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4 min read - May 11, 2022


The Sentencing Act has various purposes it seeks to fulfil, some of these being the need to denounce conduct of offenders and deter others from committing same or similar offences and achieving this by a form of punishment. But what happens when the punishment is disproportionate to the offending?

The New Zealand legal system is intended to deliver punitive justice, in order to encourage positive behavioural change. However, in crimes such as possession of drug paraphernalia, low level violence, and some driving offences – among others – the circumstances are not always clear-cut. Offenders can be left facing prospective punishments which far outweigh the seriousness of the crime.


In such situations, says Julie Ding, partner at K3 Legal, an application for a s106 – or a discharge without conviction – may be a more appropriate option. It’s a provision in the Sentencing Act (2002), Julie explains.


“It’s a discretionary application that the court may grant if the direct or indirect consequences of a conviction outweigh the gravity of the original offence,” says Julie.


Harriet Krebs, solicitor at K3 Legal, points to a recent case handled by K3 legal as an example of effective use of s106 in action.


“We had a client who started his own company and employed two others,” says Harriet. “Unfortunately, one night out with a group of friends ended in a fight and our client injured another bar patron and caused bleeding to the victim’s brain.”


A large number of people were involved in the bar fight, but only one person – the client in question – was charged. K3 Legal’s client was charged with common assault, which could have resulted in a serious mark on his criminal record if convicted.


“Having a common assault on your criminal record can be extremely restricting for employment opportunities and development,” says Ding. “Accordingly, we applied for a discharge without conviction. Given the client’s lack of history of violent behaviour, setting up his business and his evident contrition, we thought he would be an ideal candidate.”


K3 Legal subsequently obtained two expert reports/affidavits from top individuals from the same industry to speak about the impacts of a conviction on the running and success of the defendant’s company. This was crucial; indeed, the key difference between a successful and unsuccessful s106 application is the use of expert opinion to confirm the consequences of a conviction.


“They both confirmed that with the conviction, the defendant would suffer a loss of employment contracts and the inability to obtain particular qualifications needed to take his company to the next level,” says Julie. “These consequences wouldn’t just affect the defendant but would significantly affect the company and its employees.”


There are restrictions; Harriet notes that it can typically only be used in the case of a first offence. Additionally, the defendant must admit to the charge and concede wrongdoing.

“The defendant also needs to demonstrate that they have taken positive steps to rehabilitate themselves and compensate the affected person,” says Harriet. “Counselling, rehabilitation, and/or community volunteering are some of the most common ways a defendant can go about this.”


In tandem with expert witnesses, rehabilitation efforts or voluntary services by the defendant are considered in order to show their remorse and to help with the success of their application. In some cases, the extent of rehabilitation may be the deciding factor. Similarly, it doesn’t mean it’s entirely without consequence either, Julie notes.


“The court will likely order other reparations, too,” says Julie. “In the case of a driving offence, for example, the conviction is not recorded but the driver’s license may still be disqualified.”


Given the wider context of the bar fight, the client’s rehabilitation efforts, the donation made to St Johns by the defendant and the expert affidavits, the application was successful. However, the defendant was also required to pay reparation to account for the victim’s emotional harm.


“It was an outcome that all of us were happy with,” says Harriet. “The client has compensated those affected, has a low risk of recidivism and is able to continue with his business. In this case, allowing a second chance will likely have wider benefits for New Zealand’s society and still be in line with the purposes of sentencing.”


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