How to Improve your Chances of Getting a Diversion

The Diversion Program is available in the Magistrates Court of Victoria with the aim of diverting individuals from the criminal justice system.

If you have been charged with a criminal offence, and it is your first criminal offence, you may be eligible to participate in the Diversion program. It is an opportunity to address the underlying reason for criminal offending through counselling or drug rehabilitation and reduce the likelihood of reoffending.

The Criminal Justice Diversion Program is set out in legislation under s 59 of the Criminal Procedure Act 2009 (Vic).

Diversion does not apply to an offence punishable by a minimum or fixed sentence or penalty, including cancellation or suspension of a licence or permit to drive a motor vehicle and disqualification under the Road Safety Act 1986 or the Sentencing Act 1991 from obtaining such a licence or permit or from driving a motor vehicle on a road in Victoria, but not including the incurring of demerit points under the Road Safety Act 1986 or an offence against s 49(1) of the Road Safety Act 1986 not referred to above.

The diversion program is not available for driving offences that attract a mandatory loss of license. For example, excessive speeding, drink or drug driving or refusing to do alcohol or drug testing.

Diversion is available at any time before taking a formal plea in a criminal proceeding for a summary offence or an indictable offence that may be heard and determined summarily.

The Diversion program can ensure that you avoid a criminal conviction or record on the basis that you complete a series of conditions that are of benefit to you, the community and any victims involved in the case.

An experienced criminal lawyer can advise you on your options in respect of the Diversion program and whether the offences you have been charged with can proceed through the Diversion program.

Generally, Diversion will not be available for offences involving family violence, serious assaults, drug trafficking and some certain traffic offences.

It is important to note that if a Diversion is granted, unfortunately the demerit points will still be deducted from your licence and recorded with VicRoads.

The Diversion program is generally available to first time offenders; however, it is possible to receive a Diversion with prior criminal history, and the police and magistrate will take this factor into account in assessing whether Diversion is an appropriate outcome.

The Diversion Program may have conditions included that either the Police or Magistrate have imposed, in our experience these include:

• Donation to the Court Fund or a Charity
• Provide a letter of apology to the victim
• Undertake alcohol or drug counselling or rehabilitation
• Complete the road trauma awareness seminar
• Provide restitution to the victim for any property damage

Process of participating in the Diversion Program

Depending on the offences committed, the police may consent to provide a diversion notice to you following being charged, this can sometimes occur in cases where the offence is of a minor nature, you were cooperative and helpful with police and may consist of a number of factors including age and vulnerability.

If you are charged with an offence and have not received a diversion notice, it is crucial to contact an experienced criminal lawyer to assess the brief and provide advice on whether a diversion could be possible. Our office has had great success negotiating with police and prosecutions to provide a diversion notice’s following detailed written submissions on your personal background and the broader context of the offending.

The first step is to request a Diversion notice from the police informant, this is the police officer that has charged you and has conduct of your case. This is the first hurdle.

If the police informant agrees, a copy of the Diversion Notice will be provided to the Court for listing of the Diversion Hearing. If the police do not agree that a diversion is appropriate, it is possible to have the matter discussed with the police prosecutions at Court at the first mention.

The Informant or the prosecution must consent to the Diversion Notice being granted otherwise Diversion is not possible, you must also consent to the proceedings being adjourned to participate in the Diversion Program.

The chances of being provided with a Diversion Notice are greatly improved by having an experienced lawyer make submissions to the Police.

Once the Diversion Notice is provided to the Court, a Diversion Hearing is listed, generally you will receive a diversion questionnaire to fill out which will arrive by post to your home address. If you don’t receive this, do not worry as you can be provided with another copy at Court on the morning of the Diversion Hearing, it is advised you arrive early to be able to fill this out with your lawyer.

The Diversion Coordinator will then have a private meeting with you and your lawyer if you have one engaged and will explain the process and ensure that you take responsibility for your actions.

It is important to note here that you cannot plead to the charge, you must only acknowledge responsibility. The difference is that the charges will ultimately be withdrawn following the Diversion Plan being completed and therefore you cannot plead guilty.

The Diversion Coordinator will also call any victims involved in the matter and seek their input on whether Diversion is appropriate, the victim has some input however the Diversion Coordinator ultimately places weight upon all aspects.

It is important to bring along any character references from employers, family, friends and sporting or other organisations that you are apart of that can attest to your good character. It is also important to dress respectfully for the Hearing.

Once the Diversion Coordinator meeting is completed, the matter is brought before the Magistrate in the courtroom and looks over all the material provided by both the prosecution and defence. The Magistrate will then either approve the Diversion or require further submissions from the Defence if it is deemed inappropriate.

If the Magistrate declines to order the Diversion, it is transferred back to the summary stream of the Court where you can either plead guilty or not guilty.

If the Diversion is approved, the matter will be adjourned until you have completed the diversion program, which could include paying any donation to the Court fund, providing a letter of apology or paying for any damage caused. You will also be ordered to be of good behaviour for a period not exceeding 12 months. You must not re-offend in any way whilst completing the Diversion Plan.

Once the plan has been successfully completed, the Magistrate will review all the material provided and the charges will be discharged with an outcome recorded on the system as an official warning, this will not show up on any criminal record check and is the main benefit of the Diversion Program.

Our experienced criminal lawyers have acted for clients in assaults, drug possession, careless driving, fraud offences, thefts and have successfully obtained Diversions for our clients.

Contact our office today on 8658 0040 to discuss your matter in a 30-minute obligation free appointment at our Lilydale, Berwick or City office, alternatively we can conduct telephone and videoconferencing appointments to suit you.