New Zealand criminal practitioners handling Section 106 discharge without conviction applications face a rigorous evidentiary threshold. Under Section 107 of the Sentencing Act 2002, the court is strictly barred from granting a discharge unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. Satisfying this statutory proportionality test requires meticulously prepared evidence, not speculative assertions from the bar.
The leading authority, Blythe v R [2011] NZCA 190, establishes that the proportionality test demands an objective assessment of both offence gravity and consequences. Defence counsel must ensure that all claims regarding employment loss, professional standing, or deportation risks are underpinned by robust, verifiable documentation. A well-prepared sentencing bundle containing detailed affidavits, employer letters, and expert opinions is the cornerstone of a successful application.
For a comprehensive procedural guide, see our Section 106 discharge without conviction matter plan which sets out the end-to-end workflow from initial retainer through to post-sentencing disclosure obligations.
Establishing Offence Gravity
The first limb of the Section 107 inquiry focuses on the gravity of the offending. Practitioners commonly make the fatal error of focusing entirely on the severe consequences their client faces without first establishing that the offending itself rests at the lower end of the gravity spectrum. The graver the offence, the more severe the consequences must be to satisfy the "out of all proportion" threshold.
Evidence mitigating offence gravity should comprehensively address the defendant's culpability, the actual harm caused, and their personal rehabilitative steps. Counsel should compile evidence demonstrating a clean prior criminal history (or convictions that are spent under the Criminal Records (Clean Slate) Act 2004) and contextualise the offending against comparable sentencing tariff cases. Furthermore, certificates of completion for drug, alcohol, or anger management counselling, alongside proof of voluntary reparation to the victim, serve as compelling evidence that the gravity has been effectively reduced post-offence.
When drafting your submissions, you must systematically tie these mitigating factors together. Our s 106 Sentencing Act 2002 workflow checklist outlines exactly how to structure your gravity analysis before introducing the consequences limb.
Evidencing Direct and Indirect Consequences
Courts have repeatedly stressed that vague or speculative consequences are insufficient to meet the Section 107 threshold. If the defence asserts that a conviction will cost the defendant their career or cause deportation, they must prove it.
Employment and Professional Licensing
If a client faces the loss of their job or their professional standing, an affidavit from the client alone is rarely sufficient. Practitioners must obtain an employer letter or an affidavit from the employer stating the specific clause in the employment agreement that mandates termination upon conviction. The employer must explicitly confirm that they will terminate the defendant's employment if a conviction is entered, but will retain them if a Section 106 discharge is granted.
For regulated professions, the evidentiary burden is similarly strict. Following Meyrick v R [2021] NZCA, courts require direct confirmation from the relevant professional body (such as the New Zealand Law Society, the Teaching Council, or the Medical Council) detailing how a conviction impacts the practitioner's fit-and-proper status. For a targeted approach to these specific risks, consult our professional licensing consequences workflow to understand the requirements under acts like the Health Practitioners Competence Assurance Act 2003.
Immigration and Travel Bans
For defendants who are not New Zealand citizens, a conviction can trigger devastating immigration consequences, including deportation under Section 161 of the Immigration Act 2009. The Court of Appeal in Z v R [2012] NZCA 599 confirmed that immigration consequences constitute qualifying indirect consequences under Section 107.
To rely on immigration consequences, counsel must procure a formal opinion letter from a licensed immigration adviser (IAA) or a specialist immigration lawyer. This letter must outline the client's current visa status, outline the precise deportation liability threshold, and explain any travel bans - such as failure to pass the Australian character test or ineligibility for the US ESTA programme. Relying on the client's own interpretation of immigration law will inevitably lead to the application's dismissal. We recommend reviewing our dedicated Section 106 immigration and deportation guide for detailed steps on procuring this expert evidence.
Drafting the Defendant Affidavit
The defendant's affidavit is arguably the most critical document in the sentencing bundle. It provides the sworn factual foundation upon which all subsequent submissions rely. The affidavit must be drafted in plain, first-person language and should meticulously detail the defendant's personal circumstances, family background, and cultural context.
Key elements to include in the affidavit:
- Personal Background: Family responsibilities, financial obligations, and community involvement.
- Context of the Offending: Acknowledgment of wrongdoing, expression of genuine remorse, and explanation of any out-of-character context without minimising the offending.
- Rehabilitative Steps: Specific details regarding counselling, rehabilitation courses attended, and efforts made to make amends.
- Consequences: A precise, quantified account of how a conviction will impact their life. If claiming financial loss, provide exact figures based on projected career trajectories or lost contracts. If claiming travel restrictions, detail why travel to specific jurisdictions is an absolute necessity for their family or career.
It is vital to ensure that the affidavit aligns perfectly with the independent evidence gathered. Any inconsistencies between the defendant's sworn statements and the employer's letter or immigration expert's opinion will critically undermine the application's credibility. Refer to our comprehensive discharge without conviction practitioner guide for a checklist of mandatory affidavit components.
Structuring the Submissions and the Fallback Position
Once the evidence is assembled, drafting the written submissions requires a strategic layout. Submissions must open with the gravity analysis, expressly arguing why the offence sits at the low end of the spectrum. Only then should the submissions pivot to the consequences, detailing each category (employment, immigration, travel, professional licensing) with direct citations to the supporting affidavits and expert letters.
Finally, the proportionality test from Blythe v R must be applied, actively drawing the comparison between the minimal gravity and the disproportionately severe consequences. Crucially, practitioners must always prepare a fallback sentencing memorandum. If the sentencing judge declines the Section 106 application, counsel must immediately pivot to arguing for the least restrictive sentence available, applying all relevant mitigating discounts under Section 9Q of the Sentencing Act 2002. Failing to prepare a fallback position leaves the client exposed to a harsher sentence without adequate mitigation representation.
Using the Matter Plan
To effectively run a Section 106 application, criminal defence practitioners must rigorously manage the evidentiary gathering phase. Ensuring that every assertion is backed by sworn affidavits, employer documentation, and expert immigration or professional body opinions is the difference between a successful discharge and a career-ending conviction for the client.
To assist with managing these complex requirements, use our core Discharge Without Conviction (s 106) Matter Plan, which provides a comprehensive, stage-by-stage workflow from the initial conflict check through to the final sentencing hearing and post-sentencing disclosure advice.
If your client's case involves specific high-stakes consequences, integrate our specialized procedural forks:
- For non-citizens and visa holders facing deportation or travel bans, implement the [Immigration and Deportation Consequences fork](/matter-plans/nz/national/criminal-law/discharge-without-conviction-application-section-106-sentencing-act-2002/immigration-and-deportation-consequences-s-106-application).
- For regulated professionals facing mandatory reporting or licence cancellation, utilize the [Professional Licensing Consequences fork](/matter-plans/nz/national/criminal-law/discharge-without-conviction-application-section-106-sentencing-act-2002/professional-licensing-consequences-s-106-application).
By strictly adhering to these workflows, practitioners can construct a robust, evidence-backed proportionality argument that maximizes the prospects of securing a deemed acquittal under Section 108 of the Sentencing Act 2002.