An Auckland man who beat his wife with a hammer was allowed to walk free. Photo / 123rf
An Auckland man who beat his wife with a hammer was allowed to walk free. Photo / 123rf
High Court judge rules a discharge without conviction for husband's hammer attack on wife was 'plainly wrong'.
An Auckland man who beat his wife with a hammer because she complained they weren't holding hands while watching a movie together was allowed to walk free from court.
Judge Philippa Cunningham ruled the consequences of convictions for Yasir Mohib, who pleaded guilty to three violence charges, were out of proportion to the gravity of the offending and discharged him without conviction.
She placed particular importance on the possibility the 31-year-old, who has three New Zealand-born children, might be deported to Pakistan despite the legal principle that a sentencing judge should not usurp the role of Immigration authorities.
But her decision was later overturned by the High Court and labelled "plainly wrong" - the third time Judge Cunningham has granted a discharge without conviction and been successfully appealed.
In his judgment on Mohib, Justice Edwin Wylie said the district court judge failed to correctly identify the seriousness of the attack.
He had doubts about Mohib's insight into the offending and said the victim's retraction of her initial statement to police was a "rather disturbing factor in the domestic violence context".
"The assault was vicious and premeditated. Mr Mohib has denied full responsibility and he has sought to shift the blame to the victim and her family," said Justice Wylie.
"In my view, the Judge failed to fully appreciate the gravity of the offending and she placed excessive weight on the immigration consequences."
The High Court judge earlier ruled Judge Cunningham made an error in the law by usurping the function of immigration authorities.
"This was not a case where convictions would necessarily lead to deportation...Parliament has entrusted the immigration authorities with the obligation to consider whether persons convicted of offending ought to be allowed to remain in New Zealand.
"Finally, the [Solicitor-General] argued that the Judge's decision to discharge without conviction was plainly wrong," said Justice Wylie.
"For the reasons I have set out, I agree."
He convicted Mohib and sent the matter back to the Auckland District Court for sentencing.
It's the third time Judge Cunningham has been over-ruled after granting a discharge without conviction.
In 2011, a well-known comedian who pleaded guilty to performing an indecent act on his daughter was allowed to walk free because he stopped drinking, paid a high price in terms of his career - and "makes people laugh''.
Then in 2014, Judge Cunningham did not convict the son of the Maori King on charges of burglary, theft and drink driving after it was argued the teenager needed to be "whiter than the dove" to succeed to the throne.
Korotangi Paki was given a discharge without conviction by Judge Cunningham. The decision was later overturned.
Korotangi Te Hokinga Mai Douglas Paki was later convicted of drink driving after an appeal to the High Court which identified four errors in law.
"I am not satisfied from the affidavit evidence that a conviction for drink driving will prevent him from forever succeeding if he is otherwise considered a suitable candidate for the role," said Justice Woolford in reversing Judge Cunningham's decision.
Dr Bill Hodge, an expert in criminal law at the University of Auckland, said a decision maker like a judge feels the "sting" of being reversed on appeal by a higher court.
"It is tempting to say that a judge should be especially careful in an area of the law where he or she has been subject to appellate criticism, or the remarks of a higher court judge who finds the decision in question to be defective in some significant legal essence," said Dr Hodge.
However, he pointed out that while Judge Cunningham had been successfully appealed on the same legal issue three times, the facts of each case were totally different.
"In each case, I guess, the learned judge saw that - for totally different reasons - the consequences of a conviction would be out of all proportion to the gravity of the offence," said Dr Hodge.
"The good thing is that judges are held to account by the appellate process."
Judge Cunningham declined to comment on constitutional grounds.
"Judgments speak for themselves and must stand without further clarification or explanation," a spokesperson from the Office of the Chief District Court Judge said in a statement.
"The appeal process is the constitutional and legislative check in terms of testing the robustness of judicial process."
An advocate for family violence victims, Shine executive director Jane Drumm, said Justice Wylie's judgment was "extremely important" to reinforce the consequences of violent behaviour.
"We have a shocking record of violence and a line in the sand had to be drawn."
She made a comparison between the Mohib case and Losi Filipo, the teenage rugby player who assaulted four people but was discharged without conviction because of the potential impact on his career.
The police will now appeal the decision to grant Losi Filipo a discharge without conviction.
"People who choose violence need to know, without doubt, there will be negative consequences," said Ms Drumm.
"We have to have no excuses for violence. And when it comes to consequences, we need to have no excuses...'my job, immigration problems, our children'...these are just more excuses."
The other woman left the room and Mohib slapped the victim in the face, then punched her multiple times in the head.
He told her: "We'll finish this after the movie, don't say a word".
After the movie ended, Mohib grabbed a hammer and told the victim: "This is for you".
He hit her multiple times with blows to the arms and legs.
She begged for her life and Mohib stopped the attack. She suffered at least 5 bruises to her right thigh, a large bruise to her right arm and further bruises to her face and head.
In September 2015, Mohib pleaded guilty to charges of common assault, assault with a weapon and threatening behaviour.
He apologised to his wife at a restorative justice conference and she wanted to reunite the family.
They then attended religious counselling at a local mosque. The victim said she was under pressure from her family and gave a false statement to police.
In a pre-sentence interview, Mohib denied using a hammer and blamed the victim's parents for his frustration, which led to the attack.
He applied for discharge without conviction on basis that the attack was "spontaneous and out of character".
Mohib's work visa was cancelled and he was declined a visitor visa, so he was in New Zealand illegally, and he might be deported. His family - who are all NZ citizens - would then struggle financially.
Police opposed the discharges without conviction, on the grounds the offending was serious and it was not certain Mohib would be deported.
In April 2016, Judge Cunningham granted the discharge without conviction. She noted there were no broken bones and Mohib stopped when the victim pleaded with him. The guilty pleas, restorative justice and counselling reduced the seriousness of the offending, in her ruling.
She noted obvious immigration consequences and the desperate need for Mohib to work again because of dire financial circumstances.
The Solicitor-General appealed the decision on the grounds Judge Cunningham erred by usurping the role of immigration authorities, the offending was serious and the discharge without conviction was "plainly wrong".
August 2016, High Court Justice Edwin Wylie overturns decision.
If you're in danger NOW:
• Phone the police on 111 or ask neighbours of friends to ring for you • Run outside and head for where there are other people • Scream for help so that your neighbours can hear you • Take the children with you • Don't stop to get anything else • If you are being abused, remember it's not your fault. Violence is never okay
Where to go for help or more information:
• Women's Refuge: Free national crisisline operates 24/7 - 0800 REFUGE or 0800 733 843 www.womensrefuge.org.nz • Shine, free national helpline 9am- 11pm every day - 0508 744 633 www.2shine.org.nz • It's Not Ok: Information line 0800 456 450 www.areyouok.org.nz • Shakti: Providing specialist cultural services for African, Asian and Middle Eastern women and their children. Crisisline 24/7 0800 742 584 • Ministry of Justice: www.justice.govt.nz/family-justice/domestic-violence • National Network of Stopping Violence: www.nnsvs.org.nz • White Ribbon: Aiming to eliminate men's violence towards women, focusing this year on sexual violence and the issue of consent. www.whiteribbon.org.nz
