An Auckland man whose discharge without conviction for beating his wife with a hammer has been overturned says he fears the consequences for his family.
Yasir Mohib denies a hammer was involved but admits assaulting his wife. The facts of the case are that the assault occurred after she complained they weren't holding hands while watching a movie together.
He told the Herald today he was "disappointed" the decision to discharge him had been overruled by the High Court but was prepared to accept his punishment.
But he fears his family will be punished too if it means he is deported to Pakistan. His family do not want to be split up and deportation would mean his two New Zealand-born wives and their five Kiwi children would go with him.
He is from the troubled Kashmir region. They want to raise their children in New Zealand because opportunities would be greater here for them, he and his wives said.
"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."
In September last year, Mohib pleaded guilty to charges of common assault, assault with a weapon and threatening behaviour.
He said he had pleaded guilty to the charge of assault with a weapon because he was desperate to be reunited with his family from whom he was separated after the assault.
"I wanted to go back to my family and they wanted me to come back but there was no way until I pleaded guilty.
"No, there was no hammer involved. There was an argument. There were bruises. I punched her with my empty hand."
The victim, his wife Fatimah, also told the Herald that no weapon was involved. She said the hammer came to be part of the statement of facts put before the court because of pressure from members of the wider family.
They have since had a fourth child. Mohib has one child with his second wife.
But both the district and high court judges took the view that a hammer was used.
In April, Judge Philippa Cunningham ruled the consequences of convictions for Mohib 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 might be deported to Pakistan despite the legal principle that a sentencing judge should not usurp the role of Immigration authorities.
Her decision was later overturned by the High Court.
In his judgment on Mohib, Justice Edwin Wylie said the district court judge failed to correctly identify the seriousness of the attack but was right, in his opinion, to conclude a hammer was used.
Judge Wylie said he had seen photographs of the bruises. "The bruises are significant and they appear to have an inner round ring which I suspect is consistent with a blow from an object such as a hammer."
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.
Mohib has worked in New Zealand for property management and security firms and ran his own meat wholesaling business. He is not currently working. His work visa was not renewed after he was charged with the assault.
His application for permanent residency is on hold, he said.
It's the third time Judge Cunningham has been over-ruled after granting a discharge without conviction.
The previous cases involved a well-known comedian who pleaded guilty to performing an indecent act on his daughter, and the son of the Maori King on charges of burglary, theft and drink driving.