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
There are 3 eligibility conditions:
- The Police Officer must recommend diversion and it be authorized 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). Often a charge may come with a diversion notice attached which is great. 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 does not have legislation covering diversions. So if a Magistrate decides against diversion, there is no point appealing that issue to the County Court. They cannot do anything about it. Drink driving, drive in a manner dangerous and excessive speeding charges can not be diverted. No offence that has a minimum or fixed disqualification or penalty can be diverted.
- The accused must plead guilty to the charge 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 for wasting their time. Or do some course (road trauma awareness). A donation to a specified charity or to the Court fund is often a condition.
The Court adjourns to a specific date for a diversion hearing.
You will be given a form to fill out (it is important how you fill that form out). It contains personal history and other matter and confirms your understanding of the process.
You would then be interviewed by the diversion Coordinator who will make an assessment as to whether they believe you are eligible. The actual decision will be made by a Magistrate or Judicial Registrar.
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.
How do I increase my chances of getting a diversion?
- Character reference targeting the important issues
- Letter of apology before you are ordered to do so. If you do feel sorry don’t wait for Court to tell you to apologize do it now.
- Show the letter to your lawyer first and they will then send a copy to the Informant.
- Attend an appropriate program (Road Trauma. 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 have only 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 you life or employment? If the answer to that is “yes” then you should talk to us.
Check out some of the criminal cases we’ve defended which successfully resulted in a diversion: