Discharge without conviction — s 106 of the Sentencing Act 2002: who gets it?

The legislative framework

Section 11(1)(a) of the Sentencing Act 2002 requires that the Court consider, before entering a conviction or imposing sentence, whether the defendant may be more appropriately dealt with by way of a discharge without conviction.

Section 106 provides the legislative authority for the Court’s discretion to discharge an offender without conviction, and confirms that a discharge without conviction is deemed to be an acquittal.

Section 107 sets out the test the Court must apply. It provides that the Court must not discharge an offender without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. This is a deliberately high threshold. The Court of Appeal has described it as a “gateway” through which any discharge application must pass, and “out of all proportion” requires more than simply showing the consequences outweigh the offending; they must be starkly disproportionate to it.

The three-step test

Following the Court of Appeal’s decision in Blythe v R [2011] 2 NZLR 620, the Court follows a three-step process in considering whether to grant a discharge without conviction:

• Gravity of the offending. The Court will consider the gravity of the offending, taking into account all aggravating and mitigating factors relating to both the offending and the offender.
• Consequences of a conviction. The Court will identify the direct and indirect consequences that a conviction would have for the offender.
• Proportionality. The Court will then consider whether those consequences would be out of all proportion to the gravity of the offence. Only if this final step is satisfied does the Court have jurisdiction to consider exercising its discretion to grant the discharge.

What counts as a “consequence” of conviction?

Even where this threshold is met, granting a discharge remains discretionary; the Court is not required to grant one simply because the test is satisfied.

The consequences the Court will consider are not limited to the immediate legal outcome. They can include:

• Loss of employment, or being prevented from working in a particular profession or industry (for example, professions requiring a “fit and proper person” test, such as law, medicine, teaching, or financial services);
• Difficulty obtaining visas or travelling to certain countries, which can affect both work and personal travel;
• Immigration consequences in New Zealand, including the risk of deportation for non-citizens;
• Loss of professional registration, qualifications, or licences; and
• Reputational harm, particularly where the offender’s occupation or public profile means a conviction is likely to attract adverse attention.

So who is eligible?

The weight given to these consequences depends heavily on the individual’s circumstances; the same conviction may have minimal impact on one person’s life and a severe, career-ending impact on another’s.

Whether someone is likely to be granted a discharge without conviction is highly fact-specific and involves an assessment of their personal circumstances, the consequences of a conviction on their future, and the offending itself.

As a general guide, applicants tend to have stronger prospects where:

• The offending itself is at the lower end of seriousness;
• There is a genuinely significant, well-evidenced consequence attached to a conviction (rather than a general or speculative one);
• The offender has entered an early guilty plea and demonstrated genuine remorse; and
• There is little or no relevant offending history.

It remains a discretionary, fact-specific decision

By contrast, more serious offending will generally require a much more significant consequence before the proportionality threshold under s 107 can be met.

The consequences of the conviction are important to consider. For example, will the conviction prevent someone from obtaining employment in a specific field they have been working towards? Will it cause difficulties travelling overseas for work? Will it affect a visa application, a professional registration, or a career they have already built? These are the kinds of questions that need to be carefully addressed, with proper evidence, when an application under s 106 is made.

A discharge without conviction is not automatic, and courts scrutinise these applications carefully. Evidence of the claimed consequences is essential, and unsupported assertions are unlikely to succeed. Preparing a strong application, with the right evidence addressing each stage of the three-step test, can make a significant difference to the outcome.