Discharge (sentencing)

A discharge is a type of sentence where no punishment is imposed. An absolute discharge is unconditional: the defendant is not punished, and the case is over. In some jurisdictions, an absolute discharge means there is no conviction despite a finding that the defendant is guilty. A conditional discharge is a sentence passed by a court whereby the defendant is not punished, provided they comply with certain conditions. After these conditions are met, the discharge becomes absolute. If the conditions are not met, the defendant is re-sentenced.

In most jurisdictions, a defendant is not regarded as having been convicted if he has been discharged.

Canada

In Canada, a conditional discharge is a sentence passed in criminal court in which an individual is found guilty of an offence but is deemed not to have been convicted. Although a discharge is not considered a conviction, a record of an absolute or conditional discharge is kept by Canadian Police Information Centre (CPIC) and by the charging police agency^[1] and is purged from the individual's police record after three years.^[2] The Criminal Records Act states that, except in exceptional circumstances, if the discharge is conditional, no record may be disclosed after three years. While no conviction occurs, the offender is required to fulfill certain conditions as part of the sentence. The offender is put on probation for a period of up to three years. If the offender fails to meet the conditions of the probation, or commits another criminal offence during the probation period, they may be returned to court where the discharge is cancelled and receive a criminal conviction and sentence on the original offence, and for breach of probation.^[3]

If the conditions of the discharge are met it becomes an absolute discharge.

A court may grant a conditional or absolute discharge only for offences with no minimum penalty, and a maximum penalty of less than fourteen years.

England and Wales

In England and Wales, a conditional discharge is a sentence vitiating the finding of guilt in which the offender receives no punishment provided that, in a period set by the court (not more than three years), no further offence is committed. If an offence is committed in that time, then the offender may also be re-sentenced for the offence for which a conditional discharge was given. Pursuant section 14 of the Powers of Criminal Courts (Sentencing) Act 2000 ^[4] and R v Patel [2006] EWCA Crim 2689^[5] the conditional discharge does not constitute a conviction unless the individual breaches the conditional discharge and is re-sentenced.

An absolute discharge is a lesser sentence imposed by a court, in which no penalty is imposed at all. Exceptionally, however, a court occasionally grants an absolute discharge for a very serious offence. (The signalman in the Thirsk rail crash is an example of this.) This usually signifies that while a crime may technically have been committed, the imposition of any punishment would, in the opinion of the judge or magistrates, be quite inappropriate.

In both cases, the passing of a discharge does not prevent the court from ordering the defendant to pay compensation to a victim, to pay a contribution towards the prosecution's costs, or to be disqualified from driving. A court may grant a discharge only if it is "inexpedient to inflict punishment", and may not do so for certain firearms offences or "three strikes" offenders. The law on discharges is set out in sections 12 to 15 of the Powers of Criminal Courts (Sentencing) Act 2000.^[6] (Note that section 14(3) does not prevent a court from disqualifying drivers.)^[7]

Scotland

In Scots law, there is no conditional discharge similar to that in England and Wales, although admonition has a similar effect with a conviction recorded although there is no punishment. However, section 246 of the Criminal Procedure (Scotland) Act 1995 provides that in dealing with cases other than where the sentence is fixed by law (eg murder)

• In cases on indictment, if it appears to the court, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order is not appropriate it may instead of sentencing him make an order discharging him absolutely.

• In summary cases, where the court is satisfied that the person committed the offence, and it is of the opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order is not appropriate may without proceeding to conviction make an order discharging him absolutely.

Section 247 further provides that an absolute discharge shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of laying it before a court as a previous conviction in subsequent proceedings for another offence, and shall in any event be disregarded for the purposes of any enactment which imposes any disqualification or disability upon convicted persons, or authorises or requires the imposition of any such disqualification or disability. However, courts can consider previous absolute discharges in the same way as the consider previous convictions.^[8]

Australia

In Australia, offenders can be discharged with or without being convicted, and with or without being placed on a good behaviour bond (or other penalties). These sentencing options vary from state to state.

New Zealand

In New Zealand, offenders can be "convicted and discharged" (gets a criminal record, but no other punishment) or "discharged without conviction" (no punishment and no criminal record). Note that defendants can be discharged without conviction even if they plead guilty to the alleged crime. This is usually done in cases where the negative impact of a conviction far outweigh the crime committed. For example, if a high-end businessman is caught in possession of a small quantity of marijuana, due to the small nature of the crime compared to the effects a conviction (even without a sentence) would have, he may be discharged without conviction.

References

1. ^ http://www.johnhoward.ab.ca/PUB/A5.htm
2. ^ http://www.rcmp-grc.gc.ca/cr-cj/pp-er-eng.htm
3. ^ http://www.mpss.jus.gov.on.ca/english/corr_serv/comm_corr/probation.html
4. ^ http://www.opsi.gov.uk/acts/acts2000/00006--c.htm#14
5. ^ R v Patel (2006) EWCA Crim 2689 on Bailii
6. ^ http://www.opsi.gov.uk/acts/acts2000/00006--c.htm#12
7. ^ http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880053_en_3.htm#mdiv46
8. ^ Sections 246 and 247 of the 1995 Act