What is Diversion?

The Criminal Justice Diversion Program was introduced in Victoria in 1997 through a joint venture between the Broadmeadows Magistrates’ Court and Victoria Police. It is now available in all Magistrates’ Courts in Victoria.

If you are granted a diversion, then you have avoided any form of criminal record. Diversion is the first prize for any offender accepting responsibility for criminal or traffic related offending. How you approach obtaining a diversion is something that should be well considered.

Dribbin & Brown Criminal Lawyers have handled hundreds of diversion hearings. We have offices in Ringwood, Moorabbin, Frankston, Geelong, Dandenong and the Melbourne CBD and we have conducted diversion hearings at nearly all Magistrates’ Courts around Melbourne.

What does it mean to successfully comply with a diversion?

If you complete the Diversion Program, you avoid a record. This is very different to a non-conviction outcome.

If you successfully complete the Diversion Program you will have no disclosable recorded outcome on your record.

This means that following a record check your record will be clean in regard to the diverted matter.

How do you get a diversion?

The Diversion Program is usually for first time offenders who have been charged with low-end offences. That said we have achieved diversion for clients charged with possessing child pornography, threats to kill, assault and possess prohibited weapon in a licenced venue. These were amazing outcomes but extreme and unusual examples, achieved by very careful consideration and by balancing the finer nuances of each case.

Although the legislation does not stipulate that diversion is only for first time offenders, in practice it would be rare for an offender with prior criminal history to be granted diversion.

To obtain diversion:

  1. You must have a case before the Magistrates’ Court;
  2. You must take full responsibility for the offending and
  3. The offence must not carry a minimum or fixed sentence.
  4. YOU SHOULD CALL DRIBBIN AND BROWN, it is very dangerous to attempt to obtain a diversion without a lawyer, things can and often do go wrong and once they have, they often cannot be repaired. The above criteria can be circumvented in some circumstances within reason. Don’t blow your only chance at having no criminal record, our firm handles a large number of diversion related matters, call our office today to see if we can assist you.

What guidelines does Victoria Police follow in recommending diversion?

  1. Full admission is made to the arresting officer;
  2. Co-operation is demonstrated;
  3. The matter is not deemed too serious; and
  4. Diversion is approved by a sergeant.

So a police member, with the authorisation of a Sergeant, can recommend any matter in the Magistrates’ Court for diversion.

That does not mean however that it will be approved by a Magistrate. The other point to remember here is that points 1 – 3 are exactly that, guidelines, we have had a number of diversions both recommended by a police member and approved by a judicial officer that did not fit the above criteria.

What is the diversion process?

There are several stages to a diversion.

Firstly, the informant (the police officer who laid the charges) must recommend the offender for diversion. This is in the form of a Diversion Notice which is filed with the Prosecution and the Court.

The Diversion  Notice also stipulates any conditions that the informant deems appropriate. Common conditions include:

  • writing a letter of apology to the victim;
  • writing a letter of gratitude to the police;
  • making a donation to charity; and
  • completing an appropriate course or program, e.g. a defensive driving course or anger management.

Once the Diversion Notice is filed with the court, the file is allocated to the Diversion Coordinator. The Diversion Coordinator will contact the victim (if any) and determine their attitude toward the offending.

Even if the victim is opposed to you getting diversion, it may still be granted. The decision rests with the Magistrate to determine the case as a whole.

You will meet with the Diversion Coordinator on the morning of court to discuss the charges.You will be asked to fill out a questionnaire which is provided to the Magistrate, along with any other documents you may wish to provide to the Court.

The Diversion Coordinator will then present your file to the Magistrate for determination.This occurs ‘in chambers’, that is, in the Magistrate’s office. It is not done in open court. The Diversion Coordinator will advise you of the Magistrate’s decision.

If diversion is approved, you must go in to Court before the Magistrate for the diversion to be formally ordered.If diversion is refused, your matter will be transferred to the general criminal list of the Magistrates’ Court, and you may plead guilty or not guilty.

You are still entitled to plead not guilty if diversion is refused. If diversion is granted, you will be placed on a Diversion Plan. You must comply with all the conditions of the Diversion Plan by the due date or your matter will be brought back to court.

If you complete your Diversion Plan, the charges will be struck out on your matter’s return date. You will not need to attend Court for this to occur.

Can I get diversion for driving offences?

Diversion is not available for driving offences which attract a mandatory loss of license e.g. excessive speeding, drink or drug driving or refusing to do alcohol or drug testing.

Be aware that if you are placed on diversion for other driving offences, you will still be liable for any associated demerit points, as demerit points are managed by VicRoads and not the Magistrates’ Court. 

Can I get diversion for sex offences?

The simple answer is yes, but it is very rare. The other consideration here must be that in relation to the Sex Offenders Registration Act per section 3 under the meaning of “sentence”, sentence includes an order involving s59 of the Criminal Procedure Act (being diversion). This means that if you are granted diversion for an offence that carries mandatory sex offenders registration, then this will still occur even if your matter is diverted. We have been involved in matters involving child pornography possession that resolved by way of diversion but still resulted in mandatory sex offenders registration, again this is very rare.

In a technical sense it also means that it would be open to a Magistrate to impose sex offenders registration whilst simultaneously granting diversion in relation to an offence that did not attract mandatory registration although we have never had a matter where this has happened. We have had a number of matters relating to sexual assault and indecent acts that have resolved by way of diversion, again, it has been a fairly rare occurrence and only resulted after extensive negotiations with the prosecution.

Diversion Legislation

Section 59 Criminal Procedure Act 2009 states:

 1. If, at any time before taking a formal plea from an accused in a criminal proceeding for a summary offence or an indictable offence that may be heard and determined summarily

(a)       the accused acknowledges to the Magistrates’ Court responsibility for the offence; and

(b)       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

(c)        both the prosecution and the accused consent to the Magistrates’ Court adjourning the proceeding for this purpose—

the Magistrates’ Court may adjourn the proceeding for a period not exceeding 12 months to enable the accused to participate in and complete the diversion program.

3. An accused’s acknowledgment to the Magistrates’ Court of responsibility for an offence is inadmissible as evidence in a proceeding for that offence and does not constitute a plea.

4.     If an accused completes a diversion program to the satisfaction of the Magistrates’ Court—

(a)       no plea to the charge is to be taken; and

(b)       the Magistrates’ Court must discharge the accused without any finding of guilt

5.     If an accused does not complete a diversion program to the satisfaction of the Magistrates’ Court and the accused is subsequently found guilty of the charge, the Magistrates’ Court must take into account the extent to which the accused complied with the diversion program when sentencing the accused.

6.     Nothing in this section affects the requirement to observe the rules of natural justice.

7.     This section does not affect the incurring of demerit points under the Road Safety Act 1986 or regulations made under that Act.