Discharge Without Conviction in Auckland: How the Section 106 Test Works

Last updated October 2026

If you have been charged in Auckland and a conviction would cost you a job, a visa or the chance to travel, the question that matters most is whether you could leave court without one. New Zealand law allows for that, but only through a formal application and a strict legal test. This guide explains how a discharge without conviction works, what judges weigh, and what you can do early to give an application its best footing.

What a discharge without conviction actually is

A discharge without conviction lets a court deal with a charge without entering a conviction, even though the person has pleaded guilty or been found guilty. The power sits in section 106 of the Sentencing Act 2002, and the Act says a discharge under that section “is deemed to be an acquittal”. In practical terms, the charge does not go onto your criminal record.

That makes it one of the most valuable outcomes in the District Court, and one of the most misunderstood. It is not automatic, it is not reserved for people with impressive careers, and it is not a quiet favour from the judge. It is an application, decided on evidence, against a legal test that the courts treat as demanding.

It is also not available for every charge. Section 106 does not apply where the law requires the court to impose a minimum sentence for the offence.

The section 106 and 107 test

Section 107 sets the rule the judge has to apply: the court must not discharge someone without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The District Court has published a judge’s explanation of how the test works in practice, and it makes the point that “out of all proportion” is a much higher bar than consequences simply outweighing the offending.

Judges work through it in three steps.

1. How serious was the offending?

The court looks at the offence itself and the way it was committed: the conduct, whether harm was intended, whether it was a one-off or repeated, and the effect on any victim. The maximum penalty matters too, because a higher maximum marks a more serious offence. Personal factors can lower the gravity, such as youth, genuine remorse, efforts to put things right, or a disability. Previous convictions, earlier discharges and a lack of remorse push the other way.

2. What would a conviction cost you?

This is where most applications are won or lost. The consequences have to be real and specific to you. The kinds that come up most often:

• losing a job, or being shut out of a profession or registration
• immigration status, a visa application or residency
• travel, especially to countries that ask about convictions at the border
• a future career or course of study that requires a clean record
• effects on family members or an employer who relies on you

A general worry that “a conviction looks bad” is not enough. The District Court guidance is clear that there has to be a real risk the consequence will happen, which is a high standard.

3. Are those consequences out of all proportion?

Finally, the judge weighs step two against step one. The more serious the offending, the more serious the consequences need to be before a discharge is justified. A minor first offence and a career-ending consequence sit very differently from a serious assault and a vague concern about travel.

Discharge without conviction compared with the other options

People often confuse a section 106 discharge with outcomes that sound similar. They are not the same, and the difference matters for your record.

Two of these points catch people out. Being declined Police Diversion does not stop you applying for a discharge without conviction, because they are separate processes run by different decision-makers. And a judge who grants a discharge can still make other orders, such as costs, reparation to a victim or, for driving offences, a disqualification.

Building the application

An application is not a speech on the day. It is a file of evidence, and the strength of that file usually decides the outcome.

The affidavit

The core document is normally an affidavit: a sworn or affirmed statement setting out your circumstances and the consequences you face. It needs to be specific. Name the job, the registration body, the visa, the overseas trip, and explain exactly how a conviction would affect each one.

Supporting evidence

Judges look for independent proof that the consequences are real. That can include:

• a letter or affidavit from an employer about what a conviction would mean for your role
• written advice on immigration or professional registration rules
• travel requirements for work
• character references
• reports from counsellors or treatment providers

Steps you take yourself

Completing counselling or a programme that addresses the cause of the offending, taking part in restorative justice, and paying reparation all show the court you have taken responsibility. They also help on the first step of the test, because remorse and efforts to make amends can reduce the gravity of the offending.

Timing in the Auckland courts

Most applications in Auckland are heard in the District Court, whether at the Auckland District Court on Albert Street or one of the suburban courts such as North Shore, Waitākere or Manukau. The application is normally made at sentencing, which means the groundwork has to start well before then.

The single most useful thing to do is get advice before you enter a plea. Evidence about employment or immigration takes time to gather, some steps such as counselling take weeks to complete, and the way the case is handled early can affect what is available later. Leaving it until the week of sentencing is how strong applications end up thin.

If a judge refuses a discharge, the decision can be appealed. The time limits for criminal appeals are short, so that conversation needs to happen quickly too.

Getting advice in Auckland

Daniel Schellenberg is a criminal defence barrister with chambers on High Street in central Auckland, and he lists discharge without conviction applications as one of his areas of practice. His site explains that he prepares applications for clients in Auckland and across New Zealand, and that he has appealed refusals in the High Court and Court of Appeal.

If you are facing a charge and a conviction would affect your work, your visa or your travel, it is worth asking early whether a section 106 application is realistic in your case and what evidence it would need. You can book a confidential consultation through his website, or call the chambers on 09 600 3880.

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