New Zealand Case Law: Decisions & Judgments

Topic

Section 107 sentencing act 2002

Legal area

Court

2 Nov 2021

GASU v NEW ZEALAND POLICE [2021] NZHC 2948

Citation

[2021] NZHC 2948
Court

High Court

The High Court upheld the District Court: the offending was properly assessed as low to moderate after mitigation; the appellant failed to establish that a conviction would causally and materially worsen his immigration prospects or lead to deportation such that the consequences would be out of all proportion to the gravity of the offending; therefore refusal to discharge was correct and the appeal was dismissed.
2 Jul 2021

VANDENBRINK v NEW ZEALAND POLICE [2021] NZHC 1630

Citation

[2021] NZHC 1630
Court

High Court

The High Court held the direct and indirect consequences of conviction were not out of all proportion to the gravity of the dangerous driving offence; the District Court was right to refuse discharge under s106/s107 and was not required to substitute a community-based sentence under s94; appeal dismissed.
19 Apr 2021

POLICE v HEAD [2021] NZHC 809

Citation

[2021] NZHC 809
Court

High Court

The High Court found the District Court Judge made material errors of law by taking irrelevant or unsupported considerations into account (including references to a 'puritanical society', workplace pornography analogies and a gender generalisation) and by concluding there was a real possibility the employer would seek termination without evidential basis; on re‑assessment the consequences of conviction were not out of all proportion to the low-to-moderate gravity offending, therefore the discharge without conviction was quashed and the respondent was convicted and discharged.
12 May 2020

R v RASILA [2020] NZHC 965

Citation

[2020] NZHC 965
Court

High Court

The court found the overall gravity of the offending to be moderate-to-high and the direct and indirect consequences of conviction to be moderate-to-high, therefore the consequences were not out of all proportion to the gravity of the offence and discharge under s 106 was not available; the application was declined.
27 Sept 2019

HAMMOND v POLICE [2019] NZHC 2452

Citation

[2019] NZHC 2452
Court

High Court

The High Court held the District Court had been influenced by disputed material outside the summary of facts and thereby overstated the gravity of the offending; treating the offence (common assault with no injury by a police officer) as low gravity after mitigation, and finding there was a real and appreciable increased risk that a conviction would materially influence Police employment proceedings, the Court concluded that a conviction would be out of all proportion to the low gravity of the offending and therefore allowed the appeal and granted a discharge without conviction.
10 May 2019

FELL v NEW ZEALAND POLICE [2019] NZHC 333

Citation

[2019] NZHC 333
Court

High Court

The appeal was dismissed because, although the offending was at the lower end of the spectrum, it was not insignificant and the appellant failed to prove a real and appreciable risk that the direct and indirect consequences of conviction (notably travel restrictions) would be out of all proportion to the gravity of the offending; therefore discharge without conviction was not available.
10 Apr 2019

NEWING v NZ POLICE [2019] NZHC 772

Citation

[2019] NZHC 772
Court

High Court

The evidence did not establish a real and appreciable risk that the direct or indirect consequences of conviction (inability to travel or loss of employment) would be out of all proportion to the moderately serious offence of driving with excess breath alcohol; alternative entry processes and lack of cogent employer evidence mean s 107 was not met, no miscarriage of justice shown, and leave to bring a second appeal is dismissed.
5 Apr 2019

MACDONALD v R [2019] NZCA 91

Citation

[2019] NZCA 91
Court

Court of Appeal

The Court upheld the District Court's assessment that the offending was moderately serious and that the evidence did not establish the direct and indirect consequences of conviction (notably US entry issues) would be out of all proportion to the gravity of the offending; accordingly s107 was not satisfied and discharge without conviction was properly refused, and permanent name suppression was not justified.