Avoid a Criminal Record
Facing a criminal charge in New Zealand can be a daunting experience, particularly when a criminal law conviction could result in a permanent mark on your record.
A criminal record can affect employment opportunities, travel plans, and even immigration status, making it critical to explore every legal avenue to avoid a conviction.
Fortunately, New Zealand law provides several mechanisms to help individuals charged with offences, such as drink-driving or assault, achieve a conviction-free outcome. In this blog post, we’ll outline key strategies to avoid a criminal conviction in NZ, with a focus on the Section 106 discharge without conviction under the Sentencing Act 2002, police diversion, and other approaches. Engaging an experienced criminal lawyer is essential to navigate these options effectively.
Understanding the Impact of a Criminal Conviction in NZ
A criminal conviction in New Zealand is more than a legal penalty it can have far-reaching consequences.
Beyond fines or potential imprisonment, a conviction can limit job prospects, restrict international travel, and, critically, jeopardize immigration status for non-citizens.
For visa holders, even minor convictions, such as for drink-driving or assault, may trigger a Deportation Liability Notice (DLN) under the Immigration Act 2009, potentially leading to expulsion from New Zealand.
This makes it vital to work with a skilled criminal lawyer to minimize or avoid these outcomes.
Key Strategies to Avoid a Criminal Conviction
New Zealand’s legal system offers several pathways to avoid a conviction, depending on the nature of the charge and the defendant’s circumstances. Below, we explore the most effective options, including the Section 106 discharge without conviction, police diversion, and other defensive strategies.
1. Apply for a Section 106 Discharge Without Conviction.
A Section 106 discharge without conviction under the Sentencing Act 2002 is one of the most powerful tools for avoiding a criminal record in New Zealand.
This provision allows a court to discharge an offender without entering a conviction, even if they plead guilty or are found guilty, provided the consequences of a conviction would be disproportionate to the seriousness of the offence.
How a Section 106 Discharge Works
To secure a discharge without conviction, a criminal lawyer must demonstrate to the court that the direct and indirect consequences of a conviction—such as loss of employment, immigration issues, or travel restrictions—far outweigh the gravity of the offence. The court follows a three-step process:
- Assess the Gravity of the Offence: The judge considers the nature of the offence, the defendant’s conduct, and any harm caused. For example, a first-time drink-driving offence with no injury or property damage is typically viewed as less serious than a violent assault.
- Identify Consequences of a Conviction: The defendant must provide evidence of significant consequences, such as job loss, visa cancellation, or inability to pursue a career. For non-citizens, the risk of deportation is a compelling factor, as seen in cases where courts granted discharges to avoid immigration penalties.
- Determine Proportionality: The judge evaluates whether the consequences are “out of all proportion” to the offence’s seriousness.
This is a high threshold, requiring robust legal arguments and supporting evidence, such as affidavits from employers or immigration experts.
Charges Eligible for a Section 106 Discharge
A Section 106 discharge without a conviction is often viable for low- to medium-level offences where no minimum sentence is mandated. Common charges include:
Drink-Driving: First-time drink-driving offences, particularly those with no aggravating factors (e.g., accidents or high alcohol levels), are frequently considered for a discharge. Courts recognize the significant social stigma and immigration consequences of such convictions.
Assault: Minor assault charges, such as common assault without serious injury, male assault female charges may qualify, especially if the defendant shows remorse, or faces severe consequences like deportation or loss of employment.
Other Offences: Charges like careless driving, dishonesty offences such as theft, or disorderly behaviour may also be eligible, depending on the circumstances and the defendant’s background.
2. Seek Police Diversion
The Police Adult Diversion Scheme is another effective way to avoid a criminal law conviction in New Zealand. Diversion is typically offered for minor, first-time offences where the defendant admits guilt and takes responsibility. Unlike a Section 106 discharge, diversion occurs outside the formal court process, allowing charges to be withdrawn upon completion of conditions.
How Diversion Works
If eligible, a defendant meets with a diversion officer who sets conditions, such as community work, donations to charity, or attending rehabilitation programs. Upon successful completion, the charges are withdrawn, and no conviction is recorded. Diversion is rarely offered for drink-driving or reckless driving but may be available for minor assault or other low-level offences.
A criminal lawyer can negotiate with police to secure diversion and ensure the conditions are manageable. Importantly, diversion is discretionary, and a second chance is unlikely, so legal advice is essential to maximize this opportunity.
3. Plead Not Guilty and Defend the Charge
For some defendants, the best way to avoid a conviction is to plead not guilty and contest the charge at trial.
A skilled criminal lawyer can review the prosecution’s evidence, identify weaknesses, and build a robust defence.
If the charge is dismissed or you are acquitted, no conviction is entered.
This approach is particularly relevant for assault charges where evidence may be circumstantial or disputed.
4. Negotiate Charge Withdrawal or Reduction
An experienced*lawyer can negotiate with prosecutors to have charges withdrawn or reduced to less serious offences, potentially making diversion or a Section 106 discharge*more attainable.
For example, reducing an assault charge to a lesser offence like disorderly behaviour can improve the chances of a conviction-free outcome.
The Role of a Lawyer in Avoiding a Conviction
Navigating New Zealand’s criminal justice system requires expertise, especially when seeking to avoid a criminal law conviction in NZ. A specialized lawyer can:
– Assess eligibility for a Section 106 discharge or diversion.
– Draft legal documents and gather evidence, such as affidavits or expert opinions, to support applications.
– Present compelling arguments in court to highlight the disproportionate consequences of a conviction.
– Negotiate with prosecutors or police to achieve the best outcome.
For non-citizens, an experienced criminal lawyer is crucial to address the unique risks of deportation.
Auckland Criminal lawyer Naomi Cramer has a strong track record in securing discharges for those facing charges like drink-driving or assault.
Protect Your Future with Expert Legal Support
A criminal law conviction in NZ can have life-altering consequences, from career setbacks to immigration challenges.
By pursuing options like a Section 106 discharge without conviction, police diversion, or a robust defence, you can protect your future and keep your record clean.
Whether facing drink-driving, assault, or other charges, early intervention by a skilled lawyer is critical to achieving a conviction-free outcome.
If you’re in Auckland and need legal support, contact Naomi Cramer criminal lawyer today to explore your options and safeguard your rights.
