Today, even a minor criminal conviction can create barriers to employment, housing, study opportunities, overseas travel, one’s immigration status and insurance coverage.

One of the ways the justice system recognises the penalising effect of a criminal record is through a sentencing option called a discharge without conviction.

A discharge without conviction acknowledges that not every offence deserves a criminal record and allows individuals to avoid a conviction in certain circumstances. Instead of convicting a person of an offence, the court issues a discharge. This means the individual will not have a criminal conviction on their record.

Eligibility and grounds for applying for a discharge without conviction

Not everyone charged with a crime will be eligible for a discharge without conviction. First, a person must plead guilty or be found guilty of an offence. This means that while someone is defending a charge, they cannot seek a discharge without conviction.

As for the grounds that must be met for a successful discharge without conviction application, the judge must be satisfied that the consequences of a conviction will be out of all proportion to the gravity (or seriousness) of the offence.

A judge must therefore ask three questions: How serious is the offence? What are the direct and indirect consequences of a conviction for the individual before the court? And finally, are the direct and indirect consequences of a conviction out of all proportion to the seriousness of the offence?

The seriousness of the offence will include the type of offence committed, the circumstances behind the offending, the maximum penalty of the offence and harm caused to any victim involved.

Direct consequences of a conviction can be loss of a job, exclusion from a profession, or loss of immigration status. Indirect consequences could include loss of a future career path, inability to travel overseas, difficulty getting insurance, and effects on others such as family members or employers.

In determining whether the consequences would be out of all proportion to the gravity of the offending, the court will consider the individual’s personal characteristics and actions, such as youth, remorse, lack of previous convictions, efforts to make amends with any victim, and rehabilitative efforts where relevant.

The court will carefully consider each application for a discharge without conviction on its own merits, taking into account the circumstances and the factors mentioned above.

This sentencing outcome balances justice with mercy, providing a second chance to those who may have made a one-off mistake or those whose circumstances suggest a conviction would result in excessive and disproportionate consequences. If you are charged with an offence and think you may be eligible for a discharge without conviction, we recommend obtaining legal advice.