[1] The appellant, Mr Yasir Mohib appeals against the sentence of 12 months’ imprisonment imposed on him on charges of assault with a weapon,1 assault,2 and behaving threateningly,3 in respect of which he had entered pleas of guilty.

[2] When initially sentenced on the charges in the District Court, he was granted a discharge without conviction. However following a successful Crown appeal convictions were entered and the matter was remitted back to the District Court for re-sentencing.4

[3] On 16 December 2016, the appellant was sentenced to 12 months’

imprisonment by Judge Fraser.5

Factual background

[4] The summary of facts in respect of which the appellant entered pleas of guilty, states that he and the victim are married and they reside together at an Auckland address with the appellant’s second “wife”.6

[5] On Saturday 23 May 2015, the appellant was sitting with the two women watching a movie. The victim asked the appellant why he was holding the other woman’s hand but not hers. The second wife then left the room, whereupon the appellant slapped the victim across the face with his open palm, and punched her multiple times in the head with a closed fist. The appellant then said, “We’ll finish this after the movie, don’t say a word.”

[6] The second wife returned to the room and the three resumed watching the movie, and when it ended, the second wife again left the room. The appellant also

1      Crimes Act 1961, s 202C. Maximum penalty five years’ imprisonment.
2      Crimes Act 1961, s 196. Maximum penalty one year imprisonment.
3      Summary Offences Act 1981, s 21. Maximum penalty three months’ imprisonment or a fine not
exceeding $2,000.
4      Solicitor-General v Mohib [2016] NZHC 1908.
5      Police v Mohib [2016] NZDC 25782.
6      Although she is referred to as the appellant’s “mistress” in the summary of facts, Wylie J employed the term “second wife” in the Solicitor-General’s appeal as being more appropriate to the circumstances wherein the appellant and his “second wife” had married by means of a religious ceremonial wedding in early 2015.

left the room and returned holding a hammer, saying to the victim “this is for you”. He then struck the victim with the head of the hammer, delivering multiple blows to her arms and legs. The victim begged for her life, and the appellant “relented” and hugged her.

[7] As a result of this attack, the victim suffered five or more large bruises to her right thigh, and one large…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mohib v Police

Details

AGLC: Mohib v Police [2017] NZHC 123
Case: [2017] NZHC 123
Decision Date: 10 February 2017

CaseChat Overview and Summary

Yasir Mohib appeals against his conviction on the grounds that the sentence of 12 months’ imprisonment imposed on him for charges of assault with a weapon, assault, and behaving threateningly was manifestly excessive and that a sentence of home detention should have been imposed instead. The District Court had initially granted Mohib a discharge without conviction, but following a successful Crown appeal, convictions were entered and the matter was remitted back to the District Court for re-sentencing. The appellant submits that the starting point for the sentence was too high, that insufficient credit was given for the mitigating factors, and that the Judge erred in determining that imprisonment was the least restrictive outcome appropriate in the circumstances. The court considered the aggravating factors, including the use of a weapon, the vulnerability of the victim, the attack to the head, the harm to the victim, and that the attack was prolonged. The court also considered the mitigating factors, such as the appellant's guilty pleas, remorse, participation in restorative justice, and efforts at rehabilitation. The court held that the starting point of 15 months' imprisonment was within the available range for the charge of assault with a weapon, and that the discount for mitigating factors was not manifestly excessive. The court also held that the Judge was entitled to conclude that imprisonment was the least restrictive sentence appropriate in the circumstances, as the appellant's continued denial of using a hammer in the assault demonstrated that he did not truly acknowledge responsibility for his actions. The appeal was dismissed.

Orders