New Zealand Case Law: Decisions & Judgments

Topic

Sentencing act ss106-107

Legal area

Court

31 Jul 2023

CALING v DIRECTOR OF CIVIL AVIATION [2023] NZHC 2017

Citation

[2023] NZHC 2017
Court

High Court

Appellant knowingly flew New Zealand-registered aircraft fitted with ferry fuel systems without required certified installation sign-off; although the design had Australian approval which reduced design-related risk, lack of New Zealand conformity certification and deliberate non-compliance made the offending sufficiently serious that the direct and indirect consequences of conviction were not out of all proportion to the gravity of the offending; no evidence the Director deceived appellant about opposing s106 applications; appeal dismissed and conviction and fine upheld.
30 Jun 2023

JOHNSTONE v POLICE [2023] NZHC 1660

Citation

[2023] NZHC 1660
Court

High Court

The offending was at least of moderate-to-high gravity (very high speeds, high intoxication including MDMA, evasion of police, and serious injuries to passengers); the direct and indirect consequences of conviction were speculative and low and not out of proportion to the gravity; therefore a discharge without conviction would not have been available under ss106-107 and no miscarriage of justice arose from any alleged judicial or counsel error; appeal dismissed.
10 Jun 2021

CAMPBELL v NEW ZEALAND POLICE [2021] NZHC 1377

Citation

[2021] NZHC 1377
Court

High Court

The High Court upheld the District Court: applying the three-step test the offending was of low gravity, the appellant failed to establish a real and appreciable risk that conviction would cause immigration or employment consequences, and therefore the consequences were not out of all proportion to the gravity; discharge without conviction was not warranted and the appeal is dismissed.
12 Nov 2020

M v R [2020] NZHC 3003

Citation

[2020] NZHC 3003
Court

High Court

On rehearing the court found the offending to be moderately serious with multiple aggravating features and insufficient evidence that the direct and indirect consequences of conviction would be out of all proportion to that gravity; any reference to the ISR did not produce a material error requiring disturbance of the outcome, so the appeal is dismissed and the sentence of nine months' supervision is upheld.
29 May 2020

INGLE v AUCKLAND COUNCIL [2020] NZHC 1164

Citation

[2020] NZHC 1164
Court

High Court

Conviction is not a prerequisite to an order for destruction under s57(3); the statutory text and the 2003 amendments indicate the court must consider the immediate circumstances of the attack and, absent exceptional circumstances rendering repeat risk remote, order destruction; applying that test here the circumstances were not exceptional and the destruction order and refusal to discharge without conviction were correctly made.
3 Feb 2020

SHI v NZ POLICE [2020] NZHC 59

Citation

[2020] NZHC 59
Court

High Court

The High Court admitted the affidavit of an Australian migration agent as reliable fresh evidence and found there was a real and appreciable risk the appellant would be refused entry to Australia and that this would substantially impair his businesses; the direct and indirect consequences of conviction were therefore out of all proportion to the low to moderate family violence offending, so the convictions were quashed and the appellant discharged without conviction while reparation orders were left intact.
24 Sept 2019

FENG v NEW ZEALAND POLICE [2019] NZHC 2418

Citation

[2019] NZHC 2418
Court

High Court

The District Court judge correctly undertook the required overall assessment of gravity including mitigating factors, admitted the additional affidavit as further evidence but found the asserted employment and travel consequences speculative and not a real and appreciable risk; therefore those consequences are not out of all proportion to the low-to-moderate gravity of the common assault and the conviction must stand.
23 Oct 2018

MODISE v POLICE [2018] NZHC 2737

Citation

[2018] NZHC 2737
Court

High Court

The Court upheld the District Court: the offending was of moderate seriousness because it involved repeated abusive calls and harassment of an intimate partner with power/control elements and prior related offending; there was no demonstrated real and appreciable risk of job loss because the employer must make an evaluative decision and already knew of the conduct; therefore the consequences of a conviction were not out of all proportion to the gravity of the offence and discharge without conviction was rightly refused.
4 Dec 2017

LOPES v NZ POLICE [2017] NZHC 2991

Citation

[2017] NZHC 2991
Court

High Court

The High Court dismissed the appeal because the offending was deliberate, premeditated and not minor; the judge's credibility findings were open on the evidence; and the direct and indirect consequences of conviction were not out of all proportion to the gravity of the offence given the discretionary role of the Valuers Registration Board and lack of evidence that conviction would inevitably cause deregistration or disproportionate employment consequences.