Can I avoid
a conviction?

What is a discharge without conviction?

Under section 106 of the Sentencing Act 2002, a court can discharge a person without recording a conviction — even where the charge has been proven or admitted. If granted, you leave court with no criminal record for that matter. The conviction does not appear on your record, not because it is hidden, but because it was never entered.

The legal test — two stages

The court applies a two-stage test established by the Court of Appeal in Z v R [2012] NZCA 599. At stage one, the court asks whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. If the answer is yes, the court moves to stage two. At stage two, under section 107 of the Sentencing Act, the court exercises a discretion and considers whether it is appropriate in all the circumstances to discharge without conviction. Even if stage one is made out, the court is not required to discharge — which is why the overall picture matters.

What the court considers at stage one

The consequences must be specific and evidenced — courts hear these applications regularly and give little weight to general statements about career or travel impacts. Consequences that courts treat seriously include:

• Specific employment consequences, particularly loss of a job or professional registration that requires a clean record
• Travel restrictions — many countries including Australia, the USA, Canada, and the UK restrict or deny entry to people with criminal convictions
• Immigration consequences — for non-NZ citizens, a conviction can trigger a liability to deportation
• Consequences for a professional licence or security clearance

What the court considers at stage two

At stage two, the court looks at the full picture — the seriousness of the offending itself, your character and background, any steps taken since the offending (counselling, reparation, apology), your remorse, and the likelihood of reoffending. A single isolated incident by a person of previous good character is the paradigm case for a discharge without conviction.

A caution about failed applications

A discharge without conviction application that is poorly prepared or brought in a case that does not justify it can affect how the court views the sentencing. It is important to assess early whether an application is realistic — and to be honest about that assessment. Sam will give you a direct view at the outset.

When is it realistic?

Some cases clearly justify an application. Others do not. The charge type, the seriousness of the offending, your personal circumstances, and the specific consequences of a conviction are all relevant. For first offences where there are real and evidenced consequences of conviction, a well-prepared application has a genuine prospect of success.