Hundreds escape convictions

By Brendan Manning


Discharges without conviction save minor offenders from visiting the consequences of a stupid mistake forever, a local veteran lawyer says, but the Sensible Sentencing Trust has hit out at the practice, saying offenders should be pursued "to the letter of the law".

Of the 10,859 cases processed through the Hawke's Bay court cluster last year (Hastings, Napier, Waipukurau and Dannevirke), 323 resulted in diversion or discharges without conviction.

Comparatively, 12,156 cases were processed in 2011, with 437 resulting in diversion, or discharges.

Hastings defence lawyer Bill Calver said judges had to look at a "balancing scale" when awarding discharges.

"[The judge] has to look at whether the consequences of a conviction outweigh the seriousness of the offence."

Mr Calver said he had previously used the tool to get a client who had stolen her employers' property off the hook.

The discharge was successful in the sense she had not offended since, and hopefully would go on to have a successful career, he said.

"Very few of us go through life without making silly mistakes, especially people when they're young.

"This law is a just one because it means that we don't need to visit the consequences of a stupid mistake forever."

In appropriate cases where guilt had been established, judges could take a lenient view, allowing the offender to escape the consequences of a conviction.

"Obviously the consequences can be far reaching [and] can have an effect on employment and travel."

Discharges and diversion were awarded last year to 71 local defendants charged with assault, 43 for theft and related offences, 30 for dangerous or negligent operation of a vehicle, 29 for public order offences, 25 for drugs charges, 17 for weapons charges and 14 for fraud charges.

They were also granted for offences against justice procedures (10), threatening behaviour (9), unlawful entry (7), driving licence offences (6) and breaching community-based orders (1).

Nationally, of the 266,143 court outcomes last year, 11,227 cases (or 4.2 per cent) resulted in diversion or discharges.

Rotorua 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.

In November 2011 a Marton woman facing a manslaughter charge was granted a discharge without conviction after her toddler drowned in a swimming pool.

She had left her 22-month-old daughter briefly to tend to her two-week-old baby crying inside the house.

At the woman's sentencing, Justice Forrest Miller said the woman had been "exhausted and overwhelmed", having just had a newborn and recently losing her mother to cancer.

"Your lack of care has had a terrible consequence, as you know better than anyone," Justice Miller said.

Mr Bentley said while it was a very sad case, "who's speaking for the baby?"

Those charged with offences should be prosecuted to the "letter of the law", he said.

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 must 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 out-weigh the culpability of the offender's actions."


 


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