R v Hughes

Case [2008] NZCA 546


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IN THE COURT OF APPEAL OF NEW ZEALAND

CA228/2008
[2008] NZCA 546

THE QUEEN

v

ANDREW ZOLTAN HUGHES

Hearing:15 October 2008

Court:O'Regan, Potter and Fogarty JJ

Counsel:R Gould for Appellant


G H Allan and K Bicknell for Crown

Judgment:16 December 2008 at 11.30 am

JUDGMENT OF THE COURT

A        THE QUESTION STATED FOR THIS COURT:

Has s 107 of the Sentencing Act 2002 created a threshold for the exercise of the discretion to discharge without conviction that is different from the test expressed in Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) and in Police v Roberts [1991] 1 NZLR 205 (CA)?

is answered:

The wording of s 107 clearly adopts the test applied in both Turner and Roberts and we do not believe s 107 was intended to materially alter the threshold.  But in considering whether the threshold test in s 107 has been met and in the exercise of the discretion under s 106, Judges should focus on the requirements of the Sentencing Act 2002, rather than on cases under statutory provisions that have now been repealed.

B        The appeal is dismissed.

__________________________________________________________________

REASONS OF THE COURT
(Given by Potter J)

Table of Contents

Para No

Introduction  [1]
Sections 106 and 107 Sentencing Act 2002  [6]
Turner and Roberts [13]

HAS S 107 CHANGED THE JUSTIFYING PRINCIPLE OF DISPROPORTIONALITY

for a discharge without conviction?  [20]

HAVE THE PARAMETERS WITHIN WHICH THE DISPROPORTIONALITY

principle operates been changed by s 107?  [25]
Onus of proof  [42]
The sentence appealed  [54]
           Background facts  [55]
           Appellate approach  [63]
           The Judge’s reasoning  [67]
           Submissions for appellant  [75]
           Submissions for the Crown  [77]
           Discussion and conclusion  [80]
Result  [86]

Introduction

[1]       On 4 August 2008 this Court granted special leave to appeal on the question:

Has s 107 of the Sentencing Act 2002 created a threshold for the exercise of the discretion to discharge without conviction that is different from the test expressed in Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) and in Police v Roberts [1991] 1 NZLR 205 (CA)?

[2]       Both the appellant and the Crown take the position that the test is unchanged.  The Crown added the rider that to the extent that Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) and Police v Roberts [1991] 1 NZLR 205 (CA) might have countenanced circumstances other than disproportionality between the gravity of the offending and adverse consequences of a conviction as properly justifying exercise of the discretion, disproportionality is the only justification under s 107.

[3]       The real point of difference between the appellant and the Crown is the application of the disproportionality test in the circumstances of this case by the sentencing Judge in the District Court and by the High Court on appeal. 

[4]       The appellant was found guilty following a defended hearing in the District Court at Wellington on two charges under the Summary Offences Act 1981, namely following a complainant knowing that his…

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R v Hughes [2008] NZCA 546
Case
[2008] NZCA 546
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CaseChat Overview and Summary

In the case of R v Hughes, the New Zealand Court of Appeal considered whether Section 107 of the Sentencing Act 2002 had altered the threshold for the exercise of the discretion to discharge without conviction. The court concluded that Section 107 merely confirmed the principle of disproportionality between the gravity of the offence and the consequences of a conviction, as previously established in Fisheries Inspector v Turner and Police v Roberts. The court held that the wording of Section 107 clearly adopts the test applied in Turner and Roberts and that Section 107 was not intended to materially alter the threshold. However, when considering whether the threshold test in Section 107 has been met and in the exercise of the discretion under Section 106, judges should focus on the requirements of the Sentencing Act 2002, rather than cases under statutory provisions that have now been repealed. The appeal against sentence was dismissed.

Orders

Orders of the court

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Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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