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Diversion & Discharge Without Conviction

A charge does not have to end in a conviction. New Zealand has two lawful exits: police diversion — a scheme that resolves first-time, less serious matters with no conviction at all — and a discharge without conviction under s 106 of the Sentencing Act, where a judge finds the consequences of convicting would be out of all proportion to the offence. Both are real, both are used every week, and both favour people who raise them early. Call 0800 461 100 free, any hour, to see whether either fits your situation.

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Discharge Without Conviction at a glance

Diversion

A police-run scheme, typically for first-time and less serious offending — complete the agreed conditions and the charge is withdrawn, no conviction

Discharge without conviction

A court order under s 106 Sentencing Act 2002: guilt is established, but no conviction is entered

The s 107 test

The consequences of a conviction must be out of all proportion to the gravity of the offence — travel, career, registration and visa consequences are the classic material

Timing

Both are raised early: diversion usually around the first appearances; a s 106 application is prepared before sentencing, with evidence

Not automatic

Neither is a right — eligibility, preparation and presentation decide them

How police diversion works

Diversion is the police prosecution service's scheme for keeping suitable first-time and minor matters out of the conviction system. Typical shape: you accept responsibility, complete agreed conditions — an apology, a donation, counselling or a programme, sometimes reparation — and the charge is withdrawn. No conviction ever exists.

Eligibility is assessed case by case: the nature of the offence, prior history, the victim's views. Some categories (family violence among them) are treated restrictively. The practical points: diversion is usually considered around the first appearances, it generally requires accepting responsibility, and asking about it — through the duty lawyer or your own — is a normal, expected step, not a favour. Talk it through with a lawyer now →

The s 106 discharge: how judges decide

A discharge without conviction is sentencing's safety valve. The court weighs three things (the s 107 gateway): the gravity of the offending (including your culpability and any steps you've taken since — reparation, counselling, apology), the likely consequences of a conviction, and whether those consequences would be out of all proportion to that gravity. If the gateway is passed, the judge has a discretion to discharge — guilt is established, but no conviction is entered.

What wins these applications is evidence, not assertion: a letter from the employer about the role a conviction ends, the professional body's fit-and-proper rules, the visa category that a conviction bars, proof of the counselling completed and the amends made. "It might affect my travel" loses; "here is the airline's policy and my employment contract" can win. Talk it through with a lawyer now →

Which path fits which situation

Diversion suits first-time, lower-level matters where police agree — it is earlier, cheaper, and leaves the cleanest record. The s 106 discharge operates where diversion is unavailable — the charge is more serious, or police declined — but the consequences of convicting are severe and provable. They are not alternatives to defending a charge you dispute: both involve accepting responsibility, so the first question is always whether the charge can be proved at all. That ordering — defence first, then exits — is exactly what early advice sorts out. Talk it through with a lawyer now →

What each outcome leaves behind

Completed diversion: the charge is withdrawn and no conviction exists, though a police record of the diverted matter remains internally. A s 106 discharge: no conviction is entered — for most purposes you have not been convicted of that offence — though the court record of the proceeding exists, and specific contexts (some overseas visa forms ask about charges, not just convictions) can still require disclosure. Answering "record" questions accurately after either outcome is its own small art; get the wording right before you fill in the form. Talk it through with a lawyer now →

Pursuing a conviction-free outcome

Test the charge firstBoth exits involve accepting responsibility — so first understand whether the charge is even provable. Free on 0800 461 100, any hour.

Raise diversion earlyAround the first appearance, through the duty lawyer or your own. If it is declined, note why — the reasons shape the s 106 alternative.

Build the s 106 application properlyEvidence of consequences, evidence of amends. A NZ$295 (GST inclusive) consultation with a New Zealand criminal lawyer — bookable on the call — is the difference between asserting and proving.

Discharge Without Conviction — your questions answered

Is diversion an admission of guilt?

Diversion involves accepting responsibility for what happened — that is part of the scheme — but it ends with the charge withdrawn and no conviction. If you dispute the charge, diversion is the wrong tool: test the case first.

What kinds of consequences persuade a court under s 106?

Concrete, evidenced ones: loss of an actual job or a specific career path, professional registration rules, immigration and visa criteria, travel restrictions that matter to your real life. The more specific and documented, the stronger — generalised embarrassment persuades nobody.

Can I get a discharge for drink driving?

It is sought often and granted sparingly — courts guard against routine discharges for drink driving, and the mandatory disqualification regime complicates it. It is not impossible with genuinely exceptional consequences and low-end offending, but go in with realistic expectations and proper evidence.

Do I answer "have you ever been convicted?" with yes after a discharge?

A s 106 discharge means no conviction was entered — so for most New Zealand purposes the accurate answer to a convictions question is no. But some forms (especially overseas visa forms) ask about arrests or charges, which is a different question. Read what is actually asked, and get the wording checked when the stakes are high.

I was refused diversion. Was that the end of it?

No — diversion decisions can be revisited in some circumstances, and the s 106 pathway remains. The refusal reasons matter: they tell you what the prosecution weighs, which is exactly what your discharge application then addresses.