sentence. However, we note that this would not prevent the sentencing judge from using his or her discretion under section 102 of the Sentencing Act to take into account the existence and degree of provocation-related considerations, together with any other relevant aggravating or mitigating factors, to determine whether a sentence of life imprisonment would be “manifestly unjust” for an offender convicted of murder. We acknowledge that there might be extreme instances where it would be justifiable for a sentence less than life imprisonment to be imposed by the sentencing judge.

While we consider the term “manifestly unjust” is a high threshold, we are confident that the term is flexible enough to capture appropriate cases in which provocation-related factors are present. Following the abolition of the partial defence, we would expect the courts, over time, to develop judicial guidance as to how such factors should be taken into account when determining whether a sentence of life imprisonment would be manifestly unjust for an offender convicted of murder.

[49] The Bill was enacted with the consequence that, with effect from 8 December 2009, the partial defence of provocation was abolished. No change was made to s 102 or any other provision of the Sentencing Act in consequence of that abolition.
[50] The provocation defence has also been abolished in several Australian states^[20] and has been reformed (but not abolished) in the United Kingdom.^[21] A key reason for abolishing the partial defence in Victoria was to remove its availability to dominant parties (usually men) who intentionally killed an intimate partner who was attempting to end the relationship.^[22]

The framework under the Sentencing Act

[51] The approach to sentencing in murder cases after the abolition of the partial defence of provocation must be grounded in the general purposes and principles of sentencing applicable to all offending as well as the specific legislative provisions relevant to murder.
[52] The starting point is s 7 which sets out the purposes of sentencing. Of particular relevance in sentencing for murder are the purposes of accountability, denunciation, deterrence and the protection of the community, but all the purposes are to be considered if applicable to the case. These include providing for the interests of the victim’s family and, ultimately, for the rehabilitation of the offender.
[53] The principles of sentencing under s 8 are also to be taken into account so far as they are relevant to the case. Given the specific sentencing regime for murder in ss 102–104, the s 8 principles have less relevance but one has particular importance in the present context. Section 8(a) provides that the gravity of the offending must be taken into account in the particular case, including the degree of culpability of the offender. This makes it clear that, when assessing whether a sentence should be reduced for provocative words or conduct, the broad question is whether the relevant words or conduct should be treated in all the circumstances as reducing the offender’s culpability for the offending.
[54] The aggravating and mitigating factors must also be taken into account under s 9. Again, under that section, the conduct of the victim may be treated as a mitigating factor.^[23] Any provocative words or actions on the part of the victim may be considered.
[55] Parliament clearly considered that provocation could be taken into account when deciding whether a life sentence for murder would be manifestly unjust under s 102. But as earlier noted, this Court said in Rapira that manifest injustice under s 102 was unlikely to be established other than in exceptional circumstances.^[24] The authorities were recently reviewed by this Court in R v Wihongi^[25] in which a finite sentence of 12 years imprisonment was imposed where the appellant had murdered her partner. The Court saw the case as one involving a battered defendant who had reacted in an extreme way in circumstances where both a history of abuse and her cognitive defects had played a role in her extreme reaction.^[26]
[56] The Court in Wihongi noted:^[27]

Overall, we see this as a case of a battered defendant who has reacted in an extreme way to her abuser in circumstances where both the history of abuse and the offender’s cognitive deficits have played a significant role in that extreme reaction arising. We see this as a case falling within the class of cases that Parliament contemplated would justify the displacement of the presumption. While we have some concerns about the risks which may arise in the future, we do not see those as sufficiently strong to deflect us from displacing the presumption in the circumstances of the case. We conclude, therefore, that the Judge was right when he concluded that the presumption of a life sentence was displaced in this case.

[57] The Parliamentary materials discussed in Wihongi indicate that s 102 was intended to create a strong presumption in favour of life imprisonment and that the new section might enable sentences of less than life imprisonment in cases such as mercy killings, failed suicide pacts and situations in which the accused is termed a “battered defendant”. Prior to Wihongi there had only been two cases where a sentence of less than life imprisonment had been imposed for murder.^[28]
[58] We do not discern any Parliamentary intention to diminish the high threshold necessary to establish manifest injustice under s 102. Indeed, the Law Commission specifically rejected the adoption of any lower standard in its report which led to the abolition of the provocation defence. We see no reason to depart from the general approach adopted in Rapira, recently endorsed in Wihongi, that manifest injustice under s 102 is likely to be established only in exceptional circumstances. It necessarily follows from the abolition of the defence that a conviction for murder is no longer to be treated as manslaughter where provocation is established. Sentencing for murder must therefore be approached on the footing that the killing was intentional^[29] or, where applicable, that the offender intended to inflict injury known to be likely to cause death but was reckless as to whether death ensued or not.^[30]
[59] However, since Parliament intended that provocative words or conduct could be taken into account under s 102, we accept there may be cases of an exceptional nature where the court may properly find that provocation by the victim (or possibly from other sources) was such that a sentence of life imprisonment would be manifestly unjust. The question is whether, in all the circumstances relating to the offending and to the offender, the provocation is such as to reduce his or her culpability for the offending to a level where it would be manifestly unjust to impose life imprisonment.
[60] We are reluctant to suggest any definitive list of considerations when undertaking the required assessment. Sentencing discretion within the manifestly unjust rubric must not be placed in a strait jacket. Nor, given the considerations that led to the recent reforms, do we consider it appropriate to return to the legal gymnastics required when considering how to apply the former s 169 of the Crimes Act. The Law Commission has made it clear that this approach was conceptually flawed and we see no merit in perpetuating those faults. It is no longer essential to establish that the provocative conduct would have deprived the ordinary person, with the attributes of the accused, of the power of self-control.^[31] However, we accept that loss of control may still be a factor relevant to culpability. A killing occurring due to a sudden and justified loss of self-control may, depending on the circumstances, be viewed as less culpable than one involving a calculated and controlled response.^[32]
[61] In considering other factors that may be relevant in sentencing for murder where provocation is raised, we have taken into account some of the factors that the courts have previously considered to be relevant as well as materials from Victoria^[33] and sentencing guidelines prepared by the Sentencing Guidelines Council in the United Kingdom.^[34]
[62] The approach to provocation sentencing will be very much fact-dependent. However, relevant factors may include the nature, duration and gravity of the alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender’s response; and whether the provocative conduct was such as to reduce the offender’s culpability in all the circumstances. We stress that these factors should not be treated as an exhaustive list and that a flexible approach is required. The requirement to demonstrate manifest injustice must be kept firmly in mind. Where a death has resulted, a high level of provocation will ordinarily be required to warrant the conclusion that something less than life imprisonment is permissible in terms of s 102.
[63] It is important to keep in mind that the circumstances in which provocation may be raised are capable of infinite variation and that other factors may be in play. Such was the case in Va v R^[35] where the Court of Appeal of Victoria was considering a sentence appeal by a man who had pleaded guilty to manslaughter. The evidence was not sufficient to establish self-defence but, in sentencing, it was necessary to consider not only the provocative conduct of the victim, but also the fact that the appellant had already been the subject of a violent assault and was responding to a real threat of further violence. Whether the offending occurred through fear rather than anger was considered to be a relevant factor.^[36] There may also be matters relevant to the offender such as mental or intellectual impairment or the fact that the offender has previously been the subject of physical or sexual abuse which may bear on overall culpability in the circumstances.
[64] The circumstances in which a homicidal response to sexual infidelity may be treated as reducing culpability is a difficult issue. On the one hand, it may be said that to recognise this as a relevant factor is inconsistent with the autonomy of a spouse or partner to end a relationship and commence another if they wish to do so.^[37] However, situations of this kind can give rise to highly emotional responses as Lord Judge CJ noted recently in R v Clinton^[38] (where sexual infidelity is excluded as a “qualifying trigger” for the new partial defence of “loss of control” under ss 54 and 55 of the Coroners and Justice Act 2009 (UK)):

We immediately acknowledge that the exclusion of sexual infidelity as a potential qualifying trigger is consistent with the concept of the autonomy of each individual. Of course, whatever the position may have been in times past, it is now clearly understood, and in the present context the law underlines, that no one (male or female) owns or possesses his or her spouse or partner. Nevertheless daily experience in both criminal and family courts demonstrates that the breakdown of relationships, whenever they occur, and for whatever reason, is always fraught with tension and difficulty, with the possibility of misunderstanding and the potential for apparently irrational fury. Meanwhile experience over many generations has shown that, however it may become apparent, when it does, sexual infidelity has the potential to create a highly emotional situation or to exacerbate a fraught situation, and to produce a completely unpredictable, and sometimes violent response. This may have nothing to do with any notional “rights” that the one may believe that he or she has over the other, and often stems from a sense of betrayal and heartbreak, and crushed dreams.

[65] In contrast, a much firmer view was expressed recently by the Victorian Court of Appeal in Felicite v R^[39] in which the appellant pleaded guilty to murdering Ms E in a frenzied attack with two kitchen knives. The death occurred against a background of the wife telling the appellant she wished to terminate the marriage and pursue a relationship with another man. While acknowledging that emotional stress may place great strain on the parties to a domestic relationship that may bear upon culpability when this leads to a spontaneous act,^[40] Redlich JA said:^[41]

The taking of a domestic partner’s life undermines the foundations of personal relationships and family trust upon which our society rests. The sentence must reflect both the sanctity of human life and societies’ abhorrence of violence towards vulnerable and trusting partners who could legitimately have expected the offender to be the protector, not the perpetrator of violent abuse. An outburst of homicidal rage in such contexts is totally unacceptable. The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course. Accordingly the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress.

[66] We acknowledge the strong community concerns following the Weatherston trial in which a young woman was killed in a frenzied knife attack by her former boyfriend. The views expressed in Felicite are consistent with that concern. The legislature has responded by abolishing the partial defence of provocation as a ground for reducing murder to manslaughter. In consequence, the legislature has made it clear that a deliberate or reckless homicide is to be treated as murder even if committed in circumstances where provocation might formerly have provided a partial defence. At the same time, Parliament has accepted that provocative words or conduct may be taken into account as a mitigating factor in sentencing for murder.
[67] A high degree of provocation will be required in all murder cases before manifest injustice may be demonstrated to warrant a sentence of less than life imprisonment under s 102. In cases of domestic violence resulting in death, the Court will no doubt have regard to the prevalence of domestic violence and the need for deterrence, especially where the victims are vulnerable, a factor having relevance both in terms of s 9(1)(g) and s 104(1)(g) of the Sentencing Act.
[68] The Court will also no doubt take into account that while an angry and emotional response to the end of a relationship may be understandable, the ordinary expectation of the community is that this ought not to justify the use of violence, especially where there are fatal consequences.

The relevance of s 104

[69] There is one further important consideration. The approach to s 102 will be influenced by the sentencing judge’s conclusion as to whether s 104 applies. Where one or more of the factors identified in s 104(1) is engaged, a minimum period of imprisonment of 17 years must be imposed unless it would be manifestly unjust to do so. In R v Williams,^[42] this Court considered the approach to be adopted to sentencing under that section. It was held that the specified minimum period may not be departed from lightly since effect must be given to the legislative policy of ensuring a 17 year minimum term for the most serious murder cases.^[43] The Court said:^[44]

We conclude that a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare. As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing discounts based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.

[70] Where one or more of the factors in s 104(1) applies, it is less likely that the manifestly unjust threshold will be reached under s 102. That is because Parliament has made it clear that s 104 is intended to apply to the most serious types of murders with a presumption of a lengthy minimum period of imprisonment. It would not be consistent with that regime to depart lightly from the presumption of the 17 year minimum term of imprisonment under s 104, still less to depart from the presumption of life imprisonment under s 102.

Summary of the approach to murder sentences where provocation is raised

[71] The abolition of the partial defence of provocation has the consequence that culpable homicides are to be treated as murder and offenders are to be sentenced accordingly. In appropriate circumstances, provocative words or conduct may be taken into account in mitigation of sentence to the extent they bear upon culpability. It is no longer necessary or appropriate to approach this task by reference to the tests applied under the former s 169 of the Crimes Act. Loss of control need not be demonstrated but may still be a relevant factor. Other relevant considerations may include those set out in [62]–[68] above, but these are not intended to be exhaustive. Flexibility of approach in the particular circumstances of the case is essential.
[72] The purpose and principles in ss 7 and 8 of the Sentencing Act must be applied to the extent relevant to the case. So too, the aggravating and mitigating factors in ss 9 and 10. But the specific sentencing regime for murder cases under ss 102–104 must be applied and will usually be the critical factors in the sentencing process. Provocation will not be such as to warrant a sentence of less than life imprisonment under s 102 on the grounds of manifest injustice other than in exceptional circumstances.
[73] Where one or more of the factors in s 104(1) are found to apply, it is most unlikely that manifest injustice can be established for the purposes of s 102. But, in appropriate circumstances, provocation may be considered in determining whether it would be manifestly unjust to impose a sentence of at least 17 years imprisonment. Such cases will ordinarily be exceptional but need not be rare. The factors to be considered may include those identified in [62]–[68] above.
[74] We have not considered the role of provocation in relation to offences other than murder, but we do not presently see any reason to treat provocation for other offences in any different way from that in which provocation is currently considered in such cases.

This case

[75] Ms Sellars submitted that the concept of provocation had long had a role in the common law. It was, she said, a recognition of human frailty and should be recognised where appropriate in mitigation of sentence as a factor decreasing culpability. She submitted that, notwithstanding the repeal of the partial defence, there was a clear difference in culpability between the offender who lashes out in a frenzy of passion and impulsivity, and a cold-blooded killer.
[76] Ms Sellars submitted that Mr Hamidzadeh’s discovery of Ms E’s adultery deprived him of his self-control and led to the frenzied attack on V. It was appropriate for the Court to take into account the difficulties Mr Hamidzadeh was experiencing in adjusting to life in New Zealand and his cultural background in which it would have been legally permissible for him to have killed both Ms E and V in these circumstances. The Court ought also to have considered the extraordinary feature that all three involved were living in a small one bedroom apartment and that V had attempted to conceal his relationship with Ms E by inviting them to live with him in the apartment.
[77] Mr Hamidzadeh had moved into V’s apartment believing there might be a prospect of a reconciliation with Ms E. The nature of the sexual relationship between Ms E and V had been concealed from him. The discovery of their activities when he listened to the audio tape was equivalent, Ms Sellars submitted, to Mr Hamidzadeh witnessing the two having intercourse.
[78] Mr Downs submitted that Parliament must be taken to have rejected the proposition that reasonable people kill when they are provoked. Similarly, Parliament must, he said, be taken to have rejected the related idea, readily identifiable in the common law, that men can be induced to kill their partners or former partners through a loss of self-control attributable to the actions of the deceased. He pointed to what he described as “the long roll call” of cases in which a loss of self-control was said to explain homicidal violence against women in the context of relationships or failed relationships.^[45]
[79] Counsel for the Crown submitted that, upon the termination of the relationship between Mr Hamidzadeh and Ms E, she was free to see whomever she chose. Many men (and women) hope for a reconciliation when a relationship ends but, he submitted, very few react with homicidal anger when this does not come to pass. Although Mr Hamidzadeh’s serious upset when he learned of Ms E’s adultery might explain his actions, they did not diminish them. Mr Downs submitted that Mr Hamidzadeh’s decision to attack V with knives while the latter slept implied a distinct presence of mind. That suggested a deliberate element with a high level of culpability.
[80] Other aggravating features included the sustained horrific attack involving weapons and the use of those weapons on a defenceless victim. In the circumstances, it was not open to the Judge to reduce the minimum term based on provocation. The offending represented a clear example of a murder governed by s 104 through its level of brutality and callousness. The victim’s conduct did not give rise to any manifest injustice in the imposition of the minimum 17 year term.

Conclusions

[81] We acknowledge that Mr Hamidzadeh was deeply upset by the discovery of Ms E’s infidelity. His distress would have been exacerbated by his difficulties in adjusting to life in a country with a very different culture from his own, his isolation from family and friends, his hopes for a reconciliation with Ms E, and his sense of betrayal by Ms E and V, whom he regarded as a friend. But the end of a serious relationship is not an uncommon event and could not have justified Mr Hamidzadeh’s extreme reaction.
[82] We have no doubt that the High Court Judge was right to conclude that s 104(1)(e) of the Sentencing Act was engaged. To attack a sleeping victim by stabbing him to death with multiple blows using two knives clearly involved a high level of brutality, cruelty and callousness.^[46] The frenzied nature of the attack did not somehow make Mr Hamidzadeh less culpable or render the attack less brutal. It was a deliberate murder and Mr Hamidzadeh had to be sentenced as such.
[83] While it is no longer a determinative factor, there is no evidence to support the submission that Mr Hamidzadeh lost self-control. He did not give any evidence himself that he had lost self-control, nor did he give evidence as to his state of mind at the time. If provocation is to be relied upon as a mitigating factor, it will usually be necessary for a proper evidential foundation to be laid.
[84] While the Court may readily infer what motivated Mr Hamidzadeh to act, it would be speculative to conclude that he acted unthinkingly as Ms Visser suggested. The gap of one hour between the discovery of the infidelity and Mr Hamidzadeh’s attack on V was not explained. Assumptions that he may have considered his actions to be justified under Iranian law also lack any evidential foundation. It was not suggested Mr Hamidzadeh did not understand that his actions constituted an offence under New Zealand law. Even if he did not understand the legal requirements in this country, that would not amount to a mitigating factor. The adjustment order identified by Ms Visser does not signify any serious mental impairment and there is no evidence to suggest it had any causative effect in connection with the attack on the victim.
[85] The Judge correctly concluded that it would not be manifestly unjust to impose a sentence of life imprisonment under s 102. However, we are satisfied she erred in concluding that the alleged provocative conduct made it manifestly unjust to impose the minimum period of 17 years under s 104. We do not view the circumstances of this case as exceptional in the sense described in Williams. While one may be sympathetic to Mr Hamidzadeh’s plight, his extremely violent and brutal response could not render it manifestly unjust in the circumstances to reduce the 17 year minimum Parliament has required to be imposed for the most serious murders. It follows that the two year reduction allowed by the Judge for provocation factors cannot be sustained.
[86] We have also concluded that the reduction of one year from the 17 year minimum for personal factors was not appropriate. As this Court observed in Williams, the presence of mitigating factors under s 9(2) relating to the personal circumstances of an offender would rarely displace the statutory presumption under s 104.^[47]
[87] The personal circumstances referred to by the Judge in this context were the kinds of factors often encountered in sentencing for a wide variety of offences. They were Mr Hamidzadeh’s remorse; his previous good character; the fact that he could speak little English and had no family support in this country; and his health issues. In the latter respect, the pre-sentence report indicated that Mr Hamidzadeh was suffering from high blood pressure for which he had been prescribed medication. Mr Hamidzadeh reported that he suffered from a kidney complaint but otherwise was in reasonable health.
[88] While these factors may have justified some modest reduction in sentence in cases not involving s 104, we do not regard any of them singly or collectively as warranting any reduction on the grounds of manifest injustice in the context of s 104.
[89] Ms Sellars did not suggest that any greater discount than 18 months was required for Mr Hamidzadeh’s guilty plea and Mr Downs accepted that the reduction in that respect was appropriate. We agree. As this Court observed in Williams,^[48] the discount required for a guilty plea under s 104 may often be less than in an ordinary case where the statute establishes no presumption that a sentence would be at a particular level.^[49]
[90] One final point. Although not raised by Mr Downs, we note that the High Court Judge did not adopt the two-stage process recommended by this Court in Williams when sentencing in cases where s 104 applies.^[50] It was not suggested that this led the Judge into error but we simply observe that the two-stage process can be a useful approach in sentencing in s 104 cases.

Result

[91] In the circumstances, the appropriate sentence should have been life imprisonment with a minimum period of imprisonment of 15 years six months.
[92] Mr Hamidzadeh’s appeal in CA625/2011 is dismissed. In respect of the appeal by the Solicitor-General in CA627/2011, leave to appeal is granted and the appeal is allowed.
[93] The sentence of life imprisonment is confirmed but the minimum period of imprisonment of 12 years six months is quashed with a minimum period of imprisonment of 15 years six months substituted.

Solicitors:
Crown Law Office, Wellington for Crown

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^[1] By the Crimes (Provocation Repeal) Amendment Act 2009.
^[2] R v Hamidzadeh HC Auckland CRI-2010-004-19352, 25 August 2011.
^[3] R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794 (CA).
^[4] At [121].

^[5] Citing R v Law (2002) 19 CRNZ 500 (HC); R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011; and R v Wihongi HC Napier CRI-2009-041-2096, 30 August 2010 which was under appeal at the time. This Court subsequently allowed the appeal by substituting a longer finite term of imprisonment but short of life imprisonment: R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775.

^[6] Law Commission of New Zealand Some Criminal Defences with Particular Reference to Battered Defendants (NZLC R73, 2001).

^[7] Law Commission of New Zealand The Partial Defence of Provocation (NZLC R98, 2007).
^[8] As outlined in Chapter 3 of the report at [78] et seq.
^[9] At 11.
^[10] At 13.
^[11] Tyne v Tasmania [2005] TASSC 119, (2005) 15 Tas R 221.
^[12] Per Underwood CJ at [18]–[20].
^[13] Per Blow J at [26].
^[14] At [196].
^[15] At [200].
^[16] At [209].
^[17] Considered by this Court in Weatherston v R [2011] NZCA 276.
^[18] (18 August 2009) 656 NZPD 5646.

^[19] Crimes: (Provocation Repeal) Amendment Bill 2009 (64–2) (select committee report) at 2.

^[20] For a useful background on these reforms, see Arie Freiberg and Felicity Stewart “Beyond the partial excuse: Australasian approaches to provocation as a sentencing factor” in Julian V Roberts (ed) Mitigation and Aggravation at Sentencing (Cambridge University Press, Cambridge, 2011).

^[21] Section 3 of the Homicide Act 1957 (UK) has been replaced by a new partial defence to murder described as “loss of control” as defined in ss 54 and 55 of the Coroners and Justice Act 2009 (UK).

^[22] Victorian Law Reform Commission Defences to Homicide: Final Report, Melbourne, 2004 at 29–30.
^[23] Sentencing Act 2002, s 9(2)(c).
^[24] R v Rapira, above n 3.
^[25] R v Wihongi, above n 5.
^[26] At [94].
^[27] At [94].

^[28] R v Law, above n 5; and R v Reid, above n 5.
^[29] Crimes Act 1961, s 167(a).
^[30] Crimes Act 1961, s 167(b).
^[31] Tyne v Tasmania, above n 11.

^[32] See the observations in Warren Brookbanks “Partial Defences to Murder in New Zealand” in Alan Reed and Michael Bohlander (eds) Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Ashgate, Surrey, England, 2011).

^[33] Felicity Stewart and Arie Freiberg Provocation in Sentencing: Research Report (2nd ed, Sentencing Advisory Council, Melbourne, 2009) (prepared for the Sentencing Advisory Council of Victoria).

^[34] Manslaughter by Reason of Provocation (Sentencing Guidelines Council, London, 2005) (issued under s 170(9) of the Criminal Justice Act 2003 (UK)). Although these relate to sentencing in manslaughter cases, they provide some useful general guidance.
^[35] Va v R [2011] VSCA 426.
^[36] At [36].
^[37] See the material referred to at n 22 above.
^[38] R v Clinton [2012] EWCA Crim 2, [2012] 3 WLR 515 at [16].
^[39] Felicite v R [2011] VSCA 274.
^[40] At [19] (with Harper JA and Robson AJA agreeing).
^[41] At [20] (footnotes omitted).
^[42] R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA).
^[43] At [66].
^[44] At [67].

^[45] Citing the recent examples of Hieatt v R [2011] NZCA 637; Weatherston v R, above n 17; Rajamani v R [2009] NZCA 225; and R v Federici CA394/04, 16 June 2005.

^[46] Although not raised, s 104(1)(g) could also have been relied upon by the Crown given that the victim was asleep at the time and was therefore particularly vulnerable to attack.

^[47] R v Williams, above n 42. See also R v Parrish [2003] NZCA 290; (2003) 21 CRNZ 571 (CA) at [31].
^[48] R v Williams, above n 42, at [73].

^[49] See also R v McSweeney [2007] NZCA 147; R v Green CA461/04, 2 June 2005; and R v Uluakiola CA123/06, 6 December 2006.
^[50] R v Williams, above n 42, at [52]–[54].