The Diversion program is a way of avoiding any form of criminal record. Victoria does not have spent conviction regime and the police have a policy of sometimes telling people about non-convictions that a Court has imposed. The Diversion program stops them doing that.
Diversion is covered by section 59 of the Criminal Procedure Act which includes the following aims:
- Ensure restitution is made to the victim
- Try to reduce re-offending
- Avoid people having criminal records (conviction or non-conviction)
- Assist the local community with donations and voluntary works
Eligibility for the Diversion program
Conditions of Diversion
There are 3 eligibility conditions:
- The Police Officer must recommend diversion and it be authorised by their boss.
This is the biggest hurdle that you normally encounter. If the Police Officer did not like you they can just refuse to agree to a diversion. Sometimes they can be turned around if they are given sufficient materials (letters of apology, character references etc). Sometimes a charge may come with a diversion notice attached which is great as it means the first step in the process has been completed. If your charge does not have a Diversion notice already attached, this does not stop you from getting Diversion.
The other hurdle is convincing the Magistrate of the appropriateness of a diversion
- It must be an offence that can be tried summarily.
The County Court has the power to overturn a Diversion refusal so if a Magistrate decides against diversion, you have the option of appealing that decision to the County Court. Drink driving, drive in a manner dangerous and excessive speeding charges can not be diverted. No offence that has a minimum or fixed of licence disqualification or penalty can be diverted.
- The accused must accept responsibility for the charge/s and acknowledge the truth of the facts in the summary of offending.
The Diversion Notice that the Police eventually provide if they agree will contain a number of proposed conditions. For example, write a letter of apology to the Informant as a sign of gratitude for being given the chance to participate in the Diversion program. Another condition may be to do some sort of course (road trauma awareness, men’s behavioural change program). A donation to a specified charity or to the Court fund is often a condition.
Process at court
The court will adjourn your case to a specific date for a diversion hearing.
You will be given a form to fill out either prior to Court or on the day of your Diversion hearing. It is very important how you fill that form out and fill it out properly. It contains personal history and other matter and confirms your understanding of the process and successful completion of this form will increase your chances of Diversion.
You will then be interviewed by the diversion Coordinator on the day of your hearing who will make an assessment as to whether they believe you are eligible. They will then complete a form and give your matter to a Magistrate or Judicial Registrar who make the actual decision about whether or not to grant you Diversion.
The Magistrate or Judicial Registrar will then make their decision about whether or not you are eligible for the Diversion program. It depends on the Court and the people involved as to whether they will grant or refuse your diversion in Court or in their Chambers. Sometimes your lawyer is asked to make further submissions in Court and a decision is then made.
What happens if I am successful?
If Diversion is granted, you will be given a Diversion plan to sign and if you successfully complete this plan, the charges against you will be dismissed at the end of your plan.
What happens if I am unsuccessful?
If you are unsuccessful in your application, your matter usually proceeds as a plea of guilty on that date in front of a different Magistrate and a sentence is imposed on you for the charges. You have the option to appeal the decision to refuse your Diversion to the County Court. To do this, you would need to lodge an appeal against conviction and sentence (even if you received a non-conviction result). You have 28 days to lodge this appeal. Your matter then goes to the County Court and is determined by a Judge.
How do I increase my chances of getting a diversion?
There are a number of strategies that are utilised at Doogue and George in order to maximise your chances at Diversion. Some of these include:
- Gathering character references that target the important issues
- Creating a letter of apology before you are ordered to do so. If you do feel sorry, don’t wait for Court to tell you to apologise do it now as this may assist with your Diversion. Once you have completed your letter, show it to your lawyer and they will then send a copy to the Informant.
- Attend an appropriate program (Road Trauma Seminar, Men’s Behavioural Change Course, Alcohol awareness etc)
- Do some voluntary work
Like with anything you can put in a lot of effort or none and just hope for the best.
You will only really have one shot at getting a diversion and your best shot is getting help from lawyers who have experience in this area.
If you ended up with a conviction or could not travel because of a non-conviction would that impact on your life or employment? Would you like to avoid having a criminal record for life? If the answer to any of those questions is “yes” then you should talk to us.
Check out some of the criminal cases we've defended which successfully resulted in a diversion: