Unless you never watch or read news, you will have heard of this concept. A discharge without conviction is available where someone has pleaded or been found guilty. Despite the media spin often put on these cases, while there is the occasional questionable decision, as a general rule, the granting of a discharge without conviction comes after the strict application of a legal test that has been handed down by parliament, and given significant direction by the higher Courts. There is a common misconception that discharges are only available for minor offences. In fact, the Court must consider whether a discharge is appropriate when sentencing every single offender (unless there is a mandatory term of imprisonment, or a presumption in favour of it).
It’s not just low level stuff that meets the test for discharge. We’ve obtained discharge for client’s facing charges that, on the face of it, appear quite serious. We recently had a client enter the office charged with being a party to the supply of methamphetamine. That charge carried life imprisonment. After bargaining it down to a charge of conspiring to supply, which only carries a maximum penalty of 14 years imprisonment, a successful application for discharge without conviction was made.
Sometimes, the sentencing Court gets it wrong. There have been a number of high profile cases in the media where the crown has appealed decisions to discharge. Likewise, we appeal decisions not to discharge. We’ve had a number of refusals to grant discharge overturned on appeal, in one instance for a charge of breaching a protection order, which the original sentencing Judge described as “one of the more serious offences on our statute books”. The particular charge itself is not the starting point – it’s what you did that needs to be looked at.
The test itself is found in the Sentencing Act 2002, in Section 107, which states:“The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.”
The Courts have broken this down into a three step test:
First, they must assess the gravity of the offence.
This means looking at the offence and the offender. Taking in to account the circumstances of the crime and what actually happened, and if appropriate, why.Whether you were caught holding a bag of ecstasy, drink driving, or had a car accident where someone got hurt, the Court needs to examine your conduct and place it somewhere on the scale of “really serious” and “really minor or trivial”.
Second, the Court must assess the consequences of a conviction.
This usually requires the filing of formal evidence in advance. If the consequence is going to be loss of employment, we need proof, preferably an affidavit from the boss and a copy of your contract. If the consequence is that you will not be able to travel for work, we need proof – evidence that you have reasonably certain future plans. If the consequence is less than either of those, it better be a trivial offence, which leads to the third part of this test.
The third step of this test is to balance the offending against the consequences of a conviction. Imagine the old scales of justice; this is a balancing exercise. If the consequences of a conviction are out of all proportion to the gravity of the offence, then the Court can, and almost always will, exercise its discretion to discharge.
Now, there is a discretion the Court has not to grant a discharge, even when the scales are firmly tipped in favour of granting one. The general rule, however, is that the test is the test. Once it is met, a discharge follows unless there is some extraordinary reason not to grant one.
Although the test is reasonably straightforward, there are a lot of arguments about what fits in which part of the test, and what can be considered at all. There are also a number of things you can do to help tip the scales in your favour. Counselling, voluntary community work, or paying compensation, for example, are looked favourably on by the Court, and can be considered to lower the gravity of the offence in some instances.
In some cases, the offence is so trivial, and the consequences so clear, that a Judge can be convinced to grant a discharge when a guilty plea is entered. In the vast majority of cases, though, a guilty plea is entered and then the matter is adjourned to allow a formal application to be filed, and served on the Police or Crown. The Police / Crown can either oppose the application or take a neutral position. While it’s easier when they are neutral, the Police / Crown opposition is in no way the end of the matter. Sometimes we have to put up a fight; sometimes we need to take the fight to a higher Court on appeal, but, we do our best to obtain a discharge when there’s a possibility of adverse convictions.