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.