IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-085-4286 [2013] NZHC 122

THE QUEEN

v

NAJEEB DAWOOD

Hearing:	8 February 2013

Counsel:	T Gilbert for Crown
I M Antunovic for Prisoner
Interpreter present

Sentencing:	8 February 2013

SENTENCING NOTES OF MILLER J

[1]    Mr Dawood, you appear today for sentence for the murder of your wife, Eman Hurmiz, on 2 September 2011.  The law requires that I must pass a sentence of life imprisonment and fix a minimum period which you must serve before becoming eligible for parole.

[2]    You are also for sentence for the aggravated wounding of your older daughter

Abeer on the same day and three charges arising from an earlier incident on 16

November 2010.   They are threatening to kill Eman, assaulting your younger daughter, who was then aged 13, and possession of a knife in circumstances showing an intent to use it to commit a crime of violence.  For all of these crimes you will
receive concurrent sentences meaning that you serve them at the same time.

R v DAWOOD HC WN CRI-2011-085-4286 [8 February 2013]

[3]    You pleaded guilty to the murder and wounding charges on 23 April 2012, the date of your first appearance in this Court, and you admitted the remaining charges on 14 May.   You have since been remanded in custody for a long time while psychiatric assessments were carried out.  There are now four expert reports.  They address the question whether I should make some allowance, and if so how much, for your mental health at the time of the killing and your difficulties in coming to terms with life in New Zealand.

[4]    Before discussing that evidence I will outline the facts.

[5]    You identify as a Christian Arab of Chaldean ethnicity, and you were born in a rural area near the northern Iraqi city of Fallujah.  You married Eman in Iraq in 1987 and there are four children of the marriage.   They were aged between 23 and 14 when you killed your wife.

[6]    You used violence to  control  your  wife  from  the very beginning  of  your marriage.   Sometimes it was inflicted in the presence of the children or involved them in some way.   It had its origins in your unreasonable belief that Eman was unfaithful to you.  You were pathologically suspicious of her and rigidly insistent on what you believe is the right of a husband in Iraqi culture to control the behaviour of his wife and children, by force if he thinks fit.  I will note two historic incidents in particular.   In 1996 or 1997 you stabbed Eman in the arm with a knife, in the presence of your eldest daughter.  In 2001 you punched Eman in the head four times, claiming that each punch represented one of the children.

[7]    Sometime before 2008 you and your family fled Iraq for Syria.   For some reason which has never been reliably explained the family later separated and you returned to Iraq for a time.

[8]    Eman and the children entered New Zealand as refugees in September 2008. They settled in Strathmore and assimilated well into the local Assyrian community. Eman gained employment, developed friendships, and regularly attended church.

[9]    In January 2010 you came to New Zealand, also as a refugee.  Your wife and children supported your application.  Eman was plainly loyal to you, and she hoped your relationship would work here.  She was aware that other Iraqi men who have settled in Western countries have adapted to local norms.  She misjudged you.  From the  outset  you  struggled  with  the  personal  autonomy  afforded  women  in  New Zealand society.  You continued to maintain that you could do as you wished as a husband, and on occasion you would assault Eman for the sole purpose of asserting this right.

[10]  You also took steps to control her dealings with other people.  Soon after you arrived she stopped going to activities organised by the Assyrian community and became unhappy and introverted.   You often accused her of having relationships with other men and called her a prostitute.  You would often follow her when she undertook daily activities such as shopping for groceries, and would challenge her should she speak to any male.  You would keep track of the distance she travelled in her car and ring her when she was absent to determine her location.   I should emphasise that there is no reason to think there is any substance in your accusations of infidelity. They were a product not of her behaviour but of your obsession.

[11]  Eman did not share your view that you were merely exercising a husband’s rights.   From time to time she threatened to leave you, pointing out that in this community she was free to do so.  You sometimes responded by assaulting one of the children or threatening to harm them should she leave.  Notably, in October 2010 you dragged Eman through the kitchen by her hair in the presence of your youngest daughter.   You carried a kitchen knife and threatened to kill her.   That incident seems to have led to Eman leaving the home on 21 October with your daughters. Two days later you forced her to return home by threatening to harm your son, who had remained with you.

[12]  On 16 November 2010 you assaulted your younger daughter for refusing to show you what she was checking on her Facebook account.  That is the subject of the charge of assaulting a child.  You damaged the computer.  The girl went to her mother and sought comfort.  You abused Eman, accusing her of having an affair, and confiscated her passport.  When she went to leave the house with her car keys you

followed her, demanded the keys, and disabled her vehicle.  You also took a kitchen knife and threatened to kill her;  that is the subject of another of the charges.  The police were called.  You have explained in interview that it came as a shock to you to realise that the police would intervene in a domestic matter.

[13]  In June 2011 Eman and the daughters travelled to Syria, where Abeer was to be married.  You and your son had to remain in New Zealand for financial reasons. That was humiliating for you.  Before Eman left she told you that she was thinking of leaving you when she returned from Syria.

[14]  After her return on 17 August 2011 your obsessive monitoring intensified. You  have  some  computer  skills,  and  you  used  them  to  install  software  and equipment which would allow you to record Eman’s conversations on your home telephone.   You made 10 recordings of her phone conversations, which you then saved to your computer.  It appears that in one of them Eman may have spoken of leaving you and going to live in Australia.

[15] On the night of Thursday, 1 September you approached Eman, who was preparing to sleep in the lounge, and asked her to come to bed with you.  For some months she had refused to share your bed.  When she refused on this occasion you said “okay, you’re not coming to sleep with me, tomorrow it’s all finished”.  You then went to a shed at the rear of the property which you treated as your private office.  There you accessed the voice recordings that you had saved on the computer and then re-saved them, at approximately 2.01 am.  You also saved a letter to your son explaining what  you were about to do, justifying  yourself,  and seeking his forgiveness.  In that letter you accused Eman of infidelity and psychological warfare, by which you meant her threats to leave, her lies about what her activities and those of the girls, her expressions of disdain for you, and her decision to deny you what you saw as your “conjugal rights”.  It appears from the letter that you intended to kill yourself after you had “defaced” Eman, but that you did not intend at that time to kill her.   You later explained that by defacing her you meant mutilating her face, her nose, her ears and her genitalia.

[16]  On  the  morning  of  2  September  you  made  breakfast  for  Eman  and  your daughter, an extremely unusual act for you.  At about 11.00 am you asked her to go to the shed with you for a discussion.  When the two of you entered the shed you locked the door behind you and forced her to sit in a chair.  You then showed her the letter that you had written to your son and played the telephone recordings on the computer.  At about 11.29 am you opened an Arabic music video on You-Tube and set it to play.  You then used masking tape to secure her left wrist to the arm of the chair;  you were unable to secure her other hand because she struggled.  You took a large kitchen knife that you had earlier placed in the shed and began stabbing her. She was able to free herself from the chair, but she could not get out of the room.

[17]  Hearing  her  mother’s  screams,  Abeer  tried  to  enter  the  shed  through  the window, but you stabbed at her with the knife, cutting her left calf below her knee, and she was forced to retreat.   That action is the subject of the wounding charge. Your son went to the shed and saw you through the window stabbing his mother in the chest and head.  Remarkably, Eman had the presence of mind to beg you not to let the children see what you were doing.  You pushed her down onto the concrete floor, where you continued the attack.  All she could do to protect herself was to curl into the foetal position.

[18]  At approximately 11.34 am your son called 111.

[19]  Evidently having satisfied yourself that Eman was dead, you dropped the knife and sought to hang yourself from a rope that you had earlier set up over the rafters of the shed.  To reach the rope you stood on Eman’s body.  You were unconscious by the time that your neighbours forced their way into the shed and cut you down.

[20]  Eman died at the scene.   The postmortem examination established that she suffered approximately 55 stab wounds or incised wounds to her face, neck, chest, back, upper right arm and hand, and left hand.   Some of these were defensive wounds.  Five of them entered the chest cavity.

[21]  When interviewed on 4 September 2011 you accounted for the crime by saying that Eman had said she wanted to leave and move to Australia.   You claim to remember nothing else about the killing.

[22]  There are nine victim impact statements.   Four are from your children.   I acknowledge their presence in Court today.   Two are from volunteers who helped the family settle here, and the remainder are from family friends.   It is clear that Eman was a much loved mother and friend, and her death has seriously affected the children.   Eman kept the family together, and they miss her greatly.   They still experience a high degree of distress, fear and anger, all of which affects their relationships with one another and with people outside the family.   They have of course lost two parents, because none of them will find it easy to resume any sort of relationship with you.  Your son does ask me to bear in mind that you are a good person with mental problems.    Your daughters are less forgiving, very understandably.  They suffer feelings of guilt because of your habit of blaming them for your perceived need to discipline them and Eman.

[23]  I turn to the four expert reports, some of which include helpful summaries of your background.  The authors are, in chronological order of their reports, Dr Norris, Dr Majeed, whom I note is Iraqi, Dr Barry-Walsh and Professor Brinded.  I record at the outset that there was to be a disputed facts hearing earlier this week but that was abandoned after a conference with counsel.   The experts agree that you were not insane.  They also agree that you were suffering major depression which had been present for at least six weeks and perhaps six months.   The only real point of difference among them is whether you suffer from jealousy of a type and degree sufficient to qualify as a “delusional disorder”, which is a mental illness, or are merely morbidly jealous.   I indicated that the sentence would not be materially affected by the characterisation of your admittedly pathological jealousy as a mental illness or not.

[24]  I have mentioned some of your background, and I will now expand on that. You are aged 52.  You were one of 11 children born to a poor family.  Your parents’ arranged marriage was unhappy and seems to have been characterised by domestic violence.  Your father died when you were 14.  You have always presented as angry,

rigid and fanatical in matters of family honour, and highly suspicious of women. Your younger sisters report that you would beat them for any minor infraction.  After leaving school you gained work as a labourer before spending perhaps 11 years in the army during a period which included the Iran-Iraq war.  You report observing atrocities as a soldier, but there is no suggestion that post traumatic stress disorder is a factor here.

[25]  Eman was your cousin.   Apparently because of that relationship the family opposed the marriage, but you insisted.  I have mentioned that you used violence to control her from the beginning.  Soon after the marriage you also began accusing her of infidelity.   Two of your siblings have been interviewed.   They report that your concern for your wife’s virtue, as you saw it, exceeded any norm in Iraqi culture. They describe you as “sick”.

[26]  Once in New Zealand you did not have much contact with the local Assyrian community, although one of your brothers is also here.  I have mentioned that Eman worked but your poor English made it difficult for you to get employment.   You were no longer the breadwinner.  You did find some work as a cleaner but you seem to have given it up because you wanted to monitor your wife.  You were aware that in  New  Zealand she had  the option  of leaving  you,  and  that  caused  you  great concern.  You say that you felt unable to control your wife and daughters with force but you had no other tools to control them.

[27]  In the six months preceding the killing you were depressed and increasingly fearful that Eman would leave you.  She was asserting herself in the relationship, and you felt marginalised in the family.  For example, you say that the women would fall silent when you entered a room and Eman would not serve you coffee if a guest arrived.  As I have said, the experts agree that you experienced a major depressive episode which seems to have gone untreated, although there are references in the papers to medication which you refused to take.  You were tearful and suicidal.  I note that you seem to have responded to medication since being imprisoned.  As to the crime itself, you cannot explain why you did not go through with your plan to mutilate Eman but allow her to live.   Even now you continue to excuse yourself,

claiming that she was unfaithful and put you under intolerable stress, disrespecting and humiliating you.

[28]  In summary, the reports confirm that you adhere to a rigid belief system in which the male is the head of the household and entitled to exercise control over the family.  That belief system is cultural in origin, but you have carried it to abnormal levels.   Whether your jealousy amounted to a delusional disorder or not, it was certainly  extreme  and  obsessive.     In  New  Zealand  your  belief  system  was challenged, and you experienced cultural dislocation.  As you realised that you were losing control of the family you began to experience major depression.

[29]  I will now turn to construct the sentence.   The first question is whether the crime falls into a category for which a 17-year minimum must normally be imposed unless that sentence would be manifestly unjust.

[30]  Two features of the crime stand out.  The first is that it 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 Eman 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 second is that the crime was characterised by a very high level of brutality and callousness.   Particular features of that are 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.

[32]  Your culpability is significantly worsened by the attack on your older daughter as part of the same incident and also by the history of violence and controlling behaviour against the whole family, of which the remaining three offences are really illustrations.  You were willing to exploit the children to control your wife’s every interaction with others and deny her right to leave an abusive relationship.   The

killing happened in the home, a place where your family were entitled to feel safe, and the surviving victims have been severely affected.

[33]  Even after taking the mitigating factors into account,1 I have no doubt that this murder falls into the 17-year minimum category.2

[34]  The next step is to decide what the minimum period ought to be.   I have considered a number of comparable cases which I will list in my sentencing notes.3
Having regard to the aggravating features I have identified, I will adopt a starting point of 19 years imprisonment.

[35]  I turn to mitigating factors.  There are a number.  The most significant is the guilty plea, which was entered some eight months after arrest.   The weight to be given to the plea in this setting is a question of judgment.4    A guilty plea does not always earn a large discount, even when entered early, because the law envisages that  departures  from  the statutory minimum  will  happen  only in  cases  of clear injustice.  In this case the plea is an admission of responsibility, but conviction was also inevitable.   In the circumstances I would allow 10 per cent for the pleas.   I accept that you feel remorse but as I have noted you continue to blame Eman for
causing you to act as you did.

[36]  The next two mitigating factors are personal to you.5    Mr Antunovic placed great  emphasis  on  them,  quite  understandably.    They  are  your  mental  illness, meaning your depression, and your abnormal jealousy, which I will treat for present purposes as a feature of your personality that you have little capacity to change.  The rationale for making an allowance is that these matters may somewhat reduce your culpability.  In my opinion they do, but not by much.  You chose to come to New Zealand early in 2010, and you knew that you had entered a different culture, one in which you could not behave as you were accustomed to do in Iraq.   It was your
responsibility  to  adapt,  seeking  help  as  necessary  from  your  community,  your

1	R v Williams at [2005] 2 NZLR 506 (CA) at [52].
2	See in particular Hamidzadeh v R [2012] NZCA 550.
3	Hamidzadeh v R [2012] NZCA 550;  R v Uluakiol CA123/06, 6 December 2006;  R v Zhou HC Auckland CRI-2005-92-10395, 13 October 2006;  R v Rajamani HC Auckland CRI-2005-004-
1002, 28 March 2006; R v Duff HC Wellington CRI-2008-091-98, 3 October 2008.
4	R v Williams [2005] 2 NZLR 506 (CA) at [72]-[73]. Compare R v E [2010] NZCA 13.
5	R v Williams [2005] 2 NZLR 506 (CA) at [66].

brother, the resettlement advisors, and medical professionals.   All of those people were accessible to you.   Eman herself supported you, and while she was insistent that you must change she gave you plenty of opportunity to adjust.  Your depression was of recent origin.  It followed your refusal to take the opportunities afforded you. As to the crime itself, you unquestionably appreciated the seriousness of what you were  doing,  and  you  had  not  lost  control  of  yourself.    This  is  not  a  case  of
provocation.6   I accept that mental illness can justify a substantial deduction but not

in this case and in this legal setting.  I would make an allowance of just five per cent for these matters.

[37]  The issue of cultural  dislocation  is  a difficult one.    Some cases  make an allowance for it,7  while others prefer the view that it merely supplies context and cannot be used to excuse a grave violation of a victim’s rights under New Zealand law.8    I am disposed to accept that some allowance can be made, but in this case it would be very limited for the reasons I have already given, and in any event it has already been adequately allowed in the recognition for mental illness.  Your English is still poor but there is no evidence that you will find imprisonment unusually harsh.

[38]  I have not been asked to make an allowance for previous good character and given your history of violence against the family I would not be prepared to do so.

[39]  As a matter of mathematics, these mitigating factors would reduce the starting point of 19 years to 16 years and three months.9

[40]  That brings me to the final question, whether a minimum period of less than 17 years would be manifestly unjust in this case.  I observe that the Crown accepts that it would be.  Crown counsel recommends a minimum period of 15 and a half years,
primarily because of the guilty pleas.10

6           Compare Hamidzadeh v R [2012] NZCA 550 in which there was an element of provocation, in which there was an element of provocation.
7	R v Alinizi CA280/97, 25 November 1997.
8	For example, R v Abdulhussein HC Wellington T2416/99, 7 April 2000.
9           This calculation, which is rounded, takes the guilty plea discount as the last step, following the usual methodology.
10         The Crown relied on Hamidzadeh v R [2012] NZCA 550, a very recent decision of the Court of Appeal on somewhat similar facts, but in that case there was no real planning of the actual killing, and a degree of provocation.  It was also relevantly a Crown appeal in which the Crown accepted that a discount should be given for the guilty plea.

[41]  I have paid close attention to the submissions of counsel, but I find myself unable to accept them.  Circumstances justifying a minimum period of less than 17 years need not be rare, but they must be exceptional.   The assessment is one of overall impression;  it must reflect the number and gravity of the qualifying factors that attracted the 17-year minimum in the first place.   There are two such factors here, and they are present at a high level of gravity.   There is also a question of degree, which can be posed in this way:  at what point does a difference between the
17-year  minimum  and  the  sentence  that  I  would  otherwise  impose  become manifestly  or  clearly  unjust?    I  think  the  difference  must  be  significant,  when assessed in the context of what must inevitably be a very long sentence.

[42]  When I stand back and look at the case overall, I am unable to accept that a minimum of 17 years is manifestly unjust for this unusually calculated and brutal crime.  This is not to overlook the mitigating factors.  But for them the appropriate minimum would be 19 years.

[43]  Mr  Dawood  would  you  please  stand.    Your  sentence  for  the  murder  of Eman Hurmiz is life imprisonment with a minimum period of 17 years.  You will serve concurrent sentences as follows:  four years imprisonment on the aggravated wounding and nine months imprisonment on each of the other charges.

[44]  You were previously given a first warning under the three strikes law.  I will not repeat that warning now, but I should explain that the first one contained a clerical error.11   You will be given another copy when you have left the Court.

[45]  Stand down.

Miller J

Solicitors:
Crown Solicitor’s Office, Wellington for Crown

11	It relied upon all of the offences, but the warning strictly applies only to two of them.