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on the requirements of the Sentencing Act 2002, rather than on cases under statutory provisions that have now been repealed.
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:
[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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Hughes [2008] NZCA 546
Case
[2008] NZCA 546
Decision Date
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.