What is a Diversion?
Diversion allows individuals charged with certain minor offences to avoid a criminal record by undertaking certain conditions.
Eligibility for Diversion
Section 59(2) of the Criminal Procedure Act 2009 (Vic) sets out when an accused may be eligible to undertake a diversion program:
(2) If, at any time before taking a formal plea from an accused in a criminal proceeding for a summary offence or an indictable offence that may be heard and determined summarily—
(a) the accused acknowledges to the Magistrates’ Court responsibility for the offence; and
(b) it appears appropriate to the Magistrates’ Court, which may inform itself in any way it considers appropriate, that the accused should participate in a diversion program; and
(c) both the prosecution and the accused consent to the Magistrates’ Court adjourning the proceeding for this purpose—
the Magistrates’ Court may adjourn the proceeding for a period not exceeding 12 months to enable the accused to participate in and complete the diversion program.
Diversion Process
Diversion Notice
At a summary case conference, the accused’s lawyer may negotiate for a diversion and outline the reasons for why diversion is requested. Reasons may include consideration of the nature and gravity of the offence(s), circumstances of the offending, personal mitigating factors, and the effect of a criminal record on the accused’s future employment opportunities, travel and immigration status.
The diversion program requires the prosecution’s approval to proceed. The prosecution will consider a range of matters such as the charges, evidence, prior criminal history, and any other matters the prosecution may deem relevant.
If the prosecution recommends diversion, the accused will be given a Diversion Notice.
Court Hearing
If the prosecution has consented to diversion, defence counsel will file a signed Diversion Notice with the court. The Magistrate will determine whether a diversion program is suitable for the accused by assessing the offence(s), any prior convictions and the accused’s personal circumstances. If a charge involves a victim, the Magistrate may seek their view on how the crime affected them and whether they agree with diversion.
Conditions
If the Magistrate is satisfied a diversion program is suitable for the accused’s offence(s), the Magistrate may attach certain conditions the accused must complete. Conditions may include:
- an apology to the victim;
- counselling and/or treatment;
- a donation to a charity organisation; and/or
- undertaking community work
The Magistrate will adjourn the proceeding for a period of no longer than 12 months to allow the accused to complete the diversion program.
If the diversion program is successfully completed:
- There will be no plea; and
- The Magistrates’ Court will discharge the accused without any finding of guilt.
If the prosecution or Magistrate does not recommend diversion to the accused, the charge(s) will be relisted in the Criminal List at the Magistrates’ Court.
Legal Advice
If you have been charged with a criminal offence, please do not hesitate to contact us.
