If a person pleads guilty to, or is found guilty of, an offence, usually they are convicted of that offence. However, a judge still has discretion not to convict that person.

This is granting a discharge without conviction. It means the defendant, although guilty of an offence, will have no criminal record.  

Sometimes there is public criticism of decisions to grant a discharge without conviction, under section 106 of the Sentencing Act 2002. But it is not widely understood that the Sentencing Act requires a judge to impose the least restrictive outcome that is appropriate in the circumstances.

Therefore, unless the law requires a minimum sentence for an offence, a discharge without conviction may be considered, and regardless of the offender’s occupation or status in society.  

The judge must be satisfied on the evidence that the consequences of conviction will be out of all proportion to the gravity or seriousness of the offence. And “out of all proportion” is a significantly higher threshold than “outweigh”.

To reach a conclusion a judge must ask themselves three things: How serious is the offence? What are the direct and indirect consequences of a conviction? And finally, are the direct and indirect consequences of a conviction out of all proportion to the seriousness of the offence?

Seriousness includes the type of offence committed, the conduct and the consequences for a victim.  An offence will be viewed more seriously if it has a higher maximum penalty.

Determining the seriousness of conduct may include a combination of factors: whether the harm was intended; the type of conduct, and whether the conduct is prolonged or repeated. Generally, an offence is more serious when the harm is more serious.

Direct consequences of a conviction might include loss of a job, exclusion from a profession, or loss of immigration status.

Indirect consequences might include loss of a future career, inability to travel overseas, difficulty getting insurance, and effects on others such as family members or employers.

There must be a real risk that the consequences will occur.  It will not be enough that a consequence might happen because of a conviction. And the consequences must be out of all proportion to the seriousness of the offence.  This is a high standard.

When considering this question, a judge will consider factors such as:

• The purposes of sentencing.  For example, rehabilitation may count in favour of a discharge, but protecting the public, or a victim, may count against it.

• The principles of sentencing.  For example, a more serious offence (such as a bad assault) may count against a discharge but, strong whānau or community support that makes it unlikely a defendant will offend again may count in favour.

• A defendant’s personal characteristics or actions.  These may include, youth, remorse, efforts to put things right for a victim, or having a disability which may partly explain their conduct — any of which may count in favour of a discharge.  On the other hand, previous convictions, discharges or warnings or lack of remorse may count against.

Generally, the more serious the offence, the more serious the consequences need to be to make them out of all proportion to a conviction.

Where a judge discharges a defendant without conviction, the judge may still make certain orders such as costs, compensation to a victim and disqualification from driving.

Judges also have options to convict and discharge, or convict and order an offender to come up for sentence if called.

These are difficult decisions, not made lightly, and only after careful consideration of all the relevant matters.

Judge Lance Rowe (first published 2019)