Diversion


The Criminal Justice Diversion Program, or “Diversion”, is the only way to avoid a criminal record in Victoria. Although a Magistrate or Judge may order no conviction following a plea hearing, Victoria Police still have the power to disclose a non-conviction order on a criminal record if they wish.

The Diversion Program is governed pursuant to section 59 of the Criminal Procedure Act 2009. It provides offenders with the opportunity to avoid any criminal record while ordering an offender to complete conditions that benefit themselves, victims and the community as a whole. Diversion matters are heard by either a Judicial Registrar or Magistrate in the Magistrates Court of Victoria.

Eligibility for Diversion

There are a number of circumstances that must be satisfied prior to an offender receiving a Diversion Plan from the Magistrates Court.

  • The offence is able to be finalised in the Magistrates Court and is not so serious that it must be heard by the County Court.
  • The offence is not subject to a fixed or minimum penalty, such as a minimum suspension period.
  • The offender must acknowledge responsibility for the offence as it is detailed in the Facts.
  • Victoria Police must offer a Diversion Notice – this Notice is a piece of paper confirming that Victoria Police deem the offender suitable for Diversion and suggesting the conditions which the Court should consider implementing as part of the offender’s Diversion Plan.

Negotiations With Police for a Diversion Notice

In some matters Victoria Police will offer a Diversion Notice to an offender without a formal request. In other matters, an offender or their lawyer will need to formally negotiate with Police for a referral into the Diversion Program.

During negotiations, it is important the Police are informed of an offender’s personal circumstances and the reasons why Diversion is requested. Relevant considerations may include employment and employment opportunities, travel requirements, community work performed by the offender and contextual factors about the offence.

Victoria Police may refuse to offer a Diversion Notice for the following reasons:

  • The offence is too serious;
  • The victim does not consent to the offender being offered Diversion;
  • The offender does not truly accept responsibility for the Facts of the offence;
  • The offender has a prior criminal history; and
  • Any other matter the Police deem relevant.

If Victoria Police decide that a referral to the Diversion Program is suitable, an offender will be given a copy of the Diversion Notice. It is useful for an offender or their lawyer to contact the Court to confirm the Court have received a copy of the Diversion Notice as well.

Before Court

Before the matter is heard in the Magistrates Court, the Diversion Coordinator at the Court will contact any victims of the offence. The victim will be asked:

  • Whether they agree with the offender obtaining Diversion; and
  • The amount, if any, of compensation sought from the offender arising from the offence.

The victim’s view is not definitive although it will be taken into consideration by the Court when deciding whether to approve the offender for Diversion.

Diversion Hearing

On the morning of the hearing, the offender will have an interview with the Diversion Coordinator at the Court. The Diversion Coordinator’s role is to identify the primary factors of the case and to advise the Magistrate or Judicial Registrar of suitable conditions for an offender’s Diversion Plan, should they be deemed suitable.

A Diversion Hearing is then conducted in open court, with the Magistrate or Judicial Registrar deciding whether an offender is a suitable candidate for Diversion.

If an offender is deemed suitable, the Court will prepare a Diversion Plan which may require the offender to:

  • Provide compensation to the victim;
  • Apologise to the victim, usually in a letter;
  • Donate money to a charity or community project;
  • Engage in counselling, rehabilitation or treatment;
  • Complete voluntary work hours;
  • Attend a driving course or Road Trauma Awareness Seminar;
  • Any other condition the Magistrate or Judicial Registrar deems appropriate.

If an offender is deemed unsuitable, the matter will be relisted for a summary case conference in the criminal list.

Do You Need A Lawyer?

As detailed above, there are two primary steps to obtaining Diversion. Firstly, an offender must receive a Diversion Notice from Victoria Police and secondly, they must be deemed suitable by a Magistrate or Judicial Registrar in open court.

During either of those stages, an offender may be rejected for inclusion within the Diversion Program. Once rejected, an offender’s matter must go through the general criminal list. If an offender pleads guilty, or is found guilty after a contested hearing, he or she will have a notation on their criminal record.

If you have been offered a Diversion Notice, or believe you may be eligible for one, we suggest you seek legal advice. Our criminal lawyers are available to provide expert advice and assistance while you navigate this process. The Armstrong Legal team can be contacted on 1300 038 223.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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