Thread: Discharge Without Conviction

After seeing the reactions of some members of the forum in response of the refugee avoiding punishment for his firearm offence, it is clear that many people do not know about a particular piece of sentencing law we have in New Zealand called Section 106 discharge without conviction. From the Stuff article it looks like this refugee received Section 106 discharge without conviction.

Essentially this law allows a defendant who is found (or pleaded) guilty, to ask for forgiveness and not be convicted - hence the title "discharge without conviction".

How it works is that the defendant has to prove to the Court that the consequence of his/her conviction is all out of proportion to the gravity of his/her offence.

Gravity of the offence is essentially how terrible was the criminal act. For example, a person who punches another person in the chest and arm a few times, without causing injury, would be considered to be at the low-end of the scale for gravity of offence. A person who beats another person in the head causing permanent loss of vision would be considered to be at the high-end of the scale (see Losi Filipo)

Consequence of the conviction is about what negative consequence the defendant's conviction. Obviously all convictions will carry negative consequences. The issue is how severe is that negative consequence, whether it is all out of proportion to the gravity of the offence. Usually only the really bad ones would make the cut. For example if the conviction would mean termination of a career (happens with lawyers and accountants for dishonesty offences such as pity theft). It is important to keep in mind that it is a comparison exercise - just because the consequence is bad, or even very bad, does not mean discharge would be granted. If you murdered someone, you will not be discharged just because a murder conviction will make you lose your job.

Now turning to the refugee air rifle case. Firstly we look at the gravity of the offence. The victim is shot with an air rifle, from the sound of it, it was not a high powered PCP type as the victim 's injury did not require no ongoing medical care, the injury was not a serious one. Also in this area of the law, gravity of offence can be mitigated by conduct of the victim and the offender's age. See Sentencing Act section 9 (2). Here the offender is pretty young and the the victim has definitely acted poorly (note, none of these factors undermines the finding of guilt, they only apply to sentencing). These are well established legal principles. I cannot see how, after applying these principles to the facts, one can come to an conclusion that this was anything but a low-end gravity offence.

We then look at the consequence of conviction. consequence are usually unique to each defendant, and I have not see the sentencing note (judgment) by the judge. But I would assume immigration consequence to be a consequence that was taken into account. It has been well-established that bad immigration consequences can be taken into account, see High Court cases of Kumar and Jeon, and Court of Appeal cases of Ji and Waine, etc. Under the ordinary course of things, if this refugee was convicted he would probably face deportation and that would be the end of his chance for a better life.

Therefore the conclusion can easily be that the consequence of the conviction is all out of proportion to the gravity of the offence. Every year, many defendants receive discharge without conviction despite being found or pled guilty to crimes with far more serious gravity. I think this outcome is entirely open to the Judge.

This law has been in place for a long time and general perception is that it is works just fine. Usually a person will only ever get one discharge without conviction. It is about giving people who made a (relatively minor) bad decision a second chance, rather than "keep letting the criminals off".

I hope this helps and you guys dont get so worked up over this kind of news. Most people in this forum are not just gun owners, but also adults with a lot of responsibilities and a lot of social interactions. Anyone could one day be on the receiving end of S106.