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An Auckland man who previously escaped a conviction for beating his wife with a hammer has now been handed a jail term.
Yasi Mohib pleaded guilty to three violence charges - common assault, assault with a weapon and threatening behaviour - and was discharged without conviction by Judge Philippa Cunningham.
She ruled the consequences of convictions were out of proportion to the gravity of the offending, in particular the possibility Mohib, 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.
The controversial decision was later overturned by the High Court and labelled ``plainly wrong'' by Justice Edwin Wylie, who said the district court judge failed to correctly identify the seriousness of the attack.
He sent the case back to the Auckland District Court for a new hearing, where Judge Grant Fraser sentenced Mohib to 12 months in prison.
``This was a prolonged assault, firstly with slapping and punching to the head and then an assault consequential upon that by raining multiple blows down on your wife,'' Judge Fraser said.
``The victim begged for her life and you relented at that point and hugged her.''
Despite pleading guilty, Mohib denied striking her with a hammer and his wife later recanted her statement to police where she said a hammer was the weapon.
Judge Fraser said photographs of the bruising to her right leg and arm, as well as face and head, were a ``graphic depiction'' of the injuries suffered by the victim.
``A combination of those factors leave me in absolute no doubt, at all, that you struck your wife as she had described ... a hammer was used. There is no doubt about that and the fact that your wife is now recanting is nothing necessarily new in a family violence setting, but it is a matter of concern,'' Judge Fraser said.
He sentenced Mohib to 12 months in prison, after giving a discount of six months for his early guilty plea, remorse, clean record and an acknowledgement of how difficult a prison sentence would be for a foreign national.
``I have given the mitigating factors full weight but they are not such when balanced by your repeated denials of the use of the hammer, that they outweigh the need to impose a sentence that clearly condemns this level of family violence,'' said Judge Fraser.
``A sentence of home detention in these circumstances would not adequately achieve that.''
However, Mohib has now appealed against the prison sentence and the case will again be heard in the High Court next week.
Mohib has previously said he fears the consequences of a conviction for his family.
``If I did wrong I should be punished for it but not my whole family,'' Mohib told the Herald.
``That's my only point, that it could affect my whole family, my five little kids, my wives. There is no way we are going to be separated. So if I get deported it means all of these guys need to go to Pakistan.''
Mohib is legally married to the victim, with whom he has three New Zealand-born children, as well as 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, leaving at least five large bruises.
Mohib pleaded guilty to the three charges and apologised to his wife at a restorative justice conference.
She wanted to reunite the family. The couple attended religious counselling at a local mosque, where 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 a discharge without conviction. His work visa was cancelled and he was declined a visitor visa, so he was in New Zealand illegally, and might be deported.
Despite the opposition of police, Judge Cunningham granted the discharge without conviction in April last year.
She noted there were no broken bones and Mohib stopped when the victim pleaded with him.
The Solicitor-general appealed the sentence on the grounds Judge Cunningham erred by usurping the role of immigration authorities, the offending was serious and the discharge without conviction was wrong.
In August, Justice Wylie overturned the decision and said the district court judge had 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,'' Justice Wylie said.
``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 had 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 Wylie. ``For the reasons I have set out, I agree.''
It was the third time Judge Cunningham has been over-ruled after granting a discharge without conviction.
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 OK
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