An Iranian-born Auckland man who murdered his wife's new partner after bugging their apartment and listening to them having sex has had his jail term increased to a 15-and-a-half year minimum.
Mohammed Hamid-Zadeh pleaded guilty in August 2011 to murdering his friend Farasad Razani by stabbing him 59 times.
He was jailed for life with a minimum non-parole period of 12-and-a-half years after Justice Patricia Courtney ruled that despite the brutality of the attack - which would normally require a 17-year-minimum - Hamid-Zadeh was affected by having just listened to his wife have sex with the victim.
She took a 15-year starting point and from there reduced the sentence to 12-and-a-half years for personal factors and his early guilty plea.
Hamid-Zadeh's wife moved in with Razani after she separated from her husband.
They hid their relationship from Hamid Zadeh and asked him to move in into their one-bedroom apartment with them to show that nothing was amiss.
He did so but he left a recording device in the apartment while he was at work.
One night in September 2010, Hamid-Zadeh came home to the apartment and listened on his recorder to the pair having sex.
An hour later, with knives in each hand, he stabbed Razani 59 times and then waited an hour before calling emergency services.
Both Crown and defence appealed the sentence with the defence saying life in prison was manifestly unjust because of the decreased culpability due to provocation.
The Crown said the judge was too lenient and should have enacted the 17-year-minimum brutality clause.
The lengthy Court of Appeal judgement released yesterday is likely be cited for years to come as it deals with the issue of provocation.
Government abolished the partial defence of provocation in the wake of the Sophie Elliot murder trial where the public was horrified by murder-accused Clayton Weatherston trying to argue that he had been provoked into killing the young Otago student.
Provocation is still allowed to be taken into account in sentencing, however.
Defence lawyer Belinda Sellars argued that the concept of provocation was long-standing and was "a recognition of human frailty".
"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."
Crown lawyer Matthew Downs submitted that "Parliament must be taken to have rejected the proposition that reasonable people kill when they are provoked".
"Many men (and women) hope for a reconciliation when a relationship ends but...very few react with homicidal anger when this does not come to pass.
"Although Mr Hamid-Zadeh's serious upset when he learned of Ms E's adultery might explain his actions, they did not diminish them."
The Court of Appeal agreed and said the end of a relationship "could not have justified Mr Hamid-Zadeh's extreme reaction".
The Court said the judge was right to engage the 17-year-minimum clause but she was wrong to have reduced the sentence for provocation.
"The frenzied nature of the attack did not somehow make Mr Hamid-Zadeh less culpable or render the attack less brutal. It was a deliberate murder and Mr Hamid-Zadeh had to be sentenced as such."
The court ruled the judge should have used 17 years as her starting point and only allowed the 18-month discount for his guilty plea.
The new sentence substituted was life imprisonment with a minimum non-parole period of 15 years, six months.
- Auckland Now