As humans we all make mistakes. Most mistakes carry little consequence. More serious mistakes may cost us money or may result in a criminal conviction.
The consequence of some criminal convictions may out-weigh the crime itself. In recognising this the law allows the Courts to discharge an offender without conviction.
A discharge without conviction is a discretionary course of action contained in the Sentencing Act 2002 that the Court may adopt to avoid imposing a conviction. A discharge without conviction is deemed an acquittal.
A discharge without conviction may only be granted as part of the sentencing process. An Order may only be made if the offender is found or pleads guilty. The process is therefore separate from the trial process. It therefore provides an opportunity for a defendant to avoid a conviction irrespective of the strength of the evidence or any admission of guilt.
However, the Court’s discretion to discharge without conviction is limited and an offender may not be discharged unless the offender meets the mandatory statutory test. Once the test is satisfied, there are no strict rules as to the exercise of the discretion and each case will depend on its own facts and merits.
Any offender liable to be convicted may be discharge without conviction unless the Court is required by Statute to impose a minimum sentence for the offence. When applying for discharge without conviction there are rules detailing the procedure when dealing with the application. The application must also provide minimum details and particulars.
There will always be some cases where a discharge without conviction is appropriate. However, the Police may of course oppose an Application for Discharge. Previous convictions, regardless whether or not they are similar offences, are no bar to a Court discharging an offender without conviction. Nor does a previous discharge preclude an offender to seek a subsequent discharge on a second offence.
The Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequence of a conviction would be out of all proportion to the gravity of the offence. The test therefore being:
- Identify the gravity of the offending by reference to the facts of a particular case; and
- Identify the direct and indirect consequences of the conviction; and
- Determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending.
Therefore, each case will be determined on its particular facts. Serious offending therefore is less likely to result in a discharge without conviction compared to minor offending.
Drink driving has generally been considered by the Courts as a serious offence despite the low maximum penalty.
Things the Court does take into account include effects on overseas travel, the likelihood the conviction would affect someone’s career, licencing disqualification may affect someone’s employment, ability to remain in New Zealand, mental health, and age of offender.
In a Court of Appeal decision, the Court held that there could have been no justification for discharging an offender without conviction where there was a deliberate violence arising out of what is commonly known as road rage even for a single blow. Further, if an offender has a very good reputation and character, certain levels of violence are not tolerated by the Courts. It is also noted that discharges are less likely where an offender has not pleaded guilty. It appears the Courts are not supportive of evidence where the offender shows no remorse. Previous discharges and diversions are relevant to whether or not the Court should exercise its discretion to discharge.
The ability for the Courts to provide a discharge without conviction provides an important social outcome where clearly the consequences of the crime far outweigh the act. When one makes a mistake without serious consequences or violence the Courts are provided with the tool to give the public a second chance.