Page updated on: Friday April 23, 2010
A DEFERRED SENTENCE is when the Judge orders you to "come up for sentence if called upon" within a certain period. This means that you will be convicted but won't be punished at this stage. This gives the court the discretion to penalise you for this offence if you commit a second one. If that happens, you'll receive a sentence for the first and second offences.
The Sentencing Act also gives a Judge the discretion to discharge you without conviction (so that you have no criminal record) or simply to convict and discharge without a penalty.
A DISCHARGE WITHOUT CONVICTION will only happen occasionally as the Judge must be satisfied that if you were convicted "the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence". A discharge without conviction will rarely be given when an offence carries a mandatory minimum sentence. If you have been charged with a driving offence which carries a mandatory disqualification, the Judge will generally need to find that there are "special reasons" for this mandatory disqualification to be waived before considering your discharge application.
First, the Judge looks at the seriousness of the offending by looking at the particular facts of your case. Secondly, the Judge identifies the direct and indirect consequences of a conviction on you. Then the Judge determines whether those consequences of a conviction would be out of proportion to the gravity of the offending. Evidence such as medical certificates, letters from counsellors and character references are usually needed to persuade the Judge that a discharge would be appropriate.
A Police officer was charged with drunk driving in July 2006. He was off-duty and had been drinking when there was a car accident. As he had the only oxygen tanks in the rural area, he drove his Police car 2.5km down the road to the accident site. An evidential blood test came back with 106 milligrams of alcohol per 100 millilitres of blood (the limit is 80 milligrams). If convicted the Police officer faces the real likelihood of loosing his job if convicted.
Outcome: After he pleaded guilty, the Judge hearing his case discharged him without conviction. The Judge considered there were special reasons including the fact that the policeman knew he risked his career if he helped but still did so anyway, the circumstances leading to the incident, his 16 years as a Police officer, the real risk that he would lose his job if convicted and his longstanding contribution to the community. The consequences of conviction far outweigh the gravity of the offence in the circumstances of the case.
A CONVICTION AND DISCHARGE is available if the Judge is satisfied that a conviction is sufficient penalty in itself. You may however still be required to pay reparation if you are convicted and discharged.