In Victoria, the Criminal Justice Diversion program has been operating for many years, and remains the main mechanism by which an eligible offender, can advance their rehabilitation through the avoidance of a criminal record.
An application for diversion proceeds to determination at Court through the consent of the police (usually the police officer responsible for laying the charge; or their station Sergeant).
A recommendation by the police does not guarantee diversion, and in practice a Magistrate may need to be persuaded through oral submissions, that diversion is appropriate in a case. On some occasion’s applications are refused.
The ultimate responsibility for diversion therefore rests upon the Judge or Magistrate and not the police officer who recommended diversion in the first place.
Although the criminal justice diversion program has been a feature of our criminal justice system for many years in this State, and the benefits to the community are clear, the system is far from perfect and calls for reform have been made.
One key area for reform concerns the discretion vested in the police to refuse diversion before a judicial officer can consider the merits of the case.
The interplay between family violence related cases, and police consent for diversion has been a particularly challenging area for criminal lawyers.
As a general yardstick the more serious the objective criminality of the offence is the less likely diversion will be approved. An assault involving an injury, or serious injury will in almost all cases be too serious for diversion, having regard to well established policy objectives of deterrence, and just punishment.
But it has been the recent experience of many criminal law practitioners that police are required to refuse diversion applications based upon the offence falling within a category, rather than the criminality of the offending concerned. That their guidelines stipulate that family violence related offending regardless of offence type, or the criminality involved is not to receive the consent of police. This is particularly problematic for practitioners where their client is charged with Breach of Intervention Order.
A breach of an IVO might involve very serious criminality (assaults, persistent threatening behavior, stalking), or may be technical or involve a relatively low level of criminality. In all cases, a Court Order has been breached which is no trivial, matter, but the criminality occasioning the breach can vary greatly.
Clearly, the prosecution has an important role to play in supporting or refusing any application for diversion, but the critical issue is the point at which that involvement occurs. Currently, Section 59 of the Criminal Procedure Act, stipulates their involvement as essentially the gatekeepers of the recommendation process.
For most cases (where the existing legislative criteria has been met), there perhaps should be a presumption in favour of diversion, unless the presiding Magistrate finds that the granting of a diversion would not be in the interests of justice. Both prosecution and defence could be heard on the application.
Clearly, the current approach by Victoria Police in its assessment of family violence cases is inflexible and is being applied inconsistently depending upon individual officer/prosecutor, and the station/region where they are based.
As observed by various agencies (Liberty Victoria, Victoria Aboriginal Legal Services) advocating for change in this area, the role of the police in the diversion process is an area ripe for reform.
The decision to grant or refuse consent for a diversion, particularly for relatively minor or technical breach of Intervention Order offences can be life-altering for an accused. It follows that the assessment by a police officer/prosecutor as to whether to exercise their discretion to consent or refuse diversion must be based upon the objective seriousness of the offence, and the circumstances of the offender, the views and input of the victim, the degree of rehabilitative steps undertaken by the accused, and not simply by the category of offence.
If you have been charged with a family violence offence, and have no criminal history, it is always important to consider the option of a diversion, notwithstanding the difficulties attached to family violence related allegations. If you are required to attend Court, and you want to explore your options don't hesitate to call our office for an obligation free assessment.