Area of Law – Sentencing
An Article about Diversion
A diversion application in the Magistrates’ Court is a means of avoiding a police record. If a matter is recommended for diversion, the application for diversion has to be the individual’s best possible application, as subject to one exception below, no rights of appeal against a decision to refuse diversion are available. Thus it is usually a wise decision to consult a lawyer about how to go about preparing a case for diversion. The steps an accused must take to obtain a diversion are set out below.
The Court Diversion scheme is set out under section 59 of the Criminal Procedure Act 2009 (see Section 59 of that Act). It was introduced into the sentencing framework of the Magistrates Court several years ago.
The purpose behind the scheme is to rehabilitate a first time offender by diverting them from the often harsh consequences of having a court outcome entered into the database kept by of the Victoria Police. In other words, the creation of a police record. Depending upon a partiulcar field of employment a background check may be required as a condition of employment. A background check will reveal all court outcomes against a particular person, whether or not a conviction was in fact recorded.
A court diversion is not available for offences that have a fixed penalty, say for example drink driving offences under s. 49(1) of the Road Safety Act 1958 (Vic).
It is an essential condition of a diversion that the accused accept responsiblity for the offence.
The process for obtaining a court diversion is as follows:
- The informant may recommend diversion of their own volition, or subject to an application for diversion by the defendant’s lawyer, a preliminary recommendation for diversion is made by the informant (the police officer who is responsible for filing the offence in court, and whose name generally appears on the charge sheets).
- The informant (depending upon their rank) may require the authorisation from their supervising officer. Typically an officer with the rank of sergeant.
- The informant’s supervising officer will either recommend or reject the application for diversion. If the application is rejected it can go no further, and the matter will have to be determined by way of a plea of guilty/not guilty in open court. If the diversion is recommended, a diversion application is lodged by the police, and this document will usually outline what conditions are recommended as part of the Diversion plan.
- Once the diversion application has been lodged with the appropriate Magistrates’ Court, court, it will be referred to a Magistrate for determination. Prior to this stage the defendant is required to complete a diversion questionnaire setting out their personal circumstances, reasons for offence, and any other relevant information they wish to place before the court (for example medical reports, character references).
- The application for diversion may be heard by a Magistrate in ‘chambers’ (their office), or in the courtroom itself. Depending upon the circumstances of the Case, the Magistrate may or may not require further submissions as to why a diversion ougt to be granted. Magistrates frequently do want to know why an accused should be given an opportunity to receive a diversion. It is important to note that unless the diversion application is heard by a Judicial Registrar, their is no right to appeal/review an unfavourable decision. It is entirely at the Magistrates’/JR’s discretion to approve diversion, and an accused who is fortunate enough to have a diversion application before a Magistrate for determination, needs to make their application the best possible application. To this end, it is advisable to have a lawyer prepare the diversion, and to attend Court to make submissions in the event that a Magistrate is undecided as to whether or not to approve diversion.
- If the Magistrate approves diversion, the Magistrate will nominate certain conditions as part of the diversion plan, these conditions will usually reflect what the Informant suggested in their diversion documents. Typically, the conditions may require the defendant to write a letter of apology to the victim; write a letter of appreciation to the informant; pay a sum of money into the court fund or charitable organisation; attend specific courses for counselling (for eg, drug/alcohol, anger management). If the Magistrate refuses diversion, then the defendant must elect whether to plead guilty or not guilty. A refusal to approve diversion does not prevent a an accused from pleading not guilty and contesting the charge (see section 59(2), by reason that the admission of responsiblity for the diversion application is inadmissible subsequent proceedings. And as referred to above, it is possible under the law as it currently stands, to review a Judicial Registrar’s decision to refuse diversion.
- Where the Magistrate approves diversion, the Court will adjourn the case for a period (not exceeding 12 months) to allow the accused to complete conditions set out in the Diversion plan. If those conditions are completed within the specified period, then no plea to the charge is to be taken and the Magistrates Court must discharge the accused wtihout any finding of guilty, and the fact of participation in the diversion program is not to be treated as a finding of guilty except for the purposes of confiscation of items (i.e. taitned property, Weapons including firearms).
Please refer to the Magistrates’s Court website (www.magistratescourt.vic.gov.au) for futher information concerning diversion.