Discharge without conviction

A discharge without conviction under sections 106 and 107 of the Sentencing Act 2002 is a sentencing option that allows a defendant to avoid the entry of a criminal conviction on their record. It is deemed to be an acquittal.

Section 107 formulates a balancing test in which the following questions are asked:

1. What is the gravity of the offending?
2. What are the direct and indirect consequences of conviction?
3. Are the consequences out of all proportion to the gravity of the offending?

If the consequences are found to be out of all proportion to the gravity of the offending, the sentencing Judge has the discretion to grant a discharge without conviction.

Immigration-related consequences

Immigration-related consequences, generally liability for deportation, are often cited as grounds for an application for discharge without conviction but the response in the courts has tended to be that:

1. It is the offending itself, not the conviction that triggers these consequences; and that,
2. It is not for the Courts to conceal information on criminal offending from immigration authorities and that it is for those authorities to weigh up this information by way of their own processes.

In practice, I have been reluctant to raise immigration as a consequence, except in the most stark of examples, as submissions along these lines have generally been met with the responses above following three Court of Appeal decisions in 2021 (Sok v R [2021] NZCA 25; Anufe v Police [2021] NZCA 253 and Zhu v R [2021] NZCA 254) and, at least in my experience, have tended to be a distraction from other merits of an application.

A distinction has evolved in these Court of Appeal decisions to distinguish between whether it is the liability to deportation or the the risk of actual deportation that should be treated as consequences of a conviction under s 107.

The Court of Appeal has consistently held that the risk of actual deportation is a result of the offending not the conviction and should therefore be excluded from the section 107 balancing exercise. This consequence has been treated differently from, for example, employment or overseas travel consequences, because the decision is made by immigration officials by way of a “rights based process” (see [21] of the Supreme Court decision) therefore the relevant consequence is liability to deportation, not the risk of actual deportation itself.

Bolea v R

The law in this area has been clarified in a recent Supreme Court judgment: Bolea v R [2024] NZSC 46.

This appeal concerned how a sentencing court is to treat the risk the defendant will be deported when considering an application for discharge without conviction.

Ms Bolea, as an Australian with a residence class visa under section 161(1)(b) of the Immigration Act 2009, was liable for deportation if convicted of an offence for which a court may impose a term of imprisonment of two years or more, provided that the offence was committed no later than five years after she first held the visa. Both criteria were met. Mr Mataia had been deported from Australia to New Zealand some years prior under section 501 of the Migration Act 1958 (Cth) and is therefore unable to return to Australia.

At sentencing Ms Bolea applied for a discharge without conviction on the basis of the likely prospect that she would be deported to Australia, resulting in the separation of her family as she would go to Australia with the child, the father could not follow and their ability to meet in another country would be ‘problematic at best’ (at [9]) given both parents’ convictions. This was the sole consequence of her conviction being advanced as out of all proportion to the gravity of the offence.

Both the High Court, in sentencing her, and the Court of Appeal held that deportation resulting from a process in which the immigration decision maker can consider the gravity of the offending and the appellant’s personal circumstances is a consequence of the offending itself and not the conviction. Therefore, on that view, there is no basis to grant a discharge without conviction as the conviction is not determinative of the likely outcome.

The central issue in the Supreme Court’s decision, then, is whether it is the liability to deportation or the the risk of actual deportation, or both, that should be treated as consequences of a conviction under s 107. The Court concluded that both can be considered; a meaningful move from the Court of Appeal’s position that only liability to deportation could be treated as a s 107 consequence of conviction.

The Supreme Court held that (at [41]):

Our view is that where, as here, there is unchallenged evidence that the issue of a deportation notice will “almost certainly” occur, then (in the absence of other evidence) both the liability for deportation and the risk of actual deportation should be treated as consequences of conviction under s 107.

The Court got there in two steps:

1. Under s 11(1) of the Sentencing Act the Court must consider whether the offending would be more appropriately dealt with by way of a discharge. ‘The obligation to consider whether a discharge would be the appropriate outcome applies whether or not there is any other later process that may or may not consider similar factors.’ (at [43] – see also fn 32: ‘We see no reason to distinguish in this context between deportation cases and those involving travel restrictions); and,
2. For the holder of a residence class visa, the possibility that a deportation liability notice may be issued is triggered by a conviction for an offence coming within s 161 of the Immigration Act.

The intellectual move here is to bring a risk of actual deportation into the proportionality analysis (at [44]):

The analysis of the risk of actual deportation in the present case is accordingly better treated as part of the proportionality exercise rather than effectively taking it outside the proportionality exercise by treating it as a consequence of the offending.

Directly contra the Court of Appeal (at [47]):

It follows, at least as a general proposition, that we do not accept the observation by the Court of Appeal that the relevant legislative powers and associated processes “nay not only establish consequences for an offender but also determine whether those consequences are the product of a conviction.” Rather, subject to any evidential indications to the contrary, the effect of those processes will usually be a matter to be considered in the proportionality exercise envisaged by s 107 of the Sentencing Act.

The risk of actual deportation still needs to be assessed on the facts of the individual case (at [53]):

Treating the risk of actual deportation as a consequence of conviction does not, of course, mean that a discharge will be granted. As is common ground, in undertaking the proportionality exercise, the Court must be satisfied that there is a “real and appreciable risk” that the consequences of a conviction identified by a defendant could occur.

The Court, allowing the appeal (remitting the decision on discharge back to the High Court), summarised the new position (at [56]) that:

(a) What is required is an individual assessment of the particular circumstances of the defendant as is apparent from both ss 11(1) and 107 of the Sentencing Act.

(b) If there is credible evidence based on past practice that, in the ordinary course, a deportation liability notice will be issued then, unless there is case specific evidence to the contrary both the liability to deportation and the risk of actual deportation should be treated as consequences of the conviction under s 107. The same approach applies where it is plain immigration authorities will not go beyond consideration of the conviction.

(c) The position may be different if it is clear a conviction does not add anything (as was the case in Sok) [in Sok v R the evidence was clear that the conviction was not the barrier to the outcome of concern to the person liable to deportation as (1) he failed the ‘good character’ requirements and, (2) his visa application having been declined, he was then in the country unlawfully and it was too late for him to seek a character waiver.]

(d) Once the court determines the exposure to deportation is a consequence of the conviction, the court must be satisfied there is a real and appreciable risk of that consequence occurring. This consideration is undertaken as part of the proportionality exercise required by s 107.

However, the Court also noted at [54] that ‘there may be situations where mere exposure to the procedures relating to deportation may be a disproportionate consequence.’ (citing Jeon v Police [2014] NZHC 66 at [21], where the High Court said the issue was ‘whether [the defendant’s] momentary inadvertence resulting in a driving offence of moderate seriousness, and assessed against an otherwise exemplary life, should have the automatic consequence of the risk of deportation hanging over [the defendant] and his family for possibly up to 10 years.’).

So, what difference does this make? Rather than rejecting the actual risk of deportation as a ground for a discharge without conviction and handing off the decision to the immigration authorities, the Supreme Court has brought into the frame the ability for a sentencing Judge to assess the risk of actual deportation on the facts of the individual case.

A real and appreciable risk of actual deportation must still be shown in the defendant’s individual circumstances: affidavit evidence from an immigration specialist would generally be required. If such a risk is plausible, the Court can grant a discharge without conviction on that basis.