Dawood v R

• Jurisdiction: New Zealand
• Judge: Goddard J
• Judgment Date: 20 August 2013
• Neutral Citation: [2013] NZCA 381
• Docket Number: CA109/2013
• Court: Court of Appeal
• Date: 20 August 2013

Between

Najeeb Dawood Dawood

Appellant

and

The Queen

Respondent

[2013] NZCA 381

Court:

White, Goddard, Simon France JJ

CA109/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against imposition of 17 year minimum term of imprisonment on ground that starting point of 19 years' imprisonment was two high — appellant argued inadequate credit was given to his personal circumstances and guilty plea — appellant pleaded guilty to murder of wife by stabbing her 55 times — history of threats and violence towards his wife prompted by depression and abnormal jealousy over imagined infidelity — Judge found significant features showing gravity of offence were the planning and detail over time; and the very high level of brutality and callousness involved — Judge only allowed 10 percent for guilty plea and 5 percent for personal mitigating factors of depression, abnormal jealousy and cultural dislocation — whether there was an element of double counting of the aggravating factors and too little allowance made for the mitigating factors as a result of an erroneous sentencing approach — whether the Judge erred by according too little or too great a weight to the aggravating and mitigating factors, and failed to have regard to comparable cases.

Counsel:

C J Tennet for Appellant

K A L Bicknell for Respondent

A The appeal against sentence is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Goddard J)

Introduction

1 The appellant pleaded guilty to the murder of his wife after stabbing her 55 times with a knife on 2 September 2011, and was sentenced to life imprisonment by Miller J on 8 February 2013, with a minimum term of imprisonment of 17 years. 1

2 The murder was the culmination of a history of threats and violence by the appellant towards his wife, prompted by depression and abnormal jealousy over her imagined infidelity. The history of violence included threats to harm the couple's

children and an assault on their youngest daughter in 2010, when she was aged 13 years. Three separate charges arose from that 2010 incident, for which Miller J sentenced the appellant to concurrent sentences of nine months' imprisonment. In addition, the appellant was sentenced to a concurrent sentence of four years' imprisonment for the aggravated wounding of his eldest daughter on the day that he murdered his wife

3 The appeal against sentence is directed to the 17 year minimum term imposed by Miller J, on the ground that the starting point of 19 years was too high, resulting in a manifestly excessive or inappropriate sentence, and inadequate credit being given for the appellant's personal circumstances and his plea of guilty. Alternatively, it is argued that Miller J failed to follow the two step process advocated in R v Williams, 2 and to correctly apply the approach in Hessell v R, 3 resulting in a loss of appropriate credits for the appellant. A further argument was that the 17 year term was manifestly unjust under s 104 of the Sentencing Act 2002 (the Act) and that a minimum term of imprisonment of 14 years would have been appropriate in all the circumstances.

Background facts

4 The night before the murder the appellant went to a shed at the rear of the family property, which served as his private office. There he accessed voice recordings he had been making of his wife's telephone calls and saved these onto his computer, placing them into a structured series of folders under her name. He then typed a letter to his eldest son, in which he spoke of defacing his wife and committing suicide.

5 The next morning the appellant lured his wife to the shed, locked the door and forced her to sit in a chair. He then tied her arms to the chair with masking tape, took a large kitchen knife and began stabbing her. When their eldest daughter heard her mother's screams she desperately tried to get into the shed to rescue her mother and was herself attacked by the appellant and stabbed. Having repelled his daughter, the appellant continued the attack on his wife on the floor of the shed after she

begged him not to let the children see what he was doing. In all, she sustained some 55 stab wounds to her face, neck, chest, back, arm and hands. Five of those wounds entered her chest cavity

6 Once the appellant was satisfied his wife was dead he dropped the knife and stood on her body to reach a rope tied to the rafters, from which he then tried to hang himself. He was resuscitated after his children called 111.

7 Eight months later the appellant pleaded guilty to his wife's murder.

The sentence

8 Having set out his assessment of the facts, Miller J turned to construct the sentence. The first question was whether the crime fell into a category for which a 17-year minimum would normally be required under s 104 of the Act, unless that sentence would be manifestly unjust. In making his initial assessment, Miller J had regard first to the gravity of the appellant's offending, of which two features stood out: the planning in detail over time; and the very high level of brutality and callousness involved. Of these features the Judge said:

[30] … the crime … was planned in detail over a significant period of time, with the weapon and restraints arranged, the music and telephone recordings prepared, the suicide letter written and the rope prepared. You carefully manipulated [your wife] to get her into the shed, beginning with breakfast that morning. I do not think it matters that you may have decided to kill rather than maim at the last minute.

[31] … the crime was characterised by a very high level of brutality and callousness. Particular features of that were the use of the chair and restraints coupled with the music and recorded calls, all lending an element of ritual to the killing, her near-complete helplessness once restrained, the presence of the children, and the number and severity of the stab wounds, some of which were inflicted as she lay making no attempt to defend herself.

9 The Judge found the appellant's culpability was significantly worsened by the attack on his eldest daughter during the course of the same incident. Further aggravating features were a history of violence and control by the appellant over his family; that the murder was committed at the family home; and the very severe effect on the children who were also victims of the offending. These combined factors left the Judge in no doubt that, even after taking the mitigating factors of depression and abnormal jealousy into account, the case fell within the 17 year category provided for in s 104 of the Act.

10 The next step undertaken by the Judge was to decide what an appropriate minimum period ought to be. After considering a number of comparable cases, which the Judge referenced in his sentencing notes, and having regard to the significant aggravating features present, the Judge adopted a starting point of 19 years' imprisonment.

11 The Judge then considered what mitigating factors there were. He found the most significant was the guilty plea, entered eight months after the appellant was charged with murder. A discount of 10 per cent was allowed for the guilty plea, notwithstanding conviction had been inevitable. The Judge accepted the appellant was now remorseful but noted he continued to blame the victim.

12 The Judge then considered the appellant's personal mitigating factors, namely his depression and his abnormal jealousy. The Judge treated these as features of the appellant's personality, which he had little capacity to change. He noted the appellant's depression was of recent origin and followed his refusal to take opportunities that had been offered to him in New Zealand and a lack of willingness to adapt to a different culture. The Judge found overall that these personal factors did not reduce the appellant's culpability by very much. He applied a five per cent discount, including a very limited allowance for cultural dislocation. The Judge further noted that although the appellant's English was poor there was no evidence that he would find a sentence of imprisonment unduly harsh.

13 No allowance for good character was sought or given.

14 Added together, the allowances made for the mitigating factors reduced the starting point of 19 years to a nominal end sentence of 16 years and three months. This calculation, which was rounded, took into account the 10 per cent discount for the appellant's guilty plea as the last step in the sentencing exercise, in accordance with the approach in Hessell v R.

15 The Judge then came to the final question: whether a minimum term of 17 years' imprisonment would be manifestly unjust in all the circumstances of the appellant's case. Having regard to the number and gravity of the qualifying factors, and in particular the brutality, callousness and degree of premeditation involved, the Judge found himself unable to accept that a minimum term of 17 years would be manifestly unjust. Although the Crown had accepted that a minimum period of less than 17 years would be justified, on account of the appellant's guilty...