Thread: Discharge Without Conviction

After seeing the reactions of some members of the forum in response of the refugee avoiding punishment for his firearm offence, it is clear that many people do not know about a particular piece of sentencing law we have in New Zealand called Section 106 discharge without conviction. From the Stuff article it looks like this refugee received Section 106 discharge without conviction.

Essentially this law allows a defendant who is found (or pleaded) guilty, to ask for forgiveness and not be convicted - hence the title "discharge without conviction".

How it works is that the defendant has to prove to the Court that the consequence of his/her conviction is all out of proportion to the gravity of his/her offence.

Gravity of the offence is essentially how terrible was the criminal act. For example, a person who punches another person in the chest and arm a few times, without causing injury, would be considered to be at the low-end of the scale for gravity of offence. A person who beats another person in the head causing permanent loss of vision would be considered to be at the high-end of the scale (see Losi Filipo)

Consequence of the conviction is about what negative consequence the defendant's conviction. Obviously all convictions will carry negative consequences. The issue is how severe is that negative consequence, whether it is all out of proportion to the gravity of the offence. Usually only the really bad ones would make the cut. For example if the conviction would mean termination of a career (happens with lawyers and accountants for dishonesty offences such as pity theft). It is important to keep in mind that it is a comparison exercise - just because the consequence is bad, or even very bad, does not mean discharge would be granted. If you murdered someone, you will not be discharged just because a murder conviction will make you lose your job.

Now turning to the refugee air rifle case. Firstly we look at the gravity of the offence. The victim is shot with an air rifle, from the sound of it, it was not a high powered PCP type as the victim 's injury did not require no ongoing medical care, the injury was not a serious one. Also in this area of the law, gravity of offence can be mitigated by conduct of the victim and the offender's age. See Sentencing Act section 9 (2). Here the offender is pretty young and the the victim has definitely acted poorly (note, none of these factors undermines the finding of guilt, they only apply to sentencing). These are well established legal principles. I cannot see how, after applying these principles to the facts, one can come to an conclusion that this was anything but a low-end gravity offence.

We then look at the consequence of conviction. consequence are usually unique to each defendant, and I have not see the sentencing note (judgment) by the judge. But I would assume immigration consequence to be a consequence that was taken into account. It has been well-established that bad immigration consequences can be taken into account, see High Court cases of Kumar and Jeon, and Court of Appeal cases of Ji and Waine, etc. Under the ordinary course of things, if this refugee was convicted he would probably face deportation and that would be the end of his chance for a better life.

Therefore the conclusion can easily be that the consequence of the conviction is all out of proportion to the gravity of the offence. Every year, many defendants receive discharge without conviction despite being found or pled guilty to crimes with far more serious gravity. I think this outcome is entirely open to the Judge.

This law has been in place for a long time and general perception is that it is works just fine. Usually a person will only ever get one discharge without conviction. It is about giving people who made a (relatively minor) bad decision a second chance, rather than "keep letting the criminals off".

I hope this helps and you guys dont get so worked up over this kind of news. Most people in this forum are not just gun owners, but also adults with a lot of responsibilities and a lot of social interactions. Anyone could one day be on the receiving end of S106.

Originally Posted by Ultimitsu

After seeing the reactions of some members of the forum in response of the refugee avoiding punishment for his firearm offence, it is clear that many people do not know about a particular piece of sentencing law we have in New Zealand called Section 106 discharge without conviction. From the Stuff article it looks like this refugee received Section 106 discharge without conviction.

Essentially this law allows a defendant who is found (or pleaded) guilty, to ask for forgiveness and not be convicted - hence the title "discharge without conviction".

How it works is that the defendant has to prove to the Court that the consequence of his/her conviction is all out of proportion to the gravity of his/her offence.

Gravity of the offence is essentially how terrible was the criminal act. For example, a person who punches another person in the chest and arm a few times, without causing injury, would be considered to be at the low-end of the scale for gravity of offence. A person who beats another person in the head causing permanent loss of vision would be considered to be at the high-end of the scale (see Losi Filipo)

Consequence of the conviction is about what negative consequence the defendant's conviction. Obviously all convictions will carry negative consequences. The issue is how severe is that negative consequence, whether it is all out of proportion to the gravity of the offence. Usually only the really bad ones would make the cut. For example if the conviction would mean termination of a career (happens with lawyers and accountants for dishonesty offences such as pity theft). It is important to keep in mind that it is a comparison exercise - just because the consequence is bad, or even very bad, does not mean discharge would be granted. If you murdered someone, you will not be discharged just because a murder conviction will make you lose your job.

Now turning to the refugee air rifle case. Firstly we look at the gravity of the offence. The victim is shot with an air rifle, from the sound of it, it was not a high powered PCP type as the victim 's injury did not require no ongoing medical care, the injury was not a serious one. Also in this area of the law, gravity of offence can be mitigated by conduct of the victim and the offender's age. See Sentencing Act section 9 (2). Here the offender is pretty young and the the victim has definitely acted poorly (note, none of these factors undermines the finding of guilt, they only apply to sentencing). These are well established legal principles. I cannot see how, after applying these principles to the facts, one can come to an conclusion that this was anything but a low-end gravity offence.

We then look at the consequence of conviction. consequence are usually unique to each defendant, and I have not see the sentencing note (judgment) by the judge. But I would assume immigration consequence to be a consequence that was taken into account. It has been well-established that bad immigration consequences can be taken into account, see High Court cases of Kumar and Jeon, and Court of Appeal cases of Ji and Waine, etc. Under the ordinary course of things, if this refugee was convicted he would probably face deportation and that would be the end of his chance for a better life.

Therefore the conclusion can easily be that the consequence of the conviction is all out of proportion to the gravity of the offence. Every year, many defendants receive discharge without conviction despite being found or pled guilty to crimes with far more serious gravity. I think this outcome is entirely open to the Judge.

This law has been in place for a long time and general perception is that it is works just fine. Usually a person will only ever get one discharge without conviction. It is about giving people who made a (relatively minor) bad decision a second chance, rather than "keep letting the criminals off".

I hope this helps and you guys dont get so worked up over this kind of news. Most people in this forum are not just gun owners, but also adults with a lot of responsibilities and a lot of social interactions. Anyone could one day be on the receiving end of S106.

Thankyou for the posting. I clearly understand the reason for the Judges findings now that you have explained it. I can say though that during my entire life having owned an air rifle from when I was nine a single shot 22 at fourteen etc etc to this day, that I have never pointed a fire arm at another person - even with the bolt out despite plenty of times as a young bloke being in a situation where 'Revenge' or 'Payback' enters your head - scraps over birds, damage to vehicles etc. To go home and get an air rifle and come back looking for trouble doesn't fill my heart with warmth and forgiveness sorry.

deport the little scumbag. no need for people like that here

The victim is shot with an air rifle, from the sound of it, it was not a high powered PCP type as the victim 's injury did not require no ongoing medical care, the injury was not a serious one

People have been killed by similar airguns in NZ in recent times, it could well have killed the victim. The fact that it didn't, there was premeditation, and he used a potentially deadly weapon against a person because he didn't like what came out of the victim's mouth (allegedly). Justice was not done here.

Yeah, he shot someone with an air rifle. That’s not on. Send him home. What if he had access to a larger caliber? There is the intent behind his action.
His action or consequence of his action was minor because it was “only” an air rifle. But what was his intent? The same intent with a greater capability would mean either grievous bodily harm or maybe death to the victim.
What if he stabbed someone but it was with a butter knife, not a hunting knife? Same intent, smaller injury.. still stabbed someone.

Originally Posted by Tommy

People have been killed by similar airguns in NZ in recent times, it could well have killed the victim. The fact that it didn't, there was premeditation, and he used a potentially deadly weapon against a person because he didn't like what came out of the victim's mouth (allegedly). Justice was not done here.

if the victim was blinded or dead, then the gravity of the office would be high or very high (maybe even a different offence), the defendant would be unlikely to meet the test and discharge would probably not given. Gravity of the offence is assessed by the actual offence, not what could have happened.

Premeditation is an aggravating factor in sentencing under Section 9(1) of sentencing act. But it is not an be-all-end-all factor. It is somewhat mitigated by the fact that he was provoked by the victim.

You may not think justice is not done, that is fine. I understand we all have different moral judgement and standard. But as far as applying the established law goes, there was no error that I could see.

He had access to a Air Gun -

he chose to use a weapon that he had access too

Lucky he didn't have access to a "Large Calibre Gun"

Originally Posted by Ultimitsu

if the victim was blinded or dead, then the gravity of the office would be high or very high (maybe even a different offence), the defendant would be unlikely to meet the test and discharge would probably not given. Gravity of the offence is assessed by the actual offence, not what could have happened.

Premeditation is an aggravating factor in sentencing under Section 9(1) of sentencing act. But it is not an be-all-end-all factor. It is somewhat mitigated by the fact that he was provoked by the victim.

You may not think justice is not done, that is fine. I understand we all have different moral judgement and standard. But as far as applying the established law goes, there was no error that I could see.

The judge hasn’t broken the law, but he has broken the trust of the average joe kiwi I imagine. Refugees can enter our country and shoot our people, and if it doesn’t kill them there will be no repercussions

laws made for guidance of wise obeyance of the fool!
this bloke gets off on a legal technicality and you come on here spouting so virtuously about it and chiding responsible gun owners for there attitude .
FFS has it never occured to you that whenever this shit goes down we get tarred with the same brush and labelled deviant as as a group.
So an obscure piece of law exists big deal -it does not alter in essence what this clown &co did which if you applied commonsense amounts to a gross overreaction.
mate i see this sort of shit all the time working in mental health .
one can be as nutty as a squirrels turd yet the law has it enshrined that that person can (at taxpayers expense) hire legal counsel ad infinitum to contest their legal detention.
one guy i managed (guilty of attempted murder) -did this six times with a snowballs chance in hell.
nup he did not suceed and just as well!

the legal beagles love this cause it means they can be extending the process suck more out of the public titty.

yes youve got a right to express your opinion ,but you need to think who youre dealing with before you start to sound like a new age fundamentalist gospel preacher!

Originally Posted by kotuku

laws made for guidance of wise obeyance of the fool!
this bloke gets off on a legal technicality and you come on here spouting so virtuously about it and chiding responsible gun owners for there attitude .
FFS has it never occured to you that whenever this shit goes down we get tarred with the same brush and labelled deviant as as a group.
So an obscure piece of law exists big deal -it does not alter in essence what this clown &co did which if you applied commonsense amounts to a gross overreaction.
mate i see this sort of shit all the time working in mental health .
one can be as nutty as a squirrels turd yet the law has it enshrined that that person can (at taxpayers expense) hire legal counsel ad infinitum to contest their legal detention.
one guy i managed (guilty of attempted murder) -did this six times with a snowballs chance in hell.
nup he did not suceed and just as well!

the legal beagles love this cause it means they can be extending the process suck more out of the public titty.

yes youve got a right to express your opinion ,but you need to think who youre dealing with before you start to sound like a new age fundamentalist gospel preacher!

owe you a beer !!!

Now turning to the refugee air rifle case. Firstly we look at the gravity of the offence. The victim is shot with an air rifle, from the sound of it, it was not a high powered PCP type as the victim 's injury did not require no ongoing medical care, the injury was not a serious one. Also in this area of the law, gravity of offence can be mitigated by conduct of the victim and the offender's age. See Sentencing Act section 9 (2). Here the offender is pretty young and the the victim has definitely acted poorly (note, none of these factors undermines the finding of guilt, they only apply to sentencing). These are well established legal principles. I cannot see how, after applying these principles to the facts, one can come to an conclusion that this was anything but a low-end gravity offence.

Disagree, he shot someone end of story. If you are arguing the victim "asked for it" then I would suggest you are part of the problem we have with the whole justice system.

Originally Posted by mikee

Disagree, he shot someone end of story. If you are arguing the victim "asked for it" then I would suggest you are part of the problem we have with the whole justice system.

Agree with this principle, if someone hits or rapes a lippy woman would she have asked for it too?

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I am just telling you what the law is. I am not arguing that the victim "asked for it". The law is well established that the victim's poor or provocative conduct is a mitigating factor for the seriousness of the offence. This law has also been around for a very long time. I would think it was first established as a case law precedent, then adopted by the Parliament so now it is in a statute. If you do not like it, write to your local MP ask for an amendment to the law. Amendments to laws happen all the time, that is what we all pay the MP's salary for.

Originally Posted by Ultimitsu

Now turning to the refugee air rifle case. Firstly we look at the gravity of the offence. The victim is shot with an air rifle, from the sound of it, it was not a high powered PCP type as the victim 's injury did not require no ongoing medical care, the injury was not a serious one. Also in this area of the law, gravity of offence can be mitigated by conduct of the victim and the offender's age. See Sentencing Act section 9 (2). Here the offender is pretty young and the the victim has definitely acted poorly (note, none of these factors undermines the finding of guilt, they only apply to sentencing). These are well established legal principles. I cannot see how, after applying these principles to the facts, one can come to an conclusion that this was anything but a low-end gravity offence.

I see how you reason ultimitsu, but need for ongoing victim care also depends on where the projectile hits. If you bring a weapon to bear on someone and discharge it, THERE you have the gravity of the offense. Even arguing that he aimed a safe place you can as well say he was a crap shot, but as they say, the benefit of doubt goes to the defendant.

Soe Bai will no doubt also benefit from being on an intelligence watch list for the rest of his life, which will go some way to mitigating any risk he poses. Forget about travel to the US or to Australia. There are always consequences even if a court lets you off. I hope he'll have the moral courage to turn his back on his violent roots, go straight for the rest of his life and prove the judge right. That would be a good outcome. Some would of course say it is not worth the risk, but it's a tricky one to deal with real refugees who are also really violent. One does not exclude the other.

Originally Posted by Brakelie

Agree with this principle, if someone hits or rapes a lippy woman would she have asked for it too?

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No conduct of the victim - foolish or poor or otherwise - can possibly excuse rape as a reaction in the slightest. I think you (attempted rhetorical) question is not well thought out.

But hitting? Yeah, depends on the actual circumstance, see Tait.

"
[3] In response the complainant came up to the passenger side of Mr Tait’s
vehicle. The window was down. She leant into the vehicle and began shouting at
Mr Tait, disputing his accusations about her driving. As she shouted at Mr Tait, he
shouted back. He then struck her across the face with his open hand.

[15] In assessing the gravity of offending, the background circumstances are
relevant, and is of particular relevance if there are elements of provocation.
R v Taueki stands for the proposition that provocation is relevant to culpability for a
charge of grievous bodily harm when it is serious and an operative cause of the
offending. It was stated that:7
It is not enough simply to claim to have been incensed by the actions of the
victim or another: rather, the sentencing Judge will need to be satisfied that
there was serious provocation which was an operative cause of the violence
inflicted by the offender, and which remained an operative cause throughout
the commission of the offence.

[16] In the discharge without conviction context the provocation must be
operative.

[18] In response the complainant was also guilty of an act of foolishness. Rather
than ignoring Mr Tait or responding in a moderate way, she came up to his car and
put her head inside his car and shouted at him. He had a two year old child in the
back. It can be observed that the act of foolishness by Mr Tait in pursuing and
shouting at the complainant was equalled if not surpassed by the act of foolishness
on the part of the complainant in responding in kind, and in particular in putting her
head inside Mr Tait’s car and shouting at him at close range. It was this act which
seems to me to have been the operative cause of the violence inflicted by Mr Tait.

[20] I differ from the Judge in my assessment of the gravity of the offending. I
see this as a minor assault, not intended to injure. It was reactive and in part an
attempt to stop the complainant from being in his car and shouting in front of his
daughter. I do of course acknowledge that this was in itself in response to a very
foolish act on Mr Tait’s part. However, in my assessment the gravity of his
offending was of a low order. In particular, I see the slap as a reaction to provocative
action by the complainant. Needless to say, if she thought Mr Tait was unfit to drive
then she should have contacted the Police rather than taking the matter into her own
hands.
"

This judgment is by Asher J, one of the best judges we had. He was elevated to the Court of Appeal not long after this judgment and recently retried.