Being charged with a criminal offence can be a stressful and overwhelming experience. One of the most immediate concerns for many people is the potential impact a conviction could have on their career, immigration status, professional registration, or ability to travel overseas. In New Zealand, section 106 of the Sentencing Act 2002 provides a mechanism for a court to discharge a defendant without recording a conviction - even where the person has pleaded guilty or been found guilty of the offence.

What Is a Discharge Without Conviction?

A discharge without conviction is a sentencing outcome where the court finds a person guilty of an offence but decides not to record a conviction against them. The person is still found to have committed the offence, but no conviction appears on their criminal record.

This is different from being found not guilty, which means the court has determined the offence was not proven. A discharge without conviction acknowledges guilt but recognises that the consequences of a conviction would be out of all proportion to the gravity of the offending.

When Can It Be Granted?

Under section 106 of the Sentencing Act 2002, a court may discharge a defendant without conviction if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The court will weigh:

  • The gravity of the offence - How serious is the offending? Was anyone harmed? Was it premeditated or a momentary lapse of judgement?
  • The consequences of a conviction - What specific, tangible consequences would the person face if convicted? This is where a strong application can make all the difference.

Consequences That Courts Consider

To succeed in an application for discharge without conviction, you need to demonstrate real, specific consequences - not just general inconvenience. Courts have accepted the following types of consequences:

  • Employment - Loss of current employment or inability to pursue a chosen career. This is particularly relevant for professionals who require a clean record, such as teachers, police officers, healthcare workers, and finance professionals.
  • Immigration - A conviction can affect visa applications, residency, and even result in deportation for non-citizens. Immigration consequences are often given significant weight.
  • Travel - Some countries, including the United States, have strict entry requirements for people with criminal convictions.
  • Professional registration - Many professions require good character certification. A conviction may lead to disciplinary proceedings or loss of registration.
  • Personal and family impact - In some cases, the impact on family members or dependants may be relevant.

How to Apply

An application for discharge without conviction is made to the sentencing judge. It is critical that the application is well-prepared and supported by evidence. This typically includes:

  • A written submission from your lawyer outlining the legal basis for the application
  • Supporting evidence of the consequences - for example, a letter from your employer confirming that a conviction would result in termination, or a letter from your immigration adviser explaining the visa implications
  • Character references from people who know you well
  • Evidence of any steps you have taken to address the offending - such as completing a course, making reparation, or seeking counselling

Is It Guaranteed?

No. A discharge without conviction is discretionary - the judge is not obliged to grant it, even if the consequences of a conviction are significant. The more serious the offending, the harder it will be to persuade the court that the consequences outweigh the gravity. However, for lower-level offending - particularly first offences - a well-prepared application has a genuine prospect of success.

How Indus Legal Can Help

Our criminal law team regularly represents clients seeking discharge without conviction across Auckland courts. We understand what judges look for, and we know how to build a compelling application. If you are facing a criminal charge and are concerned about the impact of a conviction, talk to us early - the sooner we are involved, the better positioned we are to achieve the best possible outcome.

Contact us on 09 869 4888 or email office@induslegal.co.nz.