A discharge without conviction is a way of dealing with your offence without having a criminal record. The Court can discharge you without convicting you if it thinks that:
Depending on the seriousness of your offence, it may result in an absolute discharge, conditional discharge, or suspended sentence.
An absolute discharge means the accused person is released from all criminal liability with no conditions attached and their record of the offence is cleared. It usually happens in cases where guilt has been determined, but the court decides that a conviction and any punishment would be out of proportion to the offence committed.
- The offence is so minor that it would be disproportionate to impose a conviction, and
- A conviction would have an unduly adverse effect on you or your family, for example in employment.
However, there are some things you need to know and consider before applying for a discharge without conviction. In this blog post, we will go through what you need to know.
- You can only apply for a discharge without conviction if you have pleaded guilty or been found guilty after a trial.
- You cannot apply for a discharge if the Judge has already found you not guilty or convicted and sentenced you.
- Applying for a discharge will cost you $200.
- If the Court grants you a discharge, your name will be suppressed from the public record and will not appear on any criminal history checks. However, the fact that you have been granted a discharge may appear on some limited checks, such as employer vetting for people working with children.
- Even if your name is suppressed, police and customs officers may still be able to see that you have been granted a discharge if they run a check on you. This information may be used against you if you commit another offence within 7 years of being discharged. For example, the police may argue that because of your previous offence, they think you are more likely to have committed the new offence.
- If you are not a New Zealand citizen, getting a discharge without conviction may affect your ability to travel overseas or get citizenship in another country. You should get advice from Immigration New Zealand before applying for a discharge if this is something that concerns you.
- If the Court grants your application, the conditions of your discharge will be recorded and enforced by the Probation Service. You will usually have to comply with conditions for 6 months, although this can be up to 2 years. Conditions might include things like attending counselling or doing community work hours. If you do not comply with the conditions of your discharge, you can be brought back to Court and convicted of the original offence.
- Getting a discharge does not mean that the offence never happened and it is not an official pardon. It also does not stop police from using the facts of your case in future prosecutions – for example, if they think those facts make it more likely that you committed another crime.
- If you have already been discharged once before, it may be more difficult for you to get another one – but this will depend on various factors, including how long ago your previousdischarge was and whyyou are wanting another one now.