By Lily Clemence
Section 106 of the Sentencing Act 2002 covers discharge without conviction. Under s 106(1) of the Act, a person who is found guilty or who pleads guilty may be discharged without conviction. This means that although they are guilty of the offence, they will not have the conviction recorded on their criminal record.
Section 106 has the potential to be life-altering, yet it is widely underused.
Here is what you need to know:
Under the Sentencing Act, a Judge is required to impose the least restrictive outcome that is appropriate in the circumstances. As such, a discharge without conviction may be granted if the Judge is satisfied that the consequences of a conviction are out of all proportion to the seriousness of the offence.
Some examples of direct and indirect consequences of a criminal conviction include:
Loss of employment
Exclusion from a profession
Loss of reputation and impact on future career
Inability to travel overseas
Loss of immigration status
Difficulties obtaining insurance
The consequences of conviction are often even greater for young offenders and the courts recognise the relevance of youth when it comes to sentencing. In the Court of Appeal decision in Churchward v R [2011] NZCA 531, it was held that youth is relevant in the following ways:
Age-related neurological differences which may make young people more vulnerable to negative influences and outside pressures and may make them be more impulsive than adults.
The effect of imprisonment on young people may be potentially crushing.
The greater capacity for rehabilitation, given their character is not as cemented as an adult’s.
The decision in Churchward also made reference to the additional factors recognised by the England and Wales Sentencing Guidelines Council. The 2017 Guidelines recognise the importance of avoiding “alienation of the child or young person from society” and giving them “the opportunity to learn from their mistakes without undue penalisation or stigma, especially as a court sanction might have a significant effect on the… opportunities of the child or young person and hinder their re-integration into society”.
People (especially young people) make mistakes. Where the consequences of those mistakes are out of all proportion to the seriousness of the offence, an application under s 106 of the Sentencing Act provides room to learn from those mistakes without undue penalisation or stigma.