What is diversion?

First time offender? Wanting to avoid a criminal record? Keep reading …

Criminal Justice Diversion Program

The Criminal Justice Diversion Program allows first time offenders to avoid a criminal record by completing tasks or conditions that are agreed between the parties and the Court. This program is available in Magistrate’s Courts state wide. The agreement made between the parties generally goes for a period of one year, however this may differ depending on the circumstances of the matter.

Tasks that offenders may be required to complete include but are not limited to:

• Writing a letter of apology to the victim;
• Undergo counselling – for example to assist with anger management or treat drug and alcohol
• Make a donation;
• Attending relevant courses;
• Abiding by a curfew;
• Not associating with certain people; and
• Undergo community work.

If these tasks are successfully completed, the charge will be discharged by the Court.

What factors need to be satisfied to be eligible for a diversion?

1. Must be an offence triable summarily in the Magistrate’s Court;
2. The offence must not be subject to a minimum or fixed sentence or penalty;
3. The offender must acknowledge that they are responsible for the offence;
4. Both the accused and prosecution must agree with the diversion;
5. Offence cannot be deemed as “serious”; and
6. Section 49(1) of the Road Safety Act 1986 is exempt from diversion.

What are the positives of being granted a diversion?

1. Allows first time offenders a second chance with no criminal record;
2. Can lead to rehabilitation through the tasks or conditions enforced;
3. Encourages honesty;
4. Aims to reduce re-offending;
5. Considers the opinions and impact of all parties – informant, offender, Magistrate/Judicial officer, diversion coordinator and victim.

Prosecution consent

If the informant responsible for the matter is agreeable to the diversion, this puts the offender in a much better position. Although it is the consent of the prosecutor that is required, it is common practice for prosecutors to be guided by the informant’s view.  It can be a good idea for the offender to ensure that in making a decision, the informant is aware of the following factors:

The offender’s personal circumstances and mitigating factors, for example:

• Age;
• Dependents;
• Risk of loss of employment;
• Cooperation;
• Mental health;
• Willingness to rehabilitate;
• Childhood trauma;
• Remorse;
• Physical illness/impairment; and
• Good character.

The impact having a criminal record will have on the offender’s life, for example having a criminal record can negatively impact individuals in the following areas:

• Employment opportunities;
• Reputation in the community;
• Traveling overseas;
• Renting a property;
• Child adoption;
• Obtaining finance to purchase a home; and
• Obtaining certain licenses.

The informant may be agreeable to negotiate the conditions of the diversion. However, it is important to note that an informant is unlikely to consent to a diversion if the offence involves family violence or driving offences.

Can an offender apply for a diversion if they have prior convictions?

The general rule is that a diversion is only applicable to those with no prior convictions. However, a diversion can be applied to an offender with a prior criminal record if it is considered appropriate in the circumstances. It is most likely that re-offenders will be deemed as unsuitable for a diversion. Although unlikely, it is still possible for a diversion to be granted more than once.

What does the process of applying for a diversion involve?

1. Prosecution files Diversion Notice;
2. If the matter involves a victim – the victim’s opinion will need to be considered. This can involve whether the victim agrees with the diversion, the impact the offence had on the victim and any compensation the victim deems reasonable;
3. The offender will be interviewed by a Diversion coordinator. The coordinator will assess the suitability of the diversion program to the offender; and
4. If a diversion is deemed suitable by a Magistrate or judicial officer a diversion plan will be drafted. This plan is a one-page document that includes the length of the program and the conditions/tasks that must be satisfied by the offender.

What happens if an offender is deemed unsuitable for diversion?

If an offender is deemed unsuitable for a diversion their matter will be referred back to the mention list at the Magistrates Court. All factors involved in the process of applying for a diversion cannot be used against the offender in Court and is considered as inadmissible.

Need legal advice now?

Call 03 8590 8390 to book a consultation with a criminal lawyer in Melbourne today!

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

Last updated: 21 September 2021 Article by: Halil Gokler