Hundreds escape convictions (+poll)

By Brendan Manning

11 comments


Hundreds of Western Bay defendants have escaped criminal convictions by way of diversion or discharges in the last year.

The Sensible Sentencing Trust has hit out at the use of discharges without conviction, but a top local lawyer says they are a useful sentencing tool.

Of the 16,259 cases processed through the Tauranga court cluster (Waihi, Tauranga, Whakatane and Opotiki) last year, 465 (2.8 per cent) resulted in diversion, or discharges without conviction. In 2011, 17,760 cases were processed with 668 (3.7 per cent) resulting in diversion or discharges.

Tauranga criminal defence lawyer Bill Nabney said diversion was "quite useful" for offenders who appeared on minor charges. Discharges were also useful to judges for sentencing, although "quite a high threshold has to be met".

"A person can't be discharged without conviction unless they have first satisfied the court that the consequences of a conviction are out of all proportion to the gravity of the offending."

Mr Nabney said he recently used it for a client with no previous convictions who was studying for her masters degree. "It turned out if the conviction was entered for the drug-related offending, that would prevent her from entering in the area she wanted to work in." The judge had remanded the case for three months [and] told her to do 60 hours' work in the community.

Once the community work was completed she had earned her discharge, Mr Nabney said.

Sensible Sentencing Trust spokesman Peter Bentley said if a prosecutor believed a charge was serious enough to warrant taking it to court then a discharge without conviction should not be considered.

A Marton woman facing a manslaughter charge was granted a discharge without conviction in November 2011 after her toddler drowned in a swimming pool. She had left her 22-month-old daughter briefly to tend to her 2-week-old baby crying inside the house.

Justice Forrest Miller said at sentencing the woman had been "exhausted and overwhelmed", having just had a newborn and recently losing her mother to cancer. Mr Bentley said while it was a sad case, "Who's speaking for the baby?"

Police prosecutors are responsible for the diversion scheme, which enables first-time, low-level offenders to avoid a conviction. Offenders who are not eligible or won't accept diversion conditions can still seek a discharge without conviction under Section 106 of the Sentencing Act 2002.

A discharge operates as an acquittal, however, the court is still able to order payment of costs and reparation, and impose orders, like a period of disqualification from driving.

Chief District Court Judge Jan-Marie Doogue said in every case where an offender pleaded guilty or was found guilty, the court had to consider whether it was appropriate to discharge without conviction, if legislative requirements had been met.

"It is commonly, but not exclusively, used where the consequences of the offending far outweigh the culpability of the offender's actions."


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