I have been involved in the field of criminal law for 37 years – 26 ½ years as a member of the NZ Police and 11 years as a criminal defence lawyer. The transition from policeman to lawyer was, in my view, relatively seamless and my extensive experience in criminal investigation and prosecution has proved to be of immense benefit in terms of representing my clients.
As part of my services to clients, I will initially consider the police “Diversion” process which will leave the client without a criminal conviction – a result that is very much sought after by clients wishing to travel overseas or gain employment, where a conviction would normally disqualify them from even applying. Diversion is generally only available to first time offenders and the offence relatively minor. Such offences include, but are not limited to, drunk and disorderly behaviour, wilful damage, some thefts, and minor assaults. Diversion is not generally available for domestic violence and traffic offending. Should an applicant be considered suitable for diversion, the matter is removed from the court and the police prosecution service will then meet with the applicant and assign specific tasks to redress the “hurt” done. This may include making a donation of $100.00 to a charity of your choice, completing a number of hours of service in the community and writing a letter of apology to the victim. Once the prosecution service is satisfied that the applicant has completed all of the tasks assigned to him/her, the matter is then withdrawn and no conviction is entered by the Judge. Usually, name suppression occurs but this may require evidence of the harm of publication. There is no requirement for any further attendances at court.
In the event the offending by a client is considered to be too serious for diversion, a second option that may still leave the applicant without a conviction is what is termed, a “discharge without conviction”. Pursuant to section 107 of the Sentencing Act 2002, a Judge is permitted to discharge an offender without conviction provided he/she is satisfied that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”. What this means is that if a conviction were likely to ruin the future prospects of someone who shows considerable potential in their chosen field, then the Judge may discharge without conviction. By way of example, a person who is charged with possession of cannabis who wants to travel to America to advance his/her higher education may be considered an eligible candidate, as a cannabis conviction can be a bar to entry to the USA.