What Is a Discharge Without Conviction?
A discharge without conviction is a decision made by the court under Section 106 of the Sentencing Act 2002. When granted, the offender avoids having a conviction recorded against them, even though guilt has been established. The primary goal is to ensure that individuals are not burdened with the stigma and practical difficulties (such as impacts on employment or travel) that typically accompany a criminal conviction.
The Legal Basis
The legal framework for a discharge without conviction is found in the Sentencing Act 2002. Section 106 provides the court with the discretion to impose this outcome when it is considered that recording a conviction would lead to consequences disproportionate to the gravity of the offence. This discretion is a balancing act between upholding justice and recognising the personal and social implications that a conviction can have. Section 107 provides the court with guidance on when to discharge an offender. This section states that the court must not discharge an offender without conviction unless the court is satisfied that the “direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.”
Criteria Considered by the Court
When determining whether to grant a discharge without conviction, New Zealand courts consider several key factors:
- Seriousness of the Offence (also referred to as Gravity of the Offence): The inherent severity and context of the offence are primary considerations. The Court will not only look at the seriousness of the act but also how the offending came about, personal circumstances of the offender and if the offender has taken any steps since the offending which show remorse.
- Consequences of a Conviction: The court evaluates the direct and indirect effects of a conviction on the offender’s life. This includes potential impacts on employment prospects, the ability to travel, and the social stigma that may follow a criminal record.
- Proportionality: The court must balance the need for accountability with the principle that the punitive consequences should not outweigh the offence itself. If the harm caused by a conviction is disproportionately high relative to the offence, a discharge may be appropriate.
These criteria ensure that the decision to grant a discharge is both fair and tailored to the individual circumstances of each case.
The Application Process
Applying for a discharge without conviction involves a detailed and sometimes complex process. Key elements include:
- Preparation of Evidence: Offenders must provide robust evidence that the consequences of a conviction would be severe. This may include documentation such as employer statements, travel plans, or other records demonstrating the potential negative impact of a conviction.
- Submission of Documentation: The application often involves filing affidavits or letters that outline why the personal consequences of a conviction would be unduly harsh. This documentation is critical in persuading the court that a discharge is the most just outcome.
- Court Discretion: Ultimately, the decision rests with the court. Even with a well-prepared application, the final outcome depends on how the court weighs all the evidence and circumstances.
Practical Examples
Employment Impact
For many individuals, the most immediate concern is the effect a conviction can have on their career. For instance, someone charged with a minor offence might face the loss of employment or find it difficult to secure future job opportunities if a conviction is recorded. In these cases, the court may determine that the long-term career repercussions outweigh the seriousness of the offence, making a discharge without conviction the more proportionate outcome. Some offenders will need to report convictions to a professional registration board (such as Medical Council, Teacher Registration, Law Society) and will therefore seek a discharge to avoid reporting and the possible risk of losing registration. The Courts will commonly reject this argument as the Court is reluctant to intervene where these boards have a process in place to consider disciplinary action (if any) in the situation of convictions.
Travel and Immigration
A criminal conviction can also complicate travel plans or even affect immigration status. For those planning to travel abroad or apply for visas, the prospect of a criminal record can be a significant deterrent. Documented evidence of such potential restrictions can play a critical role in the court’s decision-making process, supporting the case for a discharge.
Benefits of bringing a S106 Application
- Avoiding Stigma: A discharge without conviction helps individuals avoid the lifelong stigma associated with a criminal record.
- Improved Opportunities: Without the burden of a conviction, individuals are more likely to maintain employment and pursue further opportunities without hindrance.
- Focused Rehabilitation: It offers a chance for rehabilitation and reintegration into society, acknowledging that some offences may not warrant a formal conviction.
Limitations to the Application.
- Court’s Discretion: The grant of a discharge is not automatic. The decision is entirely at the discretion of the court and depends on the unique circumstances of each case.
- Conditional Discharges: In some cases, the court may grant a discharge subject to certain conditions. Failure to comply with these conditions can result in the discharge being revoked, with a conviction then recorded.
- Separate Obligations: A discharge does not exempt an individual from their duty to report an incident to a relevant professional body or government agency if they are legally or ethically required to do so under separate regulations, policies, or contractual obligations
In addition, there are certain kinds of offences where discharges are more difficult to obtain such as drink driving. The Courts have taken the stance that drink driving is inherently serious. Therefore, the offender has a higher threshold to meet to show that a conviction is disproportionate to the offence. In that situation, the offender will need to have clear evidence of the consequences to persuade the Court.
Alternative Remedy Under the Clean Slate Act
For individuals who are ineligible for a Discharge Without Conviction, the Criminal Records (Clean Slate) Act 2004 provides a potential alternative means of mitigating the impact of a conviction. Under this legislation, individuals convicted of relatively minor offences—provided they were not sentenced to imprisonment and the offence does not fall within a specified category (such as sexual offences)—will have their conviction automatically concealed after a period of seven years, provided they have not committed any further offences within that timeframe.
Once eligible under the Clean Slate Act, an individual may lawfully state to employers and other parties within New Zealand that they have no criminal convictions. However, this legislation applies solely within New Zealand and does not affect international obligations, including disclosures required by foreign jurisdictions or immigration authorities.
Legal Representation
Given the nuanced nature of the application, having experienced legal counsel is highly advisable. A lawyer can help present the case effectively, ensuring that all mitigating factors are clearly articulated.
Conclusion
A discharge without conviction is a compassionate tool within New Zealand’s criminal justice system. By allowing courts to avoid the collateral consequences of a conviction for less serious offences, it helps balance the scales between justice and the long-term well-being of individuals. However, the process demands a thorough understanding of legal criteria and often necessitates the support of experienced legal counsel to navigate effectively.
For those facing charges and considering this option, seeking legal advice is crucial to understanding whether a discharge without conviction is appropriate and how best to prepare a successful application.
At Burley Castle Hawkins Law, we offer expert legal guidance to help individuals navigate this complex process, ensuring they have the strongest possible chance of a successful application.
By Michael Ritter | Solicitor | 07 571 8076 | michaelr@bchlaw.co.nz
The information contained in this article is provided for informational purposes only and should not be construed as legal advice on any subject matter.
