1. The Three-Step Legal Test in Section 107
The leading New Zealand appellate authorities (including R v Hughes [2008] NZCA 546 and Z v R [2012] NZCA 599) set out a strict three-step framework that every Judge must follow:
Offence Gravity
The court assesses the seriousness of the offending, taking into account any mitigating personal factors (early guilty plea, remorse, reparation).
Consequences
The court identifies all direct and indirect consequences that will follow if a formal conviction is entered (job loss, visa deportation, travel bans).
Proportionality
The court asks: Are those consequences out of all proportion to the gravity of the offence? If yes, the court exercises its discretion to discharge.
2. What Counts as "Disproportionate Consequences"?
New Zealand courts have made it clear that mere embarrassment, social stigma, or general difficulty in finding employment is not enough. The consequences must be tangible, specific, and supported by concrete evidence.
Common grounds that succeed when properly presented include:
- Professional Licensing Disqualification: Automatic loss of registration or employment for lawyers, doctors, accountants, nurses, or security personnel.
- Loss of Current Employment: Letters or affidavits from an employer confirming that a conviction mandates immediate termination under employment contract terms.
- Immigration & Visa Status: Immediate risk of deportation or loss of residency under the Immigration Act 2009.
- International Travel Restrictions: Essential business travel requirements (such as frequent entry into the United States, Australia, or Canada) that would be permanently barred.
3. How Chris Nicholls Law Prepares a Section 106 Application
A Section 106 application cannot succeed on oral assertions alone. In our 30+ years of litigation experience, successful discharges depend on meticulous preparation of documentary evidence:
- Formal Notice of Application: Filed in advance with detailed legal submissions citing current District and High Court precedents.
- Defendant's Sworn Affidavit: A detailed personal narrative explaining the circumstances of the offence, genuine remorse, and personal background.
- Third-Party Evidentiary Affidavits: Letters from employers, immigration advisers, professional bodies, or community organizations verifying the exact fallout of a conviction.
- Rehabilitation Evidence: Completion of voluntary community work, alcohol/drug counseling, anger management courses, or payments of emotional harm reparation to the victim.
Facing Charges and Need to Keep a Clean Record?
A conviction is permanent. If the consequences to your career or immigration status would be devastating, contact Chris Nicholls Law for a confidential case assessment.