Discharge Without Conviction – Not Just for Sports People

December 2014 . . . Recent media publicity has suggested that sports people are, unjustly, more likely to be discharged without conviction when they come before the Court on criminal offences (see for example here).
That perception is misplaced.  The discharge rules do not favour sports people (as the examples below show).  It just so happens that it is the discharge of sports people that receives media attention.  
Any person who considers their circumstances fall within the test of “consequences of conviction outweighing the seriousness of the offence” is entitled to apply for a discharge.  
The Threshold 
Section 106 Sentencing Act 2002 allows the Court to discharge an offender, subject to such terms as the Court deems just.
Section 107 provides that the Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offence.
The law applies to all equally.  What is required of the court is judgment as to whether the threshold test in section 107 is met.
The Court can discharge a person without conviction if:
(a) the offence was a one off
(b) it was out of character;
(c) the defendant was cooperative with Police;
(d) the defendant has entered a plea of guilty at an early opportunity (a finding of guilt after a defended hearing doesn’t preclude an application for discharge, but the absence of a guilty plea often means the defendant cannot claim remorse)
(e) The defendant can point to the relevant consequences
Sentencing Act 2002
Other provisions of the Sentencing Act 2002 put the power to discharge without conviction in context:
(a) Section 8(g):  the Court must impose the least restrictive outcome that is appropriate.
(b) Section 8(h):  the Court must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would in the particular instance be disproportionately severe.
(c) Section 10(2A):  in the hierarchy of sentences established by the Act a discharge is the least restrictive outcome.
(d) Section 11(1)(a):  on a plea of guilty the Court must consider whether the offender would be more appropriately dealt with by a discharge without conviction under section 106.  
Examining the Conduct
The leading authority on the criteria for a discharge without conviction is the decision of the Court of Appeal in Blythe v R [2011] 2 NZLR 620.  That case sets out a three stage approach to considering whether a discharge is appropriate:
(a) assessing the gravity of the offending
(b) assessing the consequences of conviction
(c) asking whether the direct and indirect consequences are out of all proportion to the gravity of the offence.
The “test” in section 107 (i.e. consequences outweighing the seriousness of the offence) is regarded as the “gateway” to discharge under section 106.
Section 9 sets out a list of aggravating and mitigating factors relevant to the assessment of the gravity of the offence.  That includes aggravating and mitigating features of both the offence itself and the offender (Z v R [2013] NZAR 142).  
The Court must be satisfied that the consequences of conviction would be out of all proportion to the gravity of the offence.  The decision as to whether the disproportionality test has been met is not a matter of discretion, but rather a matter of fact requiring judicial assessment.  While the disproportionality test has been described as “very stiff”, “exceptional” or “extreme”, later judgments have criticised that approach as not helpful.
The Court of Appeal also noted the expressions suggesting that the discretion be “exercised sparingly” and “only in exceptional circumstances” tend to fetter the discretion and are therefore of no assistance to the sentencing court.
The test will be met if the Court is satisfied that there is “real” and “appreciable” risk of such consequences.
In addition, the seriousness of those consequences must be weighed in the disproportionality assessment.
The Court must consider “every legitimate interest of the offender” including the effect on their career, pocket and reputation.  
Travel and employment are common themes, but discharges can be given in cases where the defendant can only point to “general consequences” such as the stigma of a conviction for a minor offence.
To give an example of the range of circumstances of successful application and the nature of the adverse consequences, discharges have been granted in the following cases:
IT student where evidence indicated an assault conviction would impact on his ability to obtain employment
International skier where a conviction for drink driving would have rendered him in eligible to enter Canada for training and competition
Apprentice electrician where a conviction for assault meant that he would not be able to access certain workplaces, therefore could not complete his apprenticeship
Rugby player where a conviction for offensive behaviour would have excluded the ability to play in Japan
Teacher where she sold a small quantity of drugs noting the impact on her career and travel
An enterprising fitness instructor who sold class C drugs
A father charged with assault on a child relating to excessive discipline.
If the disproportionality test is met, the Court turns to consider its residual discretion under 106(1) and then considers whether any further orders under section 106(3) are required.  
Section 106(3) empowers the court to impose conditions on the discharge, such as payment of emotional harm reparation, reparation for damage caused, and disqualification from driving.
In some cases a person’s prospects of obtaining a discharge without conviction are improved if they demonstrate their remorse and contrition by voluntarily taking steps to address both the causes and consequences of the offending.  That can include payment of reparation, making an apology, undertaking counselling, donations to a charity concerned with the subject matter of the offending and performing voluntary community work.