Diversion – How Does it Work?
This article was first published on 9 July 2021. The enactment of the Spent Convictions Act 2021 (Vic) means that certain findings of guilt may now become spent. Please read our articles about spent convictions to read more about the current legislation and process.
The article Diversion – How Does it Work? is written by Molly Deighton, Senior Associate, Doogue + George Defence Lawyers.
Molly is currently based at the firm's main office in Melbourne CBD. She regularly represents clients at the Melbourne Magistrates' Courts including other suburban and regional courts in Victoria.
Prior to joining Doogue + George, Molly was an Associate to a Supreme Court Judge in Victoria in the Criminal Division. Her work included research and assisting with the drafting of judgements for various criminal cases, including homicide, terrorism, and slavery. She has also interned at the Fitzroy Legal Service.
Many jobs and volunteer positions require a national police check, meaning a criminal history can have a serious impact on your future prospects.
While Victoria now has the Spent Conviction Scheme that will allow for certain criminal histories to be “spent” and not disclosed in a check, the Diversion program allows you to avoid a history from ever being recorded.
The Diversion program allows you to take responsibility for the offence/s you are charged with, but to avoid a criminal record.
Who is eligible for the Diversion program?
The Diversion program is generally for people charged with a criminal offence for the first time and who are facing a relatively minor charge or charges. However, you can still apply for a Diversion if you have a criminal history, especially if it is minor or dated.
According to section 59 of the Criminal Procedure Act 2009, to be eligible for Diversion you must:
- Be charged with a summary offence or an indictable offence that may be heard and determined summarily.
- Acknowledge responsibility for the offence/s.
- Get the consent of the prosecution. This can be the police office responsible for the case (the informant) or the police prosecutors working at Court and they must sign a Diversion Notice recommending you.
You cannot receive a Diversion for an offence that carries a minimum or fixed sentence or penalty. This includes offences that carry a mandatory licence penalty, such as certain driving offences under the Road Safety Act 1986.
You should speak with a lawyer to see if you are eligible for a Diversion.
In some cases, charges can be negotiated to a position where Diversion is possible. Often the police need to be convinced to recommend you. A lawyer can present arguments in your favour with supporting materials (character references, letters of apology, evidence of counselling).
What is the process?
Once the police have said they will support your application, they will sign a Diversion Notice. This usually includes proposed conditions, such as paying for any damage caused by the offence/s or writing a letter of apology to the victim.
Once this Diversion Notice is filed with the Court, your case will be adjourned for a Diversion hearing. This hearing is for a Magistrate to decide whether you should receive a Diversion. You will be given a form to fill out before the hearing with questions about your personal circumstances. It is important this form is filled in carefully, especially the questions about why this offence/s occurred.
Due to the COVID-19 pandemic, the Magistrates’ Court is currently allowing Diversion Hearings to proceed “on the papers”. This means that all materials are filed with the Court in advance and then on the Court date, a Magistrate considers your application in chambers. You are told their decision that same day, usually by email.
Diversion hearings can still happen in person at Court (or by video link) and oral arguments can be made as to why you should receive Diversion.
You should talk to a lawyer about the different options and what may be best for you.
What happens if I get a Diversion?
If you are granted Diversion by a Magistrate, you will be given a plan to sign. This Diversion plan will have conditions that must be completed by a certain date (no more than 12 months away). The conditions may include writing a letter of thanks to the police for recommending you, a donation to the Court charity fund, or to complete a relevant course or counselling.
You will need to sign the plan and then complete all of the conditions. If you do this, the charge/s will be dismissed at the end of the plan and you will have no criminal history.
What happens if I am refused Diversion?
If your application is refused, your matter will be adjourned to allow your lawyer to make oral submissions to try to persuade the Magistrate that Diversion is suitable. If the Magistrate still refuses your application, your matter will be adjourned for a Mention Hearing or you may elect to proceed as a plea of guilty and you will be sentenced for the charge/s. If your hearing has happened on the papers, this plea will be on another Court date. If your hearing is at Court, your plea can usually happen on that same day.
Once you are sentenced, you are able to appeal the decision to refuse you Diversion. You will need to lodge an appeal within 28 days against conviction and sentence (even if your sentence was without conviction). Your appeal would be heard in the County Court.
How do I increase my chances of a Diversion?
You only get one chance at a Diversion, unless you end up lodging an appeal. It is important to get the help of a lawyer who has experience in applying for Diversion and who knows what to prepare.
Once we review your case, we can see the important issues to address.
We can refer you to relevant courses or counselling and help you collect character references. It is good to pay for any damage or loss caused and to consider writing a letter of apology. These materials can be used to persuade the police to recommend you for Diversion, and then to support your application in Court.