JUNE 2009

Discharge Without Conviction

Provisions in the Sentencing Act

If an offender pleads guilty or is found guilty of an offence, the Sentencing Act (“the Act”) requires the Court to consider before entering a conviction, whether the offender might be more suitably dealt with by way of a discharge without conviction. The Act empowers the Court to discharge an offender without conviction unless by an enactment applicable to the offence the Court is required to impose a minimum sentence. Discharge under this Section is the same as an acquittal, which is, the person leaves the Court without the burden of a conviction.

The Act provides the criteria for this discretion vested in the Court, and is a mandatory pathway that any discharge without conviction must be considered. Regardless of a guilty plea or a guilty finding, therefore the Court can still order a discharge without conviction. Of course a discharge is more likely to follow from an early guilty plea. It would be more difficult for an offender to receive a discharge without conviction when he or she has continued to deny responsibility for the offence for an extended period. A Court however must be satisfied that the direct and indirect consequences of conviction would be disproportionate to the seriousness of the offence.

When is a Discharge Without Conviction Appropriate?

Discharges Without Conviction are appropriate in circumstances where the level of culpability of the offender is minimal and there are strong mitigating factors in existence. For example it is more appropriate for a discharge to be given where the offence is relatively minor. A leading Court decision identified a four step approach as involving:

  • Identifying the gravity of the offending by reference to the particular facts;
  • Identifying the direct and indirect consequences of a conviction;
  • Determining whether those consequences would be out of all proportion to the gravity of the offending;
  • Determining after conducting the balancing exercise, whether the discretion available should be exercised.

Minimum Sentence

It is clear from the Act that the Court is unable to exercise its discretion on the discharge without conviction if a person is found guilty of a charge and the minimum sentence is expressly provided by law. In these cases the Court must impose the minimum sentence. There is still a debate whether a discharge without conviction can apply to the mandatory disqualification provisions of the Land Transport Act 1998.

There is however case law referring to offenders being discharged without conviction thereby escaping the mandatory disqualification imposed under the Land Transport Act for a variety of motoring offences. The Land Transport Act 1998 states that where a provision in this Act requires a Court to disqualify a person from holding or obtaining a driver’s licence for a period not less than the specified minimum period, the Court is bound to disqualify the offender unless there are special reasons relating to the offence which allows the Court not to disqualify. Despite the Land Transport Act provision there is a compelling argument that the Discharge Without Conviction provisions in the Sentencing Act can still apply in particular circumstances.

Further Orders

Further orders also may be imposed with a discharge without conviction under the Act. The provision allows the Court after discharging the offender without conviction to make an order for the payment of costs for the loss or damage of property or monetary compensation to a person that has suffered loss or damage to property, emotional harm, consequence for loss or damage or any emotional or physical damage to property.


A discharge without conviction provides the offender with a means to escape a conviction if there are good reasons. Mitigating factors which would assist the application for a discharge without conviction would include an early guilty plea, remorse, the offence being relatively minor, or where there are outside influences beyond the control of the offender which contributed to the offending. However, the Court must still consider the other provisions of the Sentencing Act such as the purposes of sentencing, the principles of sentencing, and aggravating and mitigating factors, the relevant circumstances of the offence, the offending itself, the circumstances of the offender and the public interest, then determine whether the Act’s disproportionality test is met.