criminal-law new-zealand sentencing criminal-record
Where do defendants found guilty get discharged without conviction?
<p>In New Zealand, a defendant may be &quot;<a href="https://www.legislation.govt.nz/act/public/2002/0009/latest/DLM136807.html#DLM136807" rel="nofollow noreferrer">discharged without conviction</a>&quot; after found guilty.</p>
<p>Courts would apply such a discretion where they are satisfied that the consequences of conviction would be out of proportion to the gravity of the offending.</p>
<p>Simply put, if Bob and Rob both commit the same sort of offence in similar circumstances (or, perhaps, even commit <em>one</em> offence together in equal roles), but Rob's career would be aborted (and he won't be able to support his family etc.) if convicted/sentenced same as Bob, he might get a lighter sentence, or even get &quot;discharged without conviction&quot; and walk free while Bob will be paying for his mistakes in full.</p>
<p>I just read that the High Court on appeal <a href="https://www.stuff.co.nz/national/crime/300411181/pua-poacher-who-donned-a-wig-to-trick-fisheries-officers-wins-appeal" rel="nofollow noreferrer">quashed</a> the conviction of someone who exceeded the daily fishing limit and obstructed the fishing officers — merely because the conviction &quot;would impact [his] employment prospects&quot;. Another famous example was when a rugby player <a href="https://www.stuff.co.nz/national/crime/85228801/discharges-without-conviction-is-the-laws-safety-valve-blowing-out" rel="nofollow noreferrer">got off the hook</a> for a brutal assault because &quot;the crime did not justify destroying a young man's career prospects&quot;.</p>
<p>What especially outrages me about that s 106 of the Sentencing Act 2002 is that it allows to remove the <em>conviction</em> — not sentencing — and <em>acquit</em> the defendant after finding him guilty!</p>
<p>Is there any other jurisdiction that recognizes any substantially similar judicial conclusions? Are such resolutions not violations of the <a href="https://en.wikipedia.org/wiki/Rule_of_law" rel="nofollow noreferrer">rule of law</a>?</p>
<p>What sense does it make to go through a trial process vs. assess in advance if a discharge would be granted upon conviction, and if so, dismiss the charge before the trial to avoid waste of court resources?</p>

<blockquote>
<p>Is there any other jurisdiction that recognizes any substantially similar judicial conclusions?</p>
</blockquote>
<p><a href="https://en.wikipedia.org/wiki/Discharge_(sentence)" rel="nofollow noreferrer">Yes</a>. Australia, Canada, England and Wales. Some parts of the United States have analogues but not equivalents.</p>
<blockquote>
<p>Are such resolutions not violations of the rule of law?</p>
</blockquote>
<p>Why would it be? It is an option that the judge can apply to any and all defendants. That is: all are equally eligible which is pretty much what the rule of law requires.</p>
<p>As for why different defendants might receive different sentences for what appears to be the same level of criminality and culpability, I refer you to ss <a href="https://www.legislation.govt.nz/act/public/2002/0009/latest/DLM135543.html" rel="nofollow noreferrer">7</a> and <a href="https://www.legislation.govt.nz/act/public/2002/0009/latest/DLM135544.html" rel="nofollow noreferrer">8</a> of the Act. In particular 7 (b) &amp; (h)</p>
<blockquote>
<p>(b) to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or</p>
<p>(h) to assist in the offender’s rehabilitation and reintegration;</p>
</blockquote>
<p>and 8 (g)-(j):</p>
<blockquote>
<p>(g) must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A; and</p>
<p>(h) must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and</p>
<p>(i) must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and</p>
<p>j) must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10).</p>
</blockquote>
<blockquote>
<p>What sense does it make to go through a trial process vs. assess in advance if a discharge would be granted upon conviction, and if so, dismiss the charge before the trial to avoid waste of court resources?</p>
</blockquote>
<p>You did read what you linked? In particular:</p>
<blockquote>
<p>(3) A court discharging an offender under this section may—</p>
<p>(a)
make an order for payment of costs or the restitution of any property; or</p>
<p>(b)
make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—</p>
<p>(i)
loss of, or damage to, property; or</p>
<p>(ii)
emotional harm; or</p>
<p>(iii)
loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:</p>
<p>(c)
make any order that the court is required to make on conviction.</p>
</blockquote>
<p>None of that would be possible without the finding of guilt.</p>

<p><strong>2. No.</strong></p>
<p>The decision is derived from the statute that you cited; it is hardly viewable as the judges arbitrariness, but it’s lawful discretion under the law — of course, if another is convicted in the same fact pattern merely being a member of a protected group, that would arguably be a matter of abuse of discretion, but as long as it is isolated, not systemic, and there is reasonable procedure for appeal in such a case, that is still not a matter of such gravity where the rule of law could be called into question. The only other way this could violate the rule of law if the statute itself would not be in harmony with one or more constitutional provisions and/or with international law should any be applicable.</p>
<p><strong>1. Specific instances where equivalents or substantially similar conclusions are available</strong></p>
<p>It’s completely normal; for example in Hungary there was a case of a female public servant doctor who not only assaulted on a disabled colleague of hers, also a public servant, but also prevented bystanders from giving first aid and help the public servant assaulted or otherwise get involved.</p>
<p>However, this happened during COVID-19, and the country needed all the doctors. She obtained what appears substantially the equivalent as what you describe including that her criminal record got cleared up upon sentencing.</p>
<p>In the U.S., juries have almost untethered discretion to not convict; although their reasoning may not be so profound or explicit in any way, but the underlying objection may lawfully be the same — despite courts severely sanction informing the jury about the fact that they are not really bound by the laws when it comes to acquittals.</p>
<p>This is a rather direct expression of democracy in that the people directly exercise their power over one of many duties imposed on the judicial branch of a government.</p>
