discharge without conviction immigration

"Finally, the [Solicitor-General] argued that the Judge's decision to discharge without conviction was plainly wrong," said Justice Wylie. The question on the immigration form is not about guilt. We can let you know if the outcome of your case resulted in a conviction for the purposes of Canadian immigration. This has meant the client can honestly place a tick in the ‘no’ box next to the question: “Do you have a criminal conviction?” whether it be contained in a visa application, a job application or any one of other applications they make in the course of their lives. The police have successfully appealed a discharge without conviction after multiple assaults in Queenstown. A discharge without conviction is where you don’t receive a conviction despite pleading guilty or being found guilty after trial. That case sets out a three stage approach to considering whether a discharge is appropriate: (a) assessing the gravity of the offending A discharge without conviction can be granted only if the consequences are "out of all proportion" to the offence. In April 2016, Judge Cunningham granted the discharge without conviction. 2019), the Fourth Circuit held that a defendant who received a conditional discharge for a prior felony was not “convicted” of that crime within the meaning of the federal felon-in-possession statute. She noted there were no broken bones and Mohib stopped when the victim pleaded with him. In September 2015, Mohib pleaded guilty to charges of common assault, assault with a weapon and threatening behaviour. Overview. A discharge without conviction means you do not have a criminal record. In Canada, a 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. not guilty, dismissed). A discharge without conviction is a discretionary course of action contained in the Sentencing Act 2002 that the Court may adopt to avoid imposing a conviction. She suffered at least 5 bruises to her right thigh, a large bruise to her right arm and further bruises to her face and head. This will allow you to keep your criminal record clean. Has a second "wife" whom he married in a religious ceremony. The legislation that sets out the requirements for an application of discharge without conviction is the Sentencing Act 2002; specifically sections 106 and 107 are relevant. An Auckland man who beat his wife with a hammer was allowed to walk free. They then attended religious counselling at a local mosque. A criminal conviction in Canada will also not result in someone being inadmissible to Canada if the court grants an absolute or conditional discharge. After the movie ended, Mohib grabbed a hammer and told the victim: "This is for you". She noted there were no broken bones and Mohib stopped when the victim pleaded with him. A discharge without conviction for an attack with a hammer has been overturned by the High Court. He convicted Mohib and sent the matter back to the Auckland District Court for sentencing. A case that came out in May ’14 but has just come to my attention is I think worth mentioning to you all. In his judgment on Mohib, Justice Edwin Wylie said the district court judge failed to correctly identify the seriousness of the attack. We recognise that usually criminal convictions have far-reaching consequences for careers, future travel, immigration status and other types of personal applications, as well as a client’s personal and business reputation. An Auckland man who beat his wife with a hammer because she complained they weren't holding hands while watching a movie together was allowed to walk free from court. The Immigration and Nationality Act (INA) defines “conviction” as follows: Generally, the possible resolutions to a charge where there is no conviction, is a withdrawn charge, stayed charge, absolute discharge, or a conditional discharge. The Board of Immigration Appeals (BIA) has held that a state court action to “expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” has no effect on removing the underlying conviction for immigration … Where a court is satisfied that the federal offence has been proved, s 19B(1) empowers the court to either: dismiss any charge without recording a conviction: s 19B(1)(c); or conditionally discharge a person without recording a conviction: s 19B(1)(d). The content on this page was last reviewed on 21 August 2017. An opinion provided by one of Queen City Law’s specialist immigration lawyer’s confirmed that this was just a matter of time and process. Mr Mohib has denied full responsibility and he has sought to shift the blame to the victim and her family," said Justice Wylie. I recall this this case get any attention when the offender was discharged, in stark contrast to last week's media and social media uproar over the discharge of a young rugby player. She placed particular importance on the possibility the 31-year-old, who has three New Zealand-born children, might be deported to Pakistan despite the legal principle that a sentencing judge should not usurp the role of Immigration authorities. He was therefore not a felon under that law, and thus not barred from possessing a firearm under it. He told her: "We'll finish this after the movie, don't say a word". She begged for her life and Mohib stopped the attack. They ask if you have a conviction or not. Mohib's work visa was cancelled and he was declined a visitor visa, so he was in New Zealand illegally, and he might be deported. Sometimes, when the evidence is strong or the likelihood of an acquittal is low, it may be appropriate for a client to plead guilty, and then try to avoid a conviction by their lawyer making an application for a discharge without conviction pursuant to Section 106 of the Sentencing Act. Judge Lance Rowe​ granted Akashdeep Singh Gill​ a discharge without conviction in the Palmerston North District Court on Friday on a charge of bigamy. The victim said she was under pressure from her family and gave a false statement to police. We have successfully assisted many migrants to secure a visa by way of a special direction from the Minister of Immigration where the individual cannot be granted a temporary or residence class visa by standard visa processing and/or the grant of a character waiver by a branch office of Immigration New Zealand. It was issued on the basis of pleading not guilty but being found guilty. Barristers at Guardian Chambers have experience in assessing the chances of success and making applications for clients that they be discharged without conviction. Immigration law has its own definition of what constitutes a criminal "conviction." In Canada, a person is not considered to have a criminal record until a conviction … Examples of non-convictions include deferred adjudication, conditional discharge, dismissed charges, and nolle prosequi. The judge must be satisfied on the evidence that the consequences of conviction will be out of all proportion to the gravity or seriousness of the offence. Smith, 939 F.3d 612 (4th Cir. She noted obvious immigration consequences and the desperate need for Mohib to work again because of dire financial circumstances. The other woman left the room and Mohib slapped the victim in the face, then punched her multiple times in the head. Secondly, the Judge must identify the direct and indirect consequences of a conviction being entered. Applicants who will not be issued a temporary or residence class visa. There is a three stage test for Judges to go through in deciding whether to discharge you without conviction. He had doubts about Mohib's insight into the offending and said the victim's retraction of her initial statement to police was a "rather disturbing factor in the domestic violence context". Guardian Chambers have prepared numerous discharge applications and have had outstanding success in avoiding criminal convictions for their clients. 16. He hit her multiple times with blows to the arms and legs. The case of Omenma (Conditional Discharge – not a conviction of an offence) 2014 UKUT 314 IAC is important and worth knowing because it says that a Conditional Discharge in a criminal matter is not a conviction.. Applications for Discharge without Conviction We recognise that usually criminal convictions have far-reaching consequences for careers, future travel, immigration status and other types of personal applications, as well as a client’s personal and business reputation. Success in these applications is dependent on the nature of the charge, well-structured and persuasive oral submissions together with thorough written submissions being presented to the sentencing Judge which outline the severe consequences to the client of a criminal conviction. By imposing a discharge, the court avoids imposing the full impact of having a criminal conviction on the offender’s record for those who are “of good character, without previous conviction.” A discharge is particularly appropriate in cases where […] General Section 730 permits a judge to make a finding of guilt but not register a conviction against the offender. Discharges do not affect your immigration status. A discharge without conviction may … [12/06] Aggravated Felony Conviction Consequences (in addition to deportability): Ineligibility for most waivers of removal Ineligibility for voluntary departure Permanent inadmissibility after removal As this provision is new, many criminal barristers do not quite understand the implications on a conviction and therefore do not properly include such arguments in a discharge without conviction application. Under Section 106 of the Sentencing Act 2002, if a person who is charged with an offence is found guilty, the court may discharge the offender without conviction. www.whiteribbon.org.nz, The Hits 3pm Pick-Up with Laura McGoldrick, Stace, Mike & Anika: Three Moments You May have Missed, www.justice.govt.nz/family-justice/domestic-violence. Gill, 38, who was admitted to … Photo / 123rf. Police opposed the discharges without conviction, on the grounds the offending was serious and it was not certain Mohib would be deported. But her decision was later overturned by the High Court and labelled "plainly wrong" - the third time Judge Cunningham has granted a discharge without conviction and been successfully appealed. A discharge without conviction may be obtained if the consequences of a conviction are out of all proportion to the gravity of your offending. "For the reasons I have set out, I agree.". • Women's Refuge: Free national crisisline operates 24/7 - 0800 REFUGE or 0800 733 843 www.womensrefuge.org.nz• Shine, free national helpline 9am- 11pm every day - 0508 744 633www.2shine.org.nz • It's Not Ok: Information line 0800 456 450 www.areyouok.org.nz • Shakti: Providing specialist cultural services for African, Asian and Middle Eastern women and their children. Under immigration law, there is a conviction when: 1) a formal judgment of guilt or guilty plea if the adjudication of guilt has been withheld, and 2) the judge has ordered some form of punishment, penalty or restraint on liberty. "In my view, the Judge failed to fully appreciate the gravity of the offending and she placed excessive weight on the immigration consequences.". It's the third time Judge Cunningham has been over-ruled after granting a discharge without conviction. The Court can use its discretion to discharge without conviction under section 106 of the Sentencing Act 2002. 786507 >knocks up first wife (m. 2010, separated in 2017) >returns to India, knocks up 2nd wife (m. The judge may also order restitution (for example giving back stolen property) or compensation (payment to the victim). Please refer to this case for more. A conditional discharge by definition is not a conviction, however you get a criminal record. 1. ILR. Full stop. Indian bigamist discharged without conviction so he can move to Canada Anonymous 02/07/21(Sun)18:54:36 No. A discharge without conviction is deemed an acquittal. "The assault was vicious and premeditated. A conditional discharge (not to be confused with a conditional sentence) is a sentence in law that allows a person to be found guilty of an offence without having a conviction registered against him or her. Crisisline 24/7 0800 742 584• Ministry of Justice: www.justice.govt.nz/family-justice/domestic-violence • National Network of Stopping Violence: www.nnsvs.org.nz • White Ribbon: Aiming to eliminate men's violence towards women, focusing this year on sexual violence and the issue of consent. Being found guilty or admitting to guilt may constitute a “conviction” under the immigration laws, even if a person does not serve one day in jail, or even if the charges are subsequently dismissed. But if your discharge is taken back by the court and replaced with a conviction (see Step 3), it could affect your immigration status. Impact on immigration. Discharge without conviction Here is a snippet of information that may be of use to some. Describe the events that led to your committing the offence(s). The consequences of a conviction are often related to a person’s career, livelihood, immigration status or requirement to travel to certain countries.. Below are some examples of recent discharges obtained by Zoe: Judge Philippa Cunningham ruled the consequences of convictions for Yasir Mohib, who pleaded guilty to three violence charges, were out of proportion to the gravity of the offending and discharged him without conviction. The leading authority on the criteria for a discharge without conviction is the decision of the Court of Appeal in Blythe v R [2011] 2 NZLR 620. The High Court judge earlier ruled Judge Cunningham made an error in the law by usurping the function of immigration authorities. 2007 - 2021, Asset and Funds Forfeiture and Confiscation, Applications for Discharge without Conviction. Non-Convictions: Some sentences are not considered convictions for the purposes of Canadian immigration. [12/06] Aggravated Felony Conviction Consequences (in addition to deportability): Ineligibility for most waivers of removal Ineligibility for voluntary departure Permanent inadmissibility after removal Police opposed the discharges without conviction, on the grounds the offending was serious and it was not certain Mohib would be deported. They may treat your conditional discharge the same as a criminal conviction, and not let you cross the border. Level 3Cathedral House48-52 Wyndham StreetAucklandNew Zealand, PO Box 210Shortland StreetAuckland CityNew Zealand, Phone: +64 9 300 7307Email: guardian.chambers@justice.co.nz, © Because most, although not all, immigration consequences require a conviction, if your client does not have a conviction the immigration case might be saved. conditional discharge without a suspended sentence is not considered a part of the prison sentence for immigration purposes.] In May 2015, Mohib and his two wives were at home watching a movie. August 2016: High Court Justice Edwin Wylie overturns decision. Therefore, unless the law requires a minimum sentence for an offence, a discharge without conviction may be considered, and regardless of the offender’s occupation or status in society. In a pre-sentence interview, Mohib denied using a hammer and blamed the victim's parents for his frustration, which led to the attack. If you were not convicted of the offence, print “no conviction” and enter the date of the offence instead of the date of conviction, and include the date the courts dealt with your case and the disposition (i.e. NZ Herald: Hammer assault: Discharge decision… I received a conditional discharge for this issue. Guardian Chambers Firstly, the Judge must identify the gravity of the offending. He applied for discharge without conviction on basis that the attack was "spontaneous and out of character". The victim asked Mohib why he was holding the other wife's hand, but not hers. In deciding whether to use the section, the court must consider: It is similar to a section 10(1)(a) dismissal in NSW legislation. Also, a discharge without conviction can only be given if the particular offence doesn’t have a minimum sentence. "This was not a case where convictions would necessarily lead to deportation...Parliament has entrusted the immigration authorities with the obligation to consider whether persons convicted of offending ought to be allowed to remain in New Zealand. In April 2016, Judge Cunningham granted the discharge without conviction. The conviction date would be five years old in September 2020. Such an application will succeed only when the court can be persuaded, through a specialist lawyer defence strategy, that the consequences of a criminal conviction outweigh the seriousness of the offence. His family - who are all NZ citizens - would then struggle financially. Legally married to the victim, mother of their 3 children. Section 19B of the Crimes Act 1914 (Cth) allows a court to release a person without criminal conviction even if he or she is guilty of a Commonwealth Offence. The Solicitor-General appealed the decision on the grounds Judge Cunningham erred by usurping the role of immigration authorities, the offending was serious and the discharge without conviction was "plainly wrong". conditional discharge without a suspended sentence is not considered a part of the prison sentence for immigration purposes.] The guilty pleas, restorative justice and counselling reduced the seriousness of the offending, in her ruling. Dear Nubia: I was stopped for a violation and charged with theft of services. He apologised to his wife at a restorative justice conference and she wanted to reunite the family.