- Conditional discharge
A conditional discharge is a sentence passed by a court whereby the defendant is not punished provided he or she complies with certain conditions. An absolute discharge is unconditional: in some jurisdictions, where no conditions are imposed at all, in others where the conditions have been successfully complied with.
In some jurisdictions, a defendant is not regarded as having been convicted if he has been discharged.
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 CPICand by the charging police agency [http://www.johnhoward.ab.ca/PUB/A5.htm] and is purged from the individual's police record after three years [http://www.rcmp-grc.gc.ca/crimrec/pandp_e.htm] The Criminal Records Actstates 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 his or her sentence. The offender is put on probationfor a period of up to three years. If the offender fails to meet the conditions of his or her probation, or commits another criminal offence during the probation period, he or she may be returned to court where the discharge is cancelled and the offender may be given a criminal conviction and sentence on the original offence as well as for breach of probation. [http://www.mpss.jus.gov.on.ca/english/corr_serv/comm_corr/probation.html]
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
England and Wales, a conditional discharge is a sentence 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 sentenced for the offence for which a conditional discharge was given. In English conditional discharges, a conviction and record of the discharge becomes part of the offender's criminal record, but does not count as a conviction except for certain purposes within the criminal justice system (unless the offender is resentenced for reoffending).
An absolute discharge is a lesser sentence imposed by a court, in which no penalty is imposed at all. It is normally passed when a defendant is being sentenced for more than one crime: after receiving a heavier sentence for his most serious crime, he may then receive no separate penalty for a more trivial crime.
Exceptionally, however, a court occasionally grants an absolute discharge for the whole of his conduct (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. [http://www.opsi.gov.uk/acts/acts2000/00006--c.htm#12] (Note that section 14(3) does not prevent a court from disqualifying drivers. [http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880053_en_3.htm#mdiv46] )
Scots law, there is no conditional discharge similar to that in England and Wales. However section 246 of the Criminal Procedure (Scotland) Act 1995provides 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. [ [http://www.opsi.gov.uk/acts/acts1995/ukpga_19950046_en_19#pt11-pb9-l1g246 Sections 246 and 247 of the 1995 Act] ]
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 suspects 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.
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