The Criminal Justice Diversion Program, or “Diversion”, is the only way to avoid a criminal record in Victoria. Although a magistrate or mudge 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, a document confirming that Victoria Police deem the offender suitable for Diversion and suggesting the conditions for 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 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 criminal history; and
- Any other matter the police deem relevant.
If Victoria Police decides 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 has received a copy of the Diversion Notice as well.
Before the matter is heard in the Magistrates Court, the diversion co-ordinator 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.
On the morning of the hearing, the offender will have an interview with the diversion co-ordinator at the Court. The diversion co-ordinator’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 the offender 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.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.