Mohib v Police
[2017] NZHC 123
•10 February 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-439 [2017] NZHC 123
BETWEEN YASIR MOHIB
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 2 February 2017 Appearances:
T A Fitzgibbon for Appellant
A L McConachy for RespondentJudgment:
10 February 2017
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 10 February 2017 at 10.30 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland
MOHIB v POLICE [2017] NZHC 123 [10 February 2017]
Introduction
[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 bruise to her right arm. She also suffered bruises to her face and head.
District Court decision
[8] In setting a starting point for the offending, the District Court Judge identified as aggravating features: 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. 7
[9] The Judge did not identify any mitigating factors relating to the offending or aggravating factors relating to the appellant.
[10] As regards mitigation, the Judge noted the appellant’s guilty pleas but said that he was balancing that against the fact that the appellant had resiled from that part of the summary of facts referring to his use of the hammer. The Judge acknowledged the appellant’s remorse but said that he considered that it related more to the outcome than the appellant’s offending. The Judge further said that the appellant would receive credit for having undertaken the restorative justice process and for engaging in counselling with his imam, but expressed his concern about references in the report to the appellant saying that the events had been exaggerated by the victim. Finally, the Judge acknowledged that the offending occurred in 2015 and, since that time, the appellant had been back residing with his family.
[11] Having referred to those aggravating and mitigating factors, the Judge then identified the assault with a weapon as the lead charge and determined a starting
point of 15 months. He then uplifted that by three months to account for the first
7 At [25], [26] and [27].
assault. The Judge imposed a one month concurrent sentence for the threatening charge.
[12] From the total starting point of 18 months, the Judge allowed two months’ discount to recognise remorse, the lack of previous convictions, and to acknowledge the impact of imprisonment on a foreign national. The Judge then gave a further discount of four months in recognition of the guilty pleas, resulting in a sentence of
12 months’ imprisonment.
[13] In giving consideration to a sentence of home detention the Judge noted with concern the appellant’s continued denial of the use of a hammer, and minimisation of the offending, saying:
[34] This counters the notion that there has been any effective rehabilitation because acknowledging offending in its entirety, enables an appropriate rehabilitative process to be effective. This is not the case here and in fact, it is the opposite. In that circumstance, whilst acknowledging the impact of imprisonment on you and the possible immigration consequences for you and your family, imprisonment is the only appropriate outcome.
[35] Whilst it is practicable and desirable to keep offenders in the community, as far as that is practicable and consonant with the safety of the community, and having considered home detention, the seriousness of the offending and the continued denial now in my view warrant a deterrent and denunciating approach where imprisonment is the only appropriate outcome.
[36] 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. A sentence of home detention in these circumstances would not adequately achieve that.
[14] In addition to the sentence of imprisonment, the Judge also imposed six months’ standard and special conditions to apply from the imprisonment end date. No issue is taken with those conditions on appeal.
Grounds of Appeal
[15] The appellant appeals his conviction on the grounds that the sentence was manifestly excessive and a sentence of home detention should have been imposed. The appellant submits that the Judge erred in three respects:
(a) adopting an excessive starting point;
(b) providing insufficient credit for the appellant’s prior good character,
participation in restorative justice, and efforts at rehabilitation; and
(c) determining that imprisonment was the least restrictive outcome appropriate in the circumstances.
Appellant’s submissions
[16] For the appellant, Ms Fitzgibbon submits that although there is no tariff judgment applicable to the offence of assault with a weapon, the Court of Appeal’s decision in Nuku v R provides general guidance for this type of sentencing.8 She says that the starting point is to be set by placing the offending into one of the three bands prescribed in Nuku with reference to the aggravating factors set out in R v Taueki.9
Ms Fitzgibbon submits that the offending in this case falls in the upper level of band one or the lower level of band two. Ms Fitzgibbon submits that the offending in this case falls in the upper level of band one or lower level of band two.
[17] The appellant submits that, in setting the starting point, the Judge incorrectly identified the aggravating features, and erroneously identified the use of a weapon as being an aggravating feature. The appellant submits that this approach means there was a double-counting, as the use of a weapon is an element of the offence. The appellant also submits that the Judge incorrectly identified an attack to the head of the victim as an aggravating feature of the lead offence, as that occurred in the offending giving rise to the separate charge of assault, rather than as part of the assault with a weapon charge. The appellant also takes issue with the Judge’s description of the victim as being vulnerable and defenceless, and of the assault as being prolonged. He submits that while it is accepted that there were two separate assaults, neither was prolonged in duration. Issue is also taken with the Judge’s observation that the offending would result in significant ongoing psychological harm to the victim. Counsel for the appellant submits that finding was not
substantiated by any evidence.
8 R v Nuku [2012] NZCA 584; [2013] 2 NZLR 39.
9 R v Taueki [2005] 3 NZLR 372 ( CA).
[18] The appellant submits that the charge of assault with a weapon warrants a starting point of between 10 and 12 months’ imprisonment, relying on Edmondson v Police10 and Barrett v Police.11 The appellant accepts that an uplift of three months was appropriate to reflect the additional charge of common assault. Accordingly, the appellant submits that a final starting point of 12 to 15 months’ imprisonment would be appropriate. No issue is taken on appeal with the concurrent sentence for the threatening charge.
[19] The appellant further submits that the discount allowed by the Judge for mitigating factors relating to the offender (two months or 11 per cent) was insufficient. The appellant submits that a discount of around 20 per cent would be appropriate.
[20] The appellant submits that the Judge was in error by declining to sentence him to home detention, as there are a number of factors that support a sentence of home detention rather than imprisonment. Rather, the appellant submits, the Judge placed excessive and undue weight upon his ongoing denial of the use of a hammer.
Respondent’s submissions
[21] Ms McConachy for the respondent submits that the end sentence of 12 months’ imprisonment was well within the range available to the Judge, and refers the Court to Goodman v R12 and Pathiranage v Police13 which it says confirm that the sentence imposed was within the range open to the Judge.
[22] In relation to home detention, the respondent submits that, although a requirement for consideration, it was within the sentencing Judge’s discretion to determine that home detention was not an appropriate sentence in this instance.
Appeal against sentence
[23] The appellant has a right of appeal against sentence pursuant to s 244 of the
10 Edmondson v Police [2015] NZHC 3184.
11 Barrett v Police [2014] NZHC 1259.
12 Goodman v R [2016] NZCA 64.
13 Pathiranage v Police [2013] NZHC 738.
Criminal Procedure Act 2011. Section 250(2) of the CPA states that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[24] In any other case, the Court must dismiss the appeal.14
[25] Section 250(2) does not change the approach taken under the Summary
Proceedings Act 1957. 15 That approach was set out in R v Shipton:16
(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”
(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[26] The Court will not intervene where the sentence is within the range. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given,
rather than the process by which the sentence is reached.17
14 Criminal Procedure Act 2011, s 250(3).
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
16 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
17 Ripia v R [2011] NZCA 101 at [15].
Analysis
The aggravating features of the offending
[27] When referring to the appellant’s offending generally, and without specifically mentioning the assault with a weapon charge, the Judge referred to R v Taueki, and appears to have identified those factors listed in Taueki that he considered present in the case before him. In doing so he referred to the use of a weapon as being an aggravating factor. Ms Fitzgibbon submits that as a consequence, the Judge appears to have treated the use of a weapon as an aggravating factor that resulted in the starting point being uplifted and double counted. However, I note that the Judge did not specifically uplift the starting point by reference to the use of a weapon being an aggravating factor, and nowhere else in his decision did he refer to that aspect of the offending. In these circumstances, while it would have been preferable for the learned Judge to have first separated out his consideration of the lead offence of assault with a weapon, assess its seriousness and adopt a starting point, and then adjust that starting point in recognition of aggravating and mitigating factors relating to the appellant, I do not think that in fact he undertook an exercise that involved any double counting as regards the use of a weapon. Although the lead charge itself included the element of the use of a weapon, the manner in which it was used, and the injuries caused by its use were relevant to an assessment of the seriousness of the offending and consistent with the factors described in Taueki as being relevant to such an assessment.
[28] Also, when referring to aggravating factors the Judge referred to the attack to the head of the victim. This attack occurred during the first phase of the incident, before the interval and before the appellant left the room to get the hammer. The attack to the victim’s face involving slaps and punches is the subject of the separate charge of assault. Again, Ms Fitzgibbon submits for the appellant that the Judge effectively double counted by both considering the attack to the victim’s head as an aggravating factor that elevated the starting point, and then again later referred to it as justifying a discrete three month uplift to the starting point. However, as I have already observed, it appears that the Judge identified the factors that were relevant to an assessment of the seriousness of the offending in a general way, before turning to
decide the appropriate starting point for the lead offence of assault with a weapon, and there is no indication in his decision that his approach resulted in any double counting.
[29] I also consider that the Judge did not erroneously treat ‘vulnerability’ and
‘defencelessness’ as being two discrete and separate aggravating factors. I read that portion of the decision as the Judge simply using two synonyms, to refer to the same single aggravating factor.
[30] The appellant also takes issue with the District Court Judge’s description of the attack as ‘prolonged’, correctly noting that there were two attacks, each giving rise to separate charges. In my view, here the Judge was referring to the fact that the two separate attacks occurred over a period with an interval separating them, rather than saying that the actions comprising the assaults were themselves prolonged. In any event, the summary of facts states that the appellant inflicted multiple blows to the victim until she begged for her life, and in light of that description it is not inappropriate to regard the assault as being prolonged. Accordingly, I do not consider that the Judge erred in describing the attack as being prolonged.
[31] The appellant further takes issue with the Judge’s comment that the offending would have caused significant psychological harm to the victim and it is submitted that there was no evidence before the Court upon which the Judge could base such a statement. To the contrary, the appellant refers to the victim’s statements which were before the Court, expressing her support for the appellant. However, in referring to ongoing psychological harm caused to the victim, the Judge did not expressly refer to it as being an aggravating factor and, in any event, I consider that the Judge was saying no more than was justified by the nature and circumstances of the attack. A victim of an attack with a weapon who was so fearful of the situation that she pleaded to her attacker for her life, must have believed that the severity of the attack threatened her life. In light of those circumstances it was not unreasonable for the Judge to refer to the victim suffering psychological harm, and I note that the Judge acknowledged that it had not been referred in the sentencing materials.
[32] As I have said it would have been preferable if the Judge had separated his assessment of the charges and identified the aggravating and mitigating factors relating to the lead offending as part of the process of selecting and applying a starting point. By proceeding to consider all the aggravating factors relating to the charges together, the basis of the Judge’s reasoning and the sentence imposed is not as clear as might otherwise have been the case. Nevertheless, the issue here is whether the final sentence imposed by the Judge was manifestly excessive, and I now turn to consider whether the sentence imposed was within the available range.
The starting point
[33] In Taueki, when addressing offending causing grievous bodily harm with intent to cause grievous bodily harm, the Court of Appeal identified a list of matters that will contribute to the seriousness of the offending.18 While of course that charge is not applicable in the present case, several of the factors relevant to an assessment of the seriousness of violent offending in that context, are in my view equally relevant and applicable to an assessment of the seriousness of the charge of assault
using a weapon under s 202C.
[34] The Court of Appeal’s list relevantly included:
(a) The extent or degree of violence, the Court observing:19
The extent of the violence involved in the offending will have an obvious impact on the level of criminality. Where any violent conduct is prolonged that will also be relevant, as will violence which is unprovoked or gratuitous. This reflects s 9 (1)(a) and (e) of the Sentencing Act.
(b) The presence of premeditation, in respect of which the Court said:20
The degree of premeditation and planning will also reflect criminality. Serious violence which can properly be classified as impulsive or a reaction to an unexpected event will generally be seen as less culpable than premeditated violence. This reflects s 9 (1) (i) of the Sentencing Act.
18 Rv Taueki, above n 9, at [31], [32] and [33].
19 At [31](a).
20 At [31](b).
(c) The seriousness of the injury which will inform an assessment of the seriousness of the offending.
(d)The use of a weapon. The Court of Appeal noted that the type of weapon used would be relevant, and that where the use of a weapon was premeditated the criminality would be greater. While in the present case the use of a weapon is an ingredient of the offence, the type of weapon and how it was employed in the course of the offending will also inform an assessment of the seriousness of the offending.
(e) Vulnerability of the victim. The Court commented that where the victim is particularly vulnerable, including where there is a disparity in size or strength between the attacker and the victim, that will be a significant factor in the assessment of culpability.
[35] The Court of Appeal also identified several matters which should not be regarded as reducing the seriousness of the offending, including:21
(a) Domestic situation: The fact that violence occurs in a domestic situation should not be seen as reducing its seriousness. Indeed, domestic violence is a major problem in New Zealand society and, by its very nature, one which is difficult to detect. It frequently involves violence by a man against a woman or child, where the vulnerability of the victim is a significant factor.
(b) Victim’s plea: Sometimes the victim of a serious assault, particularly in a domestic situation, will ask the Court to impose a lenient sentence. This provides something of a dilemma for a Court, but in our view the position is now clear that the Court should not condone violent conduct even if the victim does so: there is a public interest at stake as well as the interest of the victim: Clotworthy22 at 659. That is not, however to say that the views of the victim are to be ignored: rather it is simply to emphasise that the views of the victim do not outweigh the public interest.
[36] In support of a submission that the starting point selected by the Judge was too high, the appellant refers to Edmondson v Police as being comparable.23 In that
21 At [33].
22 R v Clotworthy (1998) 15 CRNZ 651 (CA).
23 Edmonson v Police, above n 10.
case, the appellant pleaded guilty to one charge of assault with a weapon and one of assault with intent to injure. The brief facts were that the appellant had been drinking with two male associates before going to the victim’s address. When the victim asked him to leave, his associates did so but he refused. He then pushed the victim onto a sofa, pulled her hair, and elbowed her in the right eye with some force. Those actions constituted the assault with intent to injure. The appellant then went to get a knife from the kitchen and warned the victim that she could call the Police but that he would put a knife to her throat faster than the Police could get there. When the victim attempted to telephone the Police, the appellant attempted to take the telephone away from her by bending her fingers back. He then went to the kitchen, retrieved a large carving fork, and used it to stab her in the lip. Those actions constituted the assault with a weapon. On appeal, Peters J found that the 18 month starting point adopted by the District Court Judge was manifestly excessive and reduced the starting point on the assault with a weapon charge from 18 months to 14 months’ imprisonment.
[37] The appellant also refers the Court to Barrett v Police.24 In that case, the appellant was at her boyfriend’s home when his former girlfriend, the victim, arrived. When the appellant’s boyfriend went outside to speak with the victim, the appellant became angry, and taking an aluminium baseball bat from the house, went out and without warning struck the victim on the back of her neck. The victim briefly blacked out. The District Court Judge adopted a 12 month starting point which was not challenged on appeal.
[38] I consider the gravity of the offending in the present case to be broadly comparable with that in Edmondson. Both involved a two stage attack with the offender showing some degree of premeditation in going to retrieve a weapon. I also note that although in the present case the hammer was not used for an attack to the head of the victim, the fact that multiple blows were struck with the hammer, nevertheless places this offending in at least a moderately serious category. While the offending here is clearly less serious than that in Barrett which involved single blow directed at the victim’s neck, the starting point of 12 months applied in that case was
not in issue on appeal.
24 Barrett v Police, above n 11.
[39] The respondent refers the Court of Appeal decision in Goodman v R.25 In that case, the appellant had an argument with his partner. The appellant grabbed the victim around the throat using two hands and threw her across the room and over a wood basket. She got to her feet but he pushed her over. This continued until he head-butted her and pushed her outside. This gave rise to a charge of assault with intent to injure. Once they were outside, the appellant pushed the victim and kicked her with such force that she fell to the ground. That gave rise to the charge of male assaults female. The District Court Judge took a starting point of two years for the charge of assault with intent to injure and he uplifted that by 12 months (reduced for totality to six months) for the male assaults female charge. A further totality discount was also applied, meaning the effective global starting point was 28 months. The Court of Appeal held that this was within the appropriate range. Further, in that case,
the Court of Appeal stated:26
As submitted by the Crown, generally sentences of between two to three years’ imprisonment for domestic violence offending are not uncommon and a single charge of male assaults female tends to carry a term of imprisonment of between two and 12 months.
[40] The respondent also refers the Court to Whata J’s decision in Pathiranage v Police.27 That case involved charges of possessing an offensive weapon, male assaults female, and threatening to kill or do grievous bodily harm. The appellant had assaulted his wife by putting his hands around her mouth and squeezing, digging his fingernails into her cheeks. He repeated his actions and then pinned her to the bed, putting pressure on her throat. In a further incident the following day, he kicked
her in the thigh and put his hand over her mouth. He also pointed the tip of a butcher’s knife at her, acted out stabbing her with the knife handle and threatened that he would stab her. The victim suffered injuries by way of scratches to her cheek, sore mouth, sore left arm, sore wrists and pain in her chest. In that case, Whata J dismissed an appeal against the sentence of nine months imprisonment, stating:28
An evident theme in those cases is that the type of offending in this case will usually attract a sentence of imprisonment in the range of nine months to two years.
25 Goodman v R, above n 12.
26 At [12] (footnotes omitted).
27 Pathiranage v Police, above n 13.
28 At [12].
[41] The respondent acknowledges that Pathiranage involved different charges to the current offending, but submits that the present case is more serious as it involves the actual use of a weapon, rather than a threat of use of a weapon.
[42] By reference to the authorities provided by both the appellant and the respondent, it is my view that having regard to the facts of the offending as contained in the summary, the starting point of 15 months’ imprisonment adopted by the District Court Judge in the present case was within the available range for the charge of assault with a weapon. I note that the starting point of 15 months is 25 per cent of the maximum penalty of five years’ imprisonment applicable to this offence and falls in the middle of band two of Nuku. Having regard to the serious nature of the offending and the injuries suffered by the victim, it is my view that the starting point is a justified and proportionate assessment of the appellant’s culpability that has not been shown to be erroneous or manifestly excessive.
The mitigating features
[43] The District Court Judge allowed two discounts to the starting point. No issue is taken on appeal with the discount allowed for the guilty plea.
[44] The appellant submits that the discount of 11 per cent for remorse, previous good character, and rehabilitative efforts was insufficient and a discount of 20 per cent would have been more appropriate. The appellant cites Nunna v Police wherein the appellant had previous good character, had shown some remorse, and had undertaken rehabilitation programmes (although the reports from those programmes
recorded that the appellant expressed resentment towards the victims).29 In that case,
a total discount of 20 per cent for those personal factors was allowed. On appeal, Wylie J commented that it was generous and referred to Clark v R, a case where a discount of six months (seven per cent), was appropriate for remorse and having
successfully undertaken rehabilitation courses.30
29 Nunna v Police [2015] NZHC 2971.
30 Clark v R [2013] NZCA 63.
[45] I have considered the two Provision of Advice to Courts reports, the restorative justice report, and the letter from the appellant’s religious advisor. In my view, the District Court Judge was entitled to express reservations about the appellant’s remorse where it relates more to the consequences of the appellant’s actions, than to his actions themselves. Also of concern are the repeated references to the victim’s exaggerations and the unwillingness of the appellant to accept responsibility for use of a hammer, despite his plea of guilty on the basis of the summary of facts that explicitly describes it being used in the attack upon the victim.
[46] For those reasons, I consider that, although in the low end of the range, the Judge’s discount for personal factors was within range. While if I were to be carrying out the sentencing afresh, I would be minded to allow a discount in the order of 15 per cent, the adoption of a slightly lesser figure does not mean that the sentence imposed by the Judge is manifestly excessive.
Home detention
[47] The appellant also appeals the District Court Judge’s refusal to impose a
sentence of home detention.
[48] Section 15A(1) of the Sentencing Act 2002 provides:
15A Sentence of home detention
(1) If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if—
(a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and
(b) the court would otherwise sentence the offender to a short- term sentence of imprisonment.
[49] It is well established and accepted that home detention is a punitive and seriously restrictive sentence. Also relevant and applicable here is the principle of
the Sentencing Act that the Court must impose the least restrictive sentence appropriate in the circumstances.31
[50] The respondent has referred to the case of Hounuku v Police which involved similar circumstances to the present case.32 That case also involved domestic violence and although the appellant had pleaded guilty he had had shown little remorse, had minimised his actions, and appeared not to have taken responsibility for them. The appeal was founded, in part, on the ground that the Judge had failed to adequately address and consider whether a sentence of home detention was appropriate. Toogood J stated:33
As Judge Ingram identified, the assault involved violence meted out to a defenceless, vulnerable woman resulting in serious harm. He was entitled to conclude that the appellant must be held accountable for that offending and that a sentence of home detention would not be sufficient to denounce that type of conduct. Sentences of imprisonment for this type of offending are intended to send a clear message to men that violence of this kind against women will not be tolerated.
[51] In that case the appellant had punched his partner several times in the face, and had kneed her once in the stomach. The victim suffered severe bruising to her arms and head, two damaged front teeth, a cut to the inside of her cheek and a bleeding nose.
[52] Here the appellant submits that there were a number of factors present which ought to have led the Judge to conclude that a sentence of home detention was appropriate as being the least restrictive and available sentence to be imposed. The appellant identifies the following factors:
(a) The appellant’s previous good character and the absence of any
history of criminal offending.
(b)The offending was out of character, there being no record of any other incidents being either reported or unreported.
31 Sentencing Act 2002, s 8(g).
32 Hounuku v Police [2015] NZHC 2734.
33 At [17].
(c) The appellant’s involvement with and efforts at rehabilitation by
attending counselling.
(d)The appellant’s attendance at, participation in, and offer of an apology at a restorative justice conference.
(e) The appellant having been residing at the family home with the victim for a number of months without any incident.
(f) There were no issues relating to the appellant’s compliance with bail
conditions.
(g) The appellant’s likelihood of reoffending was assessed as low.
[53] While the presence of those factors provides some support for the imposition of a sentence of home detention, they do not reflect the full picture that was before the Judge. Further, I find that the District Court Judge was fully alert to all these factors and properly considered them. Although the appellant made an apology to his wife as noted in the report of the restorative justice meeting, other aspects of his conduct since the offending make it clear that he does not fully accept responsibility for his actions and that he is not truly remorseful. He has repeatedly denied using a hammer in the course of the second assault upon her. This is despite having pleaded guilty to the charge of assault with a weapon on the basis of a prosecution summary of facts stating that the appellant had used a hammer. The summary describes the appellant then approaching the victim and raining multiple blows with the hammer to her arms and legs resulting in five or more large bruises to her right thigh and one large bruise to her right arm.
[54] During his interview for the preparation of an Advice to Court report he informed the probation officer that he denied using a hammer when assaulting his wife. That denial not only flies in the face of his guilty plea to the charge and its
related summary of facts, but also the photographs of his wife’s injuries produced to
the Court.34 Judge Fraser said of the photographs and the use of a hammer:
[6] The photographs attached to the file are in front of me and they are a graphic depiction of the injuries sustained by your wife. They are all large, significant, round bruising and in that regard, I am assisted by the views of His Honour Wylie J when on appeal he was asked to look at this. He said at para 60:
In my view, the Judge was correct to take the view that a hammer was used.
[7] He went further to say:
While the victim belatedly sought to retract this assertion as I have noted, it was in the summary of facts which Mr Mohib accepted with his pleas. Further, I have seen the photographs of the bruising, the bruises are significant, they appear to have an inner round ring which I suspect is consistent with a blow from an object such as a hammer.
[8] …
[9] In the statement that was made by your wife to the police at the time of the offending, she was very clear about what happened when she said:
Yasir approached me and started hitting me with the hammer. I was sitting on the couch and posed no threat to Yasir, I was defenceless. He struck me on both my arms and my right leg. He struck me with all his force and at that moment, I thought I was going to die. I don’t know how many times he’s hit me but he did say to me, “This is it for you”, and while he was hitting me with the hammer, I started begging for my life.
[10] A combination of those factors leave me in absolute [sic] no doubt, at all, that you struck your wife as she had described in her statement and also as concluded by His Honour Wylie J. 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.
[55] Judge Fraser further commented that he considered it to be a matter of serious concern that the appellant was denying the use of a hammer, notwithstanding the unquestionable fact of him having struck his wife multiple times with a hammer.
[56] I agree with these comments of the Judge. The fact of the appellant continuing to deny using a hammer in the course of assaulting his wife, demonstrates
that despite his guilty plea, he does not truly acknowledge responsibility for his
34 Four photographs showing the victim’s injuries taken on 26.05.2016 at 13:30 hours at the
Avondale Police Station were produced to the Court.
actions. Such denial is wholly inconsistent with genuine remorse and is an obstacle to effective rehabilitation and reform.
[57] Furthermore, the probation officer’s report noted that the appellant’s concerns following on from his offending were focussed on the impact a conviction would have on him and his family due to his current immigration status.35 Such concerns surrounding his and the family’s immigration status, may well have influenced the victim and led to her recanting her complaint notwithstanding the clear and compelling evidence of her injuries.
[58] On the same basis as explained by Toogood J in Hounuku, I likewise consider that it was open to the Judge to decline to impose a sentence of home detention, and instead impose a sentence of imprisonment as being necessary to hold the appellant accountable for his offending, to denounce his conduct, and to deter him and others from committing similar offences.
[59] While violent offending involving the use of a weapon in any situation is serious, in a domestic setting it is both serious and insidious. Such offending affects not only the victim but often other family members, especially any children who either witness the violence or are indirectly exposed to its consequences. The victim is often conflicted between reporting the violence to the police, and the damage to the family unit that may result from involving the police and any prosecution that may follow. It is not uncommon for victims of even serious domestic violence to either not report the matter to the authorities, or if they do, to subsequently recant their complaint, no doubt in response to a wish to protect and maintain the family unit or in some instances in response to pressure and influence by the offender. Quite apart from any injuries suffered, offending of this kind will often have effects on the victim as well as any children and other family members, that extends well beyond the immediate events, and continue to have a corrosive effect on the security and stability of the family unit.
[60] As noted by the Court of Appeal in Taueki, there is a public interest at stake in cases of this kind, to protect family members from the damaging effects of domestic violence. Even where as is the case here, the victim has expressed a wish
for the appellant to be afforded leniency to be able to return to reside with her and
35 Counsel for the appellant advises that the present position is that the appellant no longer holds any visa permitting him to remain in New Zealand.
their children, that view does not outweigh the public interest in the appellant being held accountable for his offending, where a sentence of imprisonment is the appropriate means of doing so. This type of offending calls for a stern response and the imposition of a penalty that conveys a clear deterrent message to all, that such conduct is totally unacceptable, and will not be tolerated in our society.
[61] The sentence of 12 months’ imprisonment imposed by the Judge in this present case, was in my view clearly open and justifiable in the circumstances as being a sentence which will denounce the offending and hold the appellant accountable for his actions and deter others. While the Judge gave appropriate credit for the appellant’s guilty plea, the credit given for his previous good record; otherwise good character; remorse and steps taken by way of restorative justice counselling: this credit was necessarily and appropriately limited in light of the appellant’s failure to accept full responsibility for what was a serious assault using a weapon.
[62] In the end, the Judge concluded that a sentence of 12 months imprisonment was required and was the least restrictive outcome in the circumstances. He rejected the alternative of imposing a sentence of home detention, as being insufficiently restrictive to hold the appellant accountable for his offending and to otherwise meet the objectives of sentencing as prescribed in the Act.
[63] The appellant in this appeal has failed to show that the Judge was in error in his approach or in his consideration of the relevant sentencing material or principles.
Result
[64] For these reasons, I find that the sentence of 12 months’ imprisonment has not been shown to be manifestly excessive.
[65] The appeal is dismissed.
Paul Davison J
6
9
1