A diversion is a court outcome that enables a person to avoid a criminal history.
The pathway to a successful Diversion Application begins with a recommendation by police in writing which is filed in the Magistrates Court (known as a Diversion Notice).
A Magistrate has the discretion to either grant or refuse a diversion application. Sometimes the police will include a Diversion notice in the prosecution paperwork, often an application will need to be made to the police to persuade them that diversion is appropriate. Section 59 of the Criminal Procedure Act 2009 (Vic) sets out the criteria that must be met for a diversion.
A Diversion will usually only be recommended to a person who has no criminal history, or a limited criminal history that is quite old (10 years or more). A person is also required to plead guilty to the alleged offence as part of the diversion process, although an unsuccessful diversion application will not necessarily bind a person to a plea of guilty (section 59(3) of the Criminal Procedure Act 2009 (Vic)).
Where an application is successful
If a Diversion Application is successful, the Court will require a person to complete several conditions as part of a Diversion plan. These conditions may include: writing a letter of apology, making compensation to the victim, writing a letter of gratitude to the police informant, making a payment to the Court fund, or a condition designed to foster rehabilitation such as a requirement to continue counselling and treatment (mental health).
Where an application is unsuccessful
The matter can either proceed as a plea of guilty, often a Magistrate may give a sentence indication, or the matter referred back to the mention list where it will heard and determined in the usual way depending upon whether it is to proceed as a plea of guilty or not guilty. Refer to information on criminal proceedings on this website. It is also possible to appeal a decision to refuse to grant diversion, however the mechanics of commencing an appeal against a Magistrates’ decision is somewhat more involved and legal advice should be obtained.
Some ideas on preparing a diversion application
The key to preparing a diversion application, like any other type of court case is preparation. It is important to place before the Court material that will persuade the Court that diversion should be granted. This material could include character references, or favourable reports/letters that establish a successful course of rehabilitation.
Call our office, make an appointment, and get advice to give yourself every chance of success
Remember the Magistrate makes the final decision as to whether to refuse or grant your application. Accordingly, it is better to ensure resources are expended to give your diversion application the best chance of success rather than spending more time and money on an appeal. If you have been charged with an offence and require assistance with a diversion application, do not hesitate to call our office for an obligation free consultation.
To learn more about the Diversion process, particularly in relation to Family Violence Offences read our blog on Diversion and Family Violence Offences. We have also published a blog on how to prepare a character reference should you require one for a Diversion application.
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For new queries, you can access advice and court representation through phone or video conference (Zoom or Microsoft Teams). We are committed to providing support to our clients through this period of uncertainty. Refer to our services page for a listing of the professional legal services we offer.