Application for discharge without conviction — theft — shoplifting — Sentencing Act 2006, ss 106 & 107 — Lawyers and Conveyancers Act 2006, s 55(1) — J v R [2021] NZCA 690 — Ralph v R [2021] NZHC 1434 — MacDonald v R [2019] NZCA 91. The defendant had pleaded guilty to four counts of theft and applied for a discharge without conviction. In assessing whether to grant a discharge without conviction, a court had to assess the gravity of the offending, and whether the direct and indirect consequences of a conviction would be out of all proportion with the gravity of the offending. The defendant admitted to having stolen clothing from three retail stores on four occasions over a two month period, totaling $8,926.00. There were no aggravating factors to the offending. The mitigating factors were that the defendant had pleaded guilty at the earliest opportunity, expressed remorse and offered to make amends and apologise. All stores had been fully reimbursed. The defendant had also suffered significant adverse consequences as a result of the offending, including her resignation as a Member of Parliament and corresponding loss of income, high publicity in the offending, including media camping outside the defendant's home, and impact on her mental health. Counsel for the defendant submitted that the defendant's mental health for the year prior to the offending was a significant contributing factor to the offending. The Court considered the report provided by a registered clinical psychologist and concluded that the report did not demonstrate that the defendant's mental health was causative of the offending. The Court did accept that the defendant was suffering from mental health issues at the time and took this factor into consideration. The Court assessed the overall offending as being on the low end of the moderate range. In assessing the consequences of a conviction, the Court noted that a conviction would not be additionally detrimental to the defendant's mental wellbeing. In terms of future employment as a lawyer, it would be for the Law Society to determine whether the defendant was a fit and proper person to hold a practising certificate and that a conviction alone did not determine a person's fitness to practice. On the point of the defendant's ability to travel, the Court noted that the travel/visa ground was linked to overseas employment. No information was provided about any future travel plans and therefore consequences relating to this were speculative. The Court concluded that a conviction would not be out of all proportion with the gravity of the offending, and declined to grant the defendant a discharge without conviction. Judgment Date: 27 June 2024.