- Publish Date
- Monday, 3 October 2016, 7:53AM
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.
Hammer attack on wife - timeline
Yasir Mohib, 31, from Pakistan.
Legally married to the victim, mother of their 3 children. Has a second "wife" whom he married in a religious ceremony.
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".
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.
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 633www.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