Legal Project Management Plan & Checklist
Section 106 of the Sentencing Act 2002 lets NZ defence lawyers obtain a discharge without conviction where consequences outweigh offence gravity.
What is the test for a Section 106 discharge without conviction in New Zealand?: Under s 107 of the Sentencing Act 2002, the court must discharge the defendant without conviction if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. Gravity is assessed by reference to the nature of the offending, the defendant's level of culpability, harm caused, and any rehabilitative steps taken. Consequences assessed include loss of employment, professional licence cancellation, immigration deportation liability, and travel restrictions. The leading Court of Appeal authority is Blythe v R [2011] NZCA 190. A discharge under s 106 is deemed to be an acquittal under s 106(2) but may still appear in criminal record checks in some contexts.
What evidence is needed to succeed in a Section 106 discharge application?: Practitioners must file a formal sentencing bundle containing: a defendant affidavit setting out personal circumstances, rehabilitative steps, and the specific consequences of conviction; an employer letter or affidavit confirming employment loss or licensing risk; an immigration lawyer or advisor letter if deportation or travel bans are at stake; evidence of the professional body's fit-and-proper rules if a licence is at risk; any community or character references; and detailed written submissions analysing offence gravity against the proportionality of consequences.
Professional licence cancellation is a compelling s 106 ground for NZ defendants who are doctors, lawyers, nurses, teachers, or real estate agents.
Deportation liability and travel bans are among the most powerful s 106 grounds for NZ defendants with visa or citizenship status at risk.
Jurisdiction: Applications are made in the New Zealand District Court for the majority of criminal matters, or the High Court for more serious offences. The application is filed as part of the sentencing process under Sentencing Act 2002 ss 106-108 and heard by the sentencing judge.
The Process at a Glance: The matter begins at retainer with a conflict check and review of the charge, plea, and whether s 106 is jurisdictionally available (no minimum sentence applies). The lawyer then assesses offence gravity, identifies all direct and indirect consequences, and gathers evidence including the defendant affidavit, employer letter, and any immigration or professional body documentation. A sentencing bundle is compiled and filed with written submissions arguing proportionality. The sentencing hearing is attended and oral submissions presented. If granted, the discharge is an acquittal and the client is advised on disclosure obligations in employment and other contexts.
Key Legislation and Case Law: Sentencing Act 2002 s 106 (power to discharge without conviction); s 107 (test - consequences out of all proportion to gravity); s 106(2) (a discharge under s 106 is deemed to be an acquittal); s 108 (conviction and discharge: the offender is convicted and then discharged without sentence, with no deemed acquittal); s 7 and s 8 (sentencing purposes and principles). Criminal Procedure Act 2011 (procedural framework). Key cases: Blythe v R [2011] NZCA 190 (leading Court of Appeal authority on the proportionality test); Z v R [2012] NZCA 599 (the three-step approach of gravity, consequences and proportionality); Bolea v R [2024] NZSC 46 (the risk of deportation is a consequence of conviction to be weighed under s 107). Immigration Act 2009 s 161 (deportation liability of residence class visa holders, set by the maximum penalty for the offence and how long the person has held residence).
Further Reading
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| Matter numberⓘ | matter.matterNumber | text | Required | inheritedmatter-core |
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| Matter status | matter.status | text | - | inheritedmatter-core |
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| Client name | matter.clientName | text | Required | inheritedmatter-core |
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