Discharge without conviction ‘plainly wrong’

A discharge without conviction for an attack with a hammer has been overturned by the High Court.

I recall this this case get any attention when the offender was discharged, in stark contrast to last week’s media and social media uproar over the discharge of a young rugby player.

NZ Herald: Hammer assault: Discharge decision overturned

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”.

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.”

If Mohib is deported that is a serious consequence of his actions.

But I think the Court has to signal that a pre-meditated attack with a hammer will have serious 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.

This is consistent with the recent case of Nikolas Delegat, who had asked for a discharge without conviction in part due to the impact a conviction would have on a profession he wanted to apply to join (I think it was something like Financial Adviser). In that case the judge ruled that a conviction would not rule out being accepted into the profession and that the organisation considering applications needed to know Delegat’s history in order to make a properly considered decision.

This is the third time Judge Cunningham has granted a discharge without conviction and been successfully appealed.

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 Te Hokinga Mai Douglas Paki was later convicted of drink driving after an appeal to the High Court which identified four errors in law.

Perhaps District Court judges need to be given better guidance on when it is reasonable to discharge without conviction.

Serious assaults, especially with weapons like hammers and footwear, should have consequences for the thugs.

In May 2015, Mohib and his two wives were at home watching a movie. The victim asked Mohib why he was holding the other wife’s hand, but not hers.

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”.

This sounds like a brutal assault.

The victim was in a very difficult situation. She feared for her life, but afterwards would also have feared for her future, relying financially on her husband. There is also the complicated family situation – if the husband was deported the wide would either have to allow the family to be split, or go with him and risk serious repercussions, possible involving more violence.

I think New Zealand courts, and our society as a whole, needs to do a lot more to make it clear that family violence is unacceptable and shouldn’t remain an insidious  part of Kiwi culture.

I hope that a part of our immigrant includes making it clear that violence was unacceptable, illegal and if perpetrated then serious consequences were likely. If not they should,

More difficult is getting this message across to people who already live here.

I think in this hammer attack case the discharge without conviction was plainly wrong. As is and any sort of family violence. Homes should be loving and caring environments.

36 Comments

  1. Alan Wilkinson

     /  3rd October 2016

    Will his family have residency if he is deported? Immigration need to have some clear and transparent policy for these cases.

    • Alan Wilkinson

       /  3rd October 2016

      I really worry whether some of these down-voters have enough brainpower to chew their Weetbix.

      • My guess is someone who admits to reading here for a long time but doesn’t admit to using multiple identities.

        The funny thing is that down votes, especially when obviously brainless, help highlighting comments they are trying to diss.

        • Gezza

           /  3rd October 2016

          Comments, or commenters?

        • Klik Bate

           /  3rd October 2016

          Perhaps a squirt of this in the general direction every now n’ again would help, Pete? XD

    • Gezza

       /  3rd October 2016

      The family probably would still have permanent residence because it’s granted to people as individuals I think.

  2. David

     /  3rd October 2016

    Isnt having 2 wives illegal as well. The guy should be deported we have enough wife beaters already and dont need to import them to fill a shortage.

    • It’s only illegal to have more than one legal wife. There is no legal limitation on who you live with.

      If the legal wife or defacto left I wonder how that would affect the family asset split. Three ways?

      • David

         /  3rd October 2016

        Not sure if the awful property relationship act covers that.
        If we are now serious about domestic violence I am struggling to find a reason for this guy to stay, given the small provocation and the severity of the assault the balance of probability is that he will do it again. But that Judge is something else.

        • Alan Wilkinson

           /  3rd October 2016

          The only reason I could imagine would be if conviction would result in the whole family being deported back to Pakistan – which would probably be a death sentence for the victim.

          • Gezza

             /  3rd October 2016

            Unlikely, imo. But Permanent Residence is granted to individuals as a right by statute. So there will be statutory provisions in the Immgration Act prescribing the only situations where that right may be revoked.

            • Alan Wilkinson

               /  3rd October 2016

              That presumes they all have permanent residency and are not here on a partnership visa.

            • Gezza

               /  3rd October 2016

              Yes, it does, but based on the report that he has 3 NZ born children, and on the not unreasonable assumption that his marriage was assessed as genuine & stable and of at least one years duration at the time residence was granted to any of them. Some of them may even be NZ cits. The kids probably are.

        • Corky

           /  3rd October 2016

          Just had my will updated. My eyes started glazing over when the property relationship act was being explained. I came to my senses quickly when it was also explained what I could lose if things were drafted incorrectly. Bottom line: use call-girls.

          • Gezza

             /  3rd October 2016

            Novel idea. Their hourly rates might be similar, depending on their skills, experience & abilities.

            But I’d still prefer to use a lawyer rather than a call girl to rewrite my will Corky.

            • Alan Wilkinson

               /  3rd October 2016

              Somehow this reminded me I’m missing Nelly and Wayne here.

      • Gezza

         /  3rd October 2016

        Ineresting question. If there was no agreement for the assets to be split, and there probably wouldn’t be, it might need to go to Court or to an Imam for a ruling.

        • Kitty Catkin

           /  3rd October 2016

          We had terrible trouble convincing a dear friend that when he married again, his will became invalid and everything would go to the bitch from Hell who saw the sign on his back that said ‘Mug, please take advantage of me.’ Oh no, BFH had said that she would do everything in the will anyway, no need to waste money on a lawyer’s visit.

          Many people don’t know that as soon as they marry, their will becomes invalid. There was a very sad case in this town where the new wife wouldn’t even let the family have their late mother’s personal things-they were prepared to let the house and money go, but did want their mother’s things that had no monetary value.

          Another BFH seeing a lonely older man with the ‘Mug’ sign on his back.

      • be nice to see more detail on this family situation. Like are both wives working or stay at home. if stay at home is one or both claiming some sort of benefit for her and her kids… and is it the legal or defacto wife or both? And is the father named? If he is supporting them both – does he get WFF and if so on what basis are kids from both wives covered by any benefit entitlements….. what is the legal situation on this in NZ re benefit entitlements and rebates if two wives are living with one husband [married in the eyes of their religion]

  3. Klik Bate

     /  3rd October 2016

    ‘Judge Philippa Cunningham’ deals YET ANOTHER crap hand to a victim 😎

    There’s a game to be played here……

    http://judgethejudges.co.nz/ViewTheHandsJudgesHaveDealtVictims

    • That makes sobering reading Klik.

      As I said on OF last night, if the system gives too much consideration to victims its going to arrive at its own patent hypocrisy over victimless crimes?

      So, does it follow that disregard for real, genuine victims constitutes the price we all pay for maintaining whatever ‘favour’ or ‘patronage’ is really going on?

      Or whatever it is – I don’t know – residual class-and-race-ism? Inability of a formulaic ‘mechanised’ justice system to deal with complex human issues? The political system’s ‘industrial’ and corporate usury of the justice system? Example: marijuana?

      I’m just coming at the issue from the PoV that “If it exists, someone must want it that way”? In a sense, “we” collectively must want it this way?
      A good example is war IMHO …

      • Alan Wilkinson

         /  3rd October 2016

        The bureaucracy will just claim it is the proxy victim for others, PZ. It is a highly experienced expert at doing that.

    • Klik Bate

       /  3rd October 2016

      And SURPRIZE, SURPRIZE: Cunningham. J. ……yet another ‘Cullen / Wilson’ appointment 😡

      https://www.beehiive.govt.nz/release/3-district-court-judges-appointed

      • We need the ‘hard man’ National appointed judges eh? :-/

        • Klik Bate

           /  3rd October 2016

          Let me put it this way PartiZ, if I had been the judge, Mohib and his whole family would now be back in Pakistan….and good riddance.

  4. Zedd

     /  3rd October 2016

    I dont think any violent crime, should get a ‘discharge without conviction’.. :/

  5. Corky

     /  3rd October 2016

    Judge Philippa Cunningham ….;liberal sop or serial offender?

  6. Kitty Catkin

     /  3rd October 2016

    Two people are killed in the same way-let’s say a coward punch by a drunken stranger-one is a much-loved person with a great career in front of them. and the other is a horrible person who is disliked by everyone who knew them.

    Is the first killing more of a crime than the second ?

    Is it more of a crime to kill a young doctor than it is to kill a dirty old alkie ?

    • Klik Bate

       /  3rd October 2016

      To me Kitty, this is a bit like the renewed debate going on about the guilt or innocence of Scott Watson. At the end of the day, the community is often better off with some people being ‘off the street’ anyway – irrespective.

      • Kitty Catkin

         /  3rd October 2016

        . If someone is a less desirable member of the community than other people, should their killer be let to go free because they killed an ugly old alkie and not a good-looking young medical student ? Let’s up the charge to murder, as coward punches are not usually intended to kill, from what I gather, just knock someone out. Two people are stabbed to death, one the medical student, one the alkie. Should the alkie’s murderer be allowed to walk away without a conviction because they only killed a smelly old man and not a clever and attractive young person ?

        Isn’t that saying that people can get away with murder as long as they choose their victims carefully ?

        • Klik Bate

           /  3rd October 2016

          It looks like you may have responded to your own comment, rather than reading mine Kitty?

          • Kitty Catkin

             /  3rd October 2016

            I don’t think so, as even if the community is better off without someone, that doesn’t mean that another person has the right to murder them and remove them from the streets in that way. The smelly old alkie may be anything but an asset to the community at large-but I don’t believe that someone who kills him is any less of a murderer than if they had killed someone else who is younger, more attractive and more intelligent, and I don’t believe that the law should differentiate between the two.

            I would hate to live in a society where murder was less or more of a crime because of the perceived worth of the victim.

            Should the burglars’ sentences depend upon the wealth of the victims ? Short if the victim’s rich, longer if they are not ?

            I can’t see any connection between this and the Scott Watson case.