Diversion Application for Someone With Prior Criminal Conviction

This is a case study on a diversion application for someone with a prior criminal conviction.

What is alleged to have occured?
Our client was charged with Unlawful Assault. The allegations were that the client punched the victim to his face and the back of his head following a brief verbal argument at a social event to raise money for the caravan park. The incident was witnessed by a large group of people who were at the fundraiser and they provided statements to the police.

What happened at court?
We represented the client at the Broadmeadows Magistrates’ Court on the charge of Unlawful Assault.

During the initial conference, the client told us about his personal circumstances and his desire to be offered full-time employment with his current employer. He also talked about how embarrassed he was by the allegations and that it was an immature response which he now regrets. We advised the client that if he was prepared to accept responsibility for the offence, that they can explore diversion.

The diversion program is an alternative sentencing option available to magistrates where a finding of guilt does not appear on an accused’s prior criminal history or on a police check. Diversion is generally granted to people charged with relatively minor offending who have never been before the courts. This means that a diversion application for someone with prior criminal conviction would pose some extra challenges.

The purposes of diversion are to:

1. Divert first time offenders away from the formal criminal justice system;
2. Provide restorative justice to victims;
3. Prevent re-offending;
4. Ensure appropriate reparation is made to the victim;
5. Utilise community resources for appropriate counselling or treatment; and
6. Rehabilitate offenders within the community

Diversion is not a sentence which you can simply ask for at court, the following conditions must be met:

1. the accused acknowledges to the Magistrates’ Court responsibility for the offence; and
2. 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
3. both the prosecution and the accused consent to the Magistrates’ Court adjourning the proceeding for this purpose.

The client had two major difficulties:

1. He had a prior criminal conviction for a serious offence back in the early 2000s.
2. The allegation that he punched the back of the victim’s head was serious because the risk of either serious injury or death is increased.

In any event, we telephoned the informant (the investigating police officer) and asked him if he would recommend the client for diversion. This is the first requirement. We discussed the client’s personal circumstances to the informant and explained that he would be disproportionately disadvantaged if a finding of guilt was recorded.

What was the result?
The informant eventually agreed to recommend the client for diversion.

This was certainly an excellent outcome for a diversion application for someone with prior criminal conviction.

Elements of Unlawful Assault:

• The accused applied force to the complainant’s body;
• The application of force was intentional or reckless; and
• The application of force was without lawful justification or excuse.

Related case studies

• Diversion Application for Unlawful Assault
• Diversion for Unlawful Assault
• Diversion for Assault
• Diversion for Assault Charges