William Caskie

Frequently, when a prominent New Zealander is being sentenced for criminal offending, there will be discussions about Discharges without Conviction.  Discharges are commonly misunderstood and this article sets out what a discharge is and when it is likely to be available. A Discharge without Conviction is an Order that Court can make when a person has either pleaded guilty or been found guilty of a criminal offence.  Despite the finding of guilt, the Court may consider that the“direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.  This language comes from section 107 of the Sentencing Act 2002 which is the current test for a discharge without conviction. What this means is that there are situations where even a conviction (whether or not a sentence is also imposed) will have consequences for a person that are too serious to be justified by what they have done.  This can be either because the offending itself is so minor or because the consequences that the person will face if convicted are so significant.  Often, it is a combination of both of these factors that will mean that a discharge without conviction is appropriate. When deciding whether to grant a Discharge without Conviction, a Court will first determine how serious the offending is.  This is referred to as the “gravity of the offence”.  The gravity of the offence is more than just the seriousness of the act itself – it also considers how it came about, the personal circumstances of the offending and steps that they have taken subsequently.  For this reason, people who are seeking a Discharge without Conviction will often plead guilty and show remorse, both of which help reduce the seriousness of the offending in the Courts eyes. Once the Court has determined how serious the offending is, the Court will consider the consequences that the person will face if convicted.  In very low level cases, the Court may be satisfied that the ordinary consequences of the conviction (things like it being harder to get employment and the shame associated with a conviction) are enough that a conviction should not be entered.  More commonly, the Defendant will provide evidence showing that a conviction will have a particularly severe impact on them.  This commonly involves the loss of employment, consequences for their immigration status or consequences for their ability to travel in the future. Courts will not easily be persuaded that consequences are out of proportion to the gravity of offending.  Defendants must show both that the consequences are likely to occur and that the impact on them is severe.  For things like travel, they will need to show both that they have no path way to continue the travel they had planned and also that the travel is something that they were actually intending to do.  This is to prevent people from making speechless arguments that they will be impacted when in reality a conviction will not impact on their life.  Likewise claims of employment consequences or immigration consequences will generally need to be backed up by evidence from a person who can comment on the likelihood of those outcomes. In a handful of cases, defendants have pointed to the impact that it will have on their professional registration status as a reason why they should be discharged without conviction.  However, these arguments are commonly rejected.  This is for two reasons.  First, the Court is always very hesitant to prevent a professional registration body (such as the Law Society, the Medical Council or the Licenced Building Practitioners Board) from considering whether criminal offending has an impact on that person’s ability to fulfill their role.  Secondly, in most cases, the professional registration body will follow a detailed process to determine the outcome.  The removal of a practicing certificate is far from a foregoing conclusion in these cases, especially where the offending is minor.  For these reasons, Courts will usually refuse a Discharge without Conviction solely on these grounds and will require that person to face their professional body to determine the appropriate outcome for their registration. There are certain kinds of offences where discharges are more difficult to obtain – famously drink driving.  This is because the Courts review certain kinds of offending as inherently serious.  When this is the case, the Court must be persuaded that there are clear consequences before the Court will be persuaded that Discharge without Conviction is appropriate.  It is for this reason that many applications for Discharge without Conviction in cases like this fail. If a Discharge without Conviction is granted, then the legal effect of this is to treat the person as though they were acquitted of the charge.  This means that no sentence can be imposed on them.  It also means that they will have no criminal record for any purpose going forward.  The Court can, however, order a disqualification from driving or reparations in appropriate cases.  It also does not mean that a person is not required to report what has happened to a professional body or a government agency if they have a separate obligation to do so.  It does, however, mean that a person does not need to disclose a criminal conviction on job applications or travel applications either within New Zealand or internationally. For people who are unable to get a Discharge without Conviction, the Clean Slate legislation provides a useful alternative.  This legislation means that where a person has been convicted of a relatively minor offending (meaning they were not sentenced to imprisonment and if it is not of a specified class of offenses, such as sexual offending) that person will only have a conviction on their record for 7 years.  If at the end of 7 years they have had no further convictions of any kind then they may tell employers and other people within New Zealand that they have no criminal convictions.  This legislation only applies in New Zealand however, and so it does not impact on international obligations. Holland Beckett regularly advises clients on the availability of Discharges without Conviction for a range of offending.  Our lawyers have successfully argued discharges for drink driving, minor criminal offences and even offending under the Resource Management Act 1991.  If you would like to understand more about this process, please contact one of our legal specialists.

Neighbours are commonly grappling with issues about their fences: one neighbour may want to upgrade a boundary fence and the other refuses to pay their fair share, you may find out that your boundary fence is not on the true boundary of your property, or your neighbour may have built a fence which obstructs your view. Not only does this cause headaches, it can present real problems when you want to sell your property. What may seem like a trivial matter can turn into a lengthy and expensive dispute – often at the expense of your good neighbourly relationship. It is therefore important to know your rights and obligations when it comes to fences. Fencing Act 1978 Property owners can enter into agreements or covenants regarding fencing matters, which may be registered against the title of a property. If that happens, subsequent owners would be bound by the agreements, and future grievances could be avoided. However, if an agreement has not been reached, most of the law relating to fences is contained in the Fencing Act 1978. Building or repairing a fence – who bears the cost? Fences should generally be on a boundary line, and the cost of erecting, maintaining or relocating a boundary fence shared equally between the neighbours. You can compel your neighbour to share the cost under the Fencing Act, provided certain procedures are followed. There are some exceptions, however, such as where one neighbour damages the fence: they cannot then expect the other neighbour to pay half the cost of repair. Another example, common in some new subdivisions, is where there is an agreement or covenant on the title exempting an owner (usually the developer) from contributing to the cost of a fence. Replacing a fence - is the fence adequate? Your neighbour will only need to contribute to the cost of replacing a fence if the existing structure is not already “adequate” (meaning of a nature, condition and state of repair reasonably satisfactory for the purpose it serves or is intended to serve). Whether or not an existing fence is “adequate” will depend on a number of factors, including the location of your property (rural or residential) and the nature of the fence (hedge or wall). However, your own personal desires or expectations are not normally relevant. If there is a dispute about whether the existing fence is “adequate” it may be necessary for the Disputes Tribunal to determine the issue. What if it is not in the right place? Disputes surrounding boundary fences can become complex. A formal survey is usually required to identify the parts of the adjoining properties that are incorrectly marked by the fence. If a fence is not on the true boundary, one party may decide to build another fence on the boundary line, and the other party may be liable for half the cost. Or, if a fence encroaches one neighbours property, they may require the fence to be relocated. This can become a real issue where one party wants to sell their property. If the parties cannot agree to relocate the fence, the affected neighbour may apply to the Court for an order to remove or alter the fence which adversely impacts their land. Procedures Whether or not your neighbour agrees to your proposal to repair, replace or erect a fence, you must issue a fencing notice. A fencing notice puts your neighbour on notice of the proposed work and costs, and you must give them 21 days to respond. If your neighbour does not respond to the fencing notice within that time, you may commence the work and your neighbour can’t object later. If you fail to give your neighbour notice of your proposed work, you could be liable to pay for the costs of the fence yourself. There are some exceptions to this, such as if immediate work is required as a result of a fence damaged or destroyed by an accident. It is always important that you identify and notify the correct person: either the owner of the property, or an occupier by virtue of a tenancy not less than 10 years. This can be complicated if the neighbour is a unit title or cross lease. If the correct procedure is not followed, you may find yourself having to pay the full costs of the fencing work, or having to apply to the Court to help resolve the issue. To avoid this, we recommend you seek legal advice before issuing a notice or starting fencing work. Holland Beckett  has experience in fencing disputes and would be happy to provide you with our advice on your situation. For example, we can assist with drafting fencing notices, lodging claims in the Disputes Tribunal or District Court, and providing general advice on your liability to pay the costs for an adjoining fence.