Diversion For Stalking and Trespass –– Dandenong Magistrates Court
Diversion For Stalking and Trespass Charges:
- Stalking x 2
- Trespassing x 9
- Failing to appear on bail x 1
Diversion For Stalking and Trespass Penalties:
Stalking has always been considered a serious offence and this is reflected in the recent inclusion of the offence within the Crimes Act 1958 (Vic). Section 21A of the Crimes Act 1958 (Vic) sets out the maximum penalty, being 10 years imprisonment. The offence of stalking requires the following to be proven beyond reasonable doubt:
- That an individual engage in a course of conduct, such as following or contacting the person by any means, with the intention of causing physical or mental harm, or causing someone to think harm may come to them.
Trespassing carries a maximum of 6 months’ imprisonment and is set out under s 9(1)(e) of the Summary Offences Act 1966 (Vic). The offence is proven where:
An individual, without authority, wilfully enters any private place or a Scheduled public place, unless for a legitimate purpose.
Diversion For Stalking and Trespass Facts:
Our client was a 22-year-old male at the time of the offence. He was charged trespassing in a kindergarten on several occasions, as well as leaving threatening notes and obscene drawings directed at the staff at the kindergarten.
Our client was arrested and interviewed where he made admissions to going to the kindergarten, however denied leaving any threatening notes or obscene drawings.
The informant in the matter charged him with offences and based their charges on evidence and statements from the staff at the kindergarten.
Our client had severe mental health issues and was extremely affected by the nature of the charges. He chose to leave the country and address his issues. Three years later he returned to Australia, having sought assistance in the interim period.
The Police eventually caught up with our client and he sought the assistance of our firm. Our client’s goal was to receive the lowest penalty possible, given he had already admitted some wrongdoing.
Diversion For Stalking and Trespass Program:
The Diversion Program is operated by the Magistrates’ Court of Victoria to enable first time offenders to avoid receiving a criminal record and divert them away from the criminal justice system.
Successful completion of the program results in the charges being marked as “discharged.” Unsuccessful completion results in the charges being referred to open court.
In open court, it is important to note that even if a magistrate does not record a conviction, the offence will appear on a person’s criminal record and does not automatically disappear after a set period of time if they are an adult.
There is generally a two-step process in order to participate in the Diversion program:
- The informant or prosecution must file a diversion notice with the court, endorsing their consent for a person to participate in the program; and
- A magistrate must review the matter and deem it appropriate for the matter to proceed by way of Diversion.
If the informant or prosecutor does not agree that the matter should proceed by Diversion, the notice is withdrawn, and the matter will proceed in open court as any other matter would.
However, if a magistrate does not agree that diversion is appropriate, you are able to make submissions as to why it is appropriate. If the magistrate does not agree to place an offender on the diversion program, the offender is not required to plead guilty to the offence despite the fact that they are accepting responsibility as it does not constitute a plea of guilty (s59(3) Criminal Procedure Act 2009 (Vic)).
Diversion For Stalking and Trespass Result:
Our client attended the court in relation to the charges with one of our firm’s solicitors. The solicitor sought to negotiate our client’s charges with the Police Prosecution.
In relation to the stalking charges, our solicitor argued that the alleged threats were not sufficiently directed toward a particular staff member to be proven. Further, it could not be confirmed that our client was the one to make those threats. Upon review of their evidence, the Prosecutor was eventually persuaded to see our point of view and decided to withdraw the charges.
In relation to the trespassing, despite our client having admitted going to the kindergarten, our solicitor argued that this only related to one single occasion, and not nine. There was evidence that someone had stayed there on other occasions, but there was not sufficient evidence to show that it was our client.
In relation to the failing to appear at Court, our solicitor reminded the Prosecutor of our client’s mental health concerns, and that his positive action in addressing it should be taken into account regarding the delay between him being charged and going to Court. The prosecution agreed with this.
As a result of our strenuous negotiations and detailed analysis of the police evidence, our client was able to negotiate the charges down to two minor charges.
Following those negotiations, the entire landscape of our client’s situation had changed. The prospect of a Diversion was raised with the Prosecution and they agreed. The Diversion Notice was provided to the Court.
Our client’s case was considered by a Magistrate and Diversion was eventually granted. Our client was entered into a diversion plan which was to expire in 12 months. He was required to complete a number of conditions and, if successful, the charge would be discharged at the end of the period.
This was a fantastic result for our client as his situation had changed dramatically following our professional and strong negotiations with Police Prosecution. Our client initially thought that his options were limited given his charges and he was grateful that we were able to secure him the opportunity of avoiding a criminal record.
