Discharge Without Conviction NZ

A criminal conviction can have significant and wide-ranging consequences in your life. Depending on the circumstances, a conviction can lead to immigration (deportation) or loss of employment. It can also include an inability to progress in an applicant’s current job, attain a permanent resident visa, or obtain employment in general. Mental health concerns are other common residual results of a criminal conviction.

A discharge without conviction occurs when the court decides not to convict you even if you plead guilty or are found guilty, making it a good option for those who want to keep their criminal record clean despite making a decision they regret. In most circumstances, your case will be adjourned while you make your application for a discharge without conviction, and this application may involve undergoing rehabilitation, counselling or other actions that display your regret and acceptance to the court, such as making an early guilty plea or completing voluntary community work.

How does a discharge without conviction work?

The court will not grant a discharge without conviction unless the presiding Judge or Community Magistrate is satisfied that the direct and indirect consequences of a conviction for the applicant would be out of all proportion to the gravity of the offence. Essentially, the court needs to decide that the domino effect of a conviction on your life, on balance, is too big a punishment for the offence committed. It is a high threshold to reach.

At the hearing, the presiding Judge or Community Magistrate will conduct a balancing exercise and determine the application on its merits. This is often based on the affidavit evidence that I file on the applicant’s behalf in advance of the hearing, and it’s important to note that a guilty plea must be entered by the applicant to the charge before a future application hearing can be sought.

The gravity of the offence

A successful application hinges on the idea of the gravity of the offence, which is broken down into two parts. First, the court will look at any aggravating and/or mitigating factors of the offending. Examples of aggravating factors relating to offending for a drink driving charge may be a high breath alcohol reading or erratic/dangerous driving. Mitigating factors may be, conversely, a low breath alcohol reading, being a first-time offender, cooperating with the police, or being genuinely remorseful.

The second part of the gravity of the offence relates to any aggravating and/or mitigating factors of the offender (applicant). Examples of aggravating factors relating to the offender may be offending on bail, being subject to an existing sentence, or breaching a police safety order (PSO). Mitigating factors that the court will consider include guilty pleas (including how early they are entered), remorse, the likelihood of reoffending, the victim’s perspective (if applicable), any consequence already suffered by way of reparation, community work or publicity, youth, previous good character (lack of convictions), completion of any relevant rehabilitative courses (CADS or stopping violence programmes) and any voluntary work that the applicant completes.

When determining the gravity of the offence, the presiding Judge or Community Magistrate will adopt a starting point. This may be “moderate” but will differ depending on the seriousness and characteristics of the charge. The applicant aims to lower that starting point through the mitigating factors noted above. I will work with you to formulate a plan to make a case to the Judge or Community Magistrate to reduce the gravity as much as we can.

The most common application advanced is the potential for individuals to lose their employment should they be convicted of a specific type of offence. The applicant will provide affidavit evidence, which is often supported by their employer or manager, to corroborate the impact a conviction will have on them. I will draft these affidavits on behalf of both the applicant and their employer using the information provided by each.

The consequences of a conviction

As stated above, the consequences of a conviction for an applicant can be wide-ranging and may include, on the higher end, immigration (deportation) or loss of employment. It can also include an inability to progress in an applicant’s current job, attain a permanent resident visa, or obtain employment in general. These are often known as “general consequences”. At the lower end, but still relevant, is the issue of mental health. The most common application advanced is the potential for an individual to lose their employment should they be convicted of a criminal offence. Usually, violence or dishonesty convictions are seen as more serious than traffic convictions. The applicant will provide affidavit evidence, and this is often supported by their employer or manager to corroborate the impact a conviction will have on them.

An applicant may have one or many consequences if convicted. The aim is to satisfy the presiding Judge or Community Magistrate that the consequences of a conviction for an applicant are at the higher end and out of all proportion to the gravity of the offence. If this threshold has been met, the Judge or Community Magistrate has jurisdiction to exercise their discretion to discharge an applicant without conviction.

To find out more about a discharge without conviction in NZ, contact me now through the contact button below.