Judge ‘misguided’ over discharge without conviction, overturned

The police have successfully appealed a discharge without conviction after multiple assaults in Queenstown.

The appeal was covered here: Infidelity, assault, discharge, appeal

ODT now reports:  Comments by judge were ‘misguided’

A man who assaulted his wife, daughter and best friend in Queenstown after uncovering an affair has been convicted after the Crown appealed a decision to discharge him without conviction.

The High Court yesterday released its decision, which overturns a district court judge’s decision.

Justice David Gendall found Judge John Brandts-Giesen erred by allowing the 58-year-old man, who has name suppression, to be discharged after he admitted the assaults on September 14 last year.

Comments the judge made at the time of his decision had been “misguided”, “unfortunate” and attempted to normalise and minimise the offending and blame the victims, Justice Gendall said.

Judge Brandts-Giesen first erred because his assessment of the gravity of offending was “clearly wrong” and secondly because there was insufficient material before him to find the consequences of convictions were out of all proportion to the gravity of the offending, he found.

In the Queenstown District Court, Judge Brandts-Giesen had said it was a “nasty assault” on one level but on the other it “had to be seen in its context” and the defendant “saw red” when he discovered the affair.

He then said “there would be many people who would have done exactly what you did, even though it may be against the law to do so” and, later, that it was a situation “that does your wife no credit and the [male victim] no credit”.

That was widely criticised, and led to the police appeal.

Justice Gendall considered Judge Brandts-Giesen’s assessment of the gravity was “misguided” and said he appeared to have been influenced by the views of the defendant’s wife.

The “unfortunate” comments the judge made during the hearing also seemed to be “influential” in his reasoning, Justice Gendall said.

“[The comments] attempt, first, to normalise and minimise the respondent’s offending and secondly, to blame the victims here … In my view, this is quite wrong and it worked to significantly derail the judge’s assessment of the gravity … here.”

Justice Gendall granted leave for the appeal, set aside Judge Brandts-Giesen’s decision, entered convictions on all three charges and ordered the matter be remitted to the Queenstown District Court for sentencing on May 7.

“For the avoidance of doubt, the sentencing process approach is to be conducted entirely afresh.”

Discovering a partner has declared love for a friend would understandably be very upsetting, but the appeal by the police and this ruling have made it clear that resorting to violence is not a justified response and there must be legal consequences.

Infidelity, assault, discharge, appeal

An interesting case down this way involving a family, infidelity, multiple assaults when discovered, a prosecution, a discharge without conviction, and now an appeal against that discharge.

Discovering infidelity of a spouse or partner would understandably be upsetting to may people, but is violence an unacceptable response?

We have a major societal problem, especially involving men, where adverse situations result in violence against others or against themselves (like suicides ,and domestic assaults including murder).

ODT:  Appeal sought on assault discharge

The Crown has applied for leave to appeal discharges without conviction granted to a man who assaulted his best friend, wife and daughter in Queenstown last year.

The 58-year-old Central Lakes man, who has name suppression, had earlier admitted assaulting his wife, daughter and best friend on September 14, having discovered a text between his wife and friend declaring their undying love for each other.

Ultimately, Judge Brandts-Giesen found the gravity of the man’s offending was low to moderate and the consequences of convictions were out of proportion.

A problem is that “low to moderate” violence can easily have serious unintended consequences, and can easily escalate  into very serious situations.

At the time he said while on one level it was a ”nasty assault”, on another it had to be seen in context and there would be ”many people who would have done exactly what you did, even though it might be against the law to do so”.

That is alarming. He is excusing violent assault on a highly questionable “many people who would have done exactly what you did”. Many people have to deal with infidelity and relationship breakups, and the vast majority don’t lash out violently, and that sort of reaction should not be portrayed as a normal reaction by the Court.

The man left the bar when he saw the text message, but then encountered the male victim in the CBD.

He assaulted his friend and then when his daughter intervened he grabbed her around the throat, pushed her down and held her there, causing bruising.

When the defendant’s wife stepped in, he pushed her and she fell to the ground.

Ms Thomas submitted the matter ”became derailed” during the gravity assessment because Judge Brandts-Giesen appeared to consider the offending or surrounding circumstances ”unusual”.

”Infidelity of itself is not an unusual phenomenon in society.

”Nor, in my respectful submission, is the discovery of infidelity.

”Nor is it … in the context of domestic violence, or when assessing gravity, unusual that there may be actions arising … out of what’s seen as infidelity and the finding of infidelity.

”The sad reality … of domestic offending that the courts grapple with daily … is that it’s not unusual at all.

”The learned district court judge erred in … allowing mitigating factors to be taken into account … that he ought not to have.”

Having made that error, she submitted he erred further in assessing the consequences of convictions.

That will be for the appeal court to decide, if leave for appeal is granted – the High Court judge reserved his decision.

Although Ms Denton agreed infidelity was not unusual, ”in [the defendant’s] world, it was”.

The defendant had known the male victim longer than his wife, his reaction that night ”was very unusual” and described it as ”visceral”.

”He did not see the situation coming”.

Many people do not see situations like this coming, but most do not react violently.

With regard to the more serious assault on his daughter, Ms Denton said it was not ”a traditional domestic violence incident” and he had no idea whom he had grabbed until after the incident.

”He only became aware it was his daughter when she came up to him afterwards and said. ‘Dad, look at what you’ve just done to me’.”

That sounds like he was out of control. Anything could have happened – anyone could have been harmed, potentially very seriously.

People get convicted for far less – for example for things like momentary carelessness when driving. They are prosecuted for the potential risk to others, even if there is no actual harm done.

It will be interesting to see how this appeal progresses, if leave for appeal is granted.

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.

Much fewer discharges without conviction

Statistics released today show that discharges without conviction have reduced significantly every year since 2010.

RNZ: Discharge without conviction numbers slump

Ministry of Justice figures show there were 3263 discharges without conviction in 2010. That number has fallen every year since, to 1872 last year.

Criminal Bar Association vice president Len Anderson said that was not surprising.

“It has become much more difficult to get a discharge without conviction. A few years ago, you could just go along to court and ask for it.

“Now it’s a very formalised process with affidavits, that is evidence in support, and you really have to demonstrate something quite out of the ordinary before you can get one.”

This is timely given the furore over a discharge without conviction.

The figures follow controversy around the case of Losi Filipo, a Wellington rugby player who was last month discharged without conviction for an assault on four people.

Anderson discusses issues related to this discharge.

“So far as career is concerned, you need to be able to establish that it will have an effect, not that it may have an effect. So if somebody has, say, an employment contract that is put in jeopardy, that’s obviously something the court will consider.

“One of the main things that keeps people out of trouble is having a job and if the person is likely to lose their job as result of a conviction, that is obviously an important factor and important consequence that other people wouldn’t face.

“If you take the rugby player situation, a rugby player with a contract who’s at risk of losing it would be in a different position to a promising rugby player who would hope to get a contract in the future.”

From the sound of what Rugby Union spokespeople had said and provided in character references there was no risk of Filipo losing his contract. However Filipo gave up his contract yesterday after widespread criticism.