Area of Law – Sentencing
An Article about Diversion program
Diversion is a great process for someone who has never been in trouble before. Getting a non-conviction does not mean you have no record. Even a non-conviction will be disclosed by the Police on a criminal history check.
A diversion is dismissed so there is no record at all of your having attended Court that people can access.
It is mainly aimed at first time offenders and relies on the consent of the Informant. Often it is good to provide material (character references, medical reports) to the Informant at the same time as a letter asking them to consider the matter for diversion.
We appear regularly for people seeking diversions and in the diversion hearing themselves.
Below is some information about Diversions from the Magistrates Court:
The Diversion Program is governed by section 128A of the Magistrates’ Court Act 1989. The Program provides mainly first time offenders with the opportunity to avoid a criminal record by undertaking conditions that will benefit the offender, victim and the community as a whole.
The Diversion program is aimed at improving the efficient use of court resources by facilitating the development of an alternative and/or complementary procedure to normal case processes. The Magistrates’ Court intends the program to provide benefits:
- By ensuring that appropriate restitution is made to the victim of the offence;
- By tendering an apology to the victim either by letter or in person;
- Through the prevention of re-offending;
- By avoiding an accessible criminal record;
- By assisting the offender’s rehabilitation;
- By utilising community resources for appropriate counselling and/or treatment;and
- By assisting local community projects with voluntary work and donations
The following criteria must be met before a diversion can be recommended:
- The offence is triable summarily;
- The defendant admits the facts;
- There is sufficient evidence to gain a conviction; and
- A diversion is appropriate in the circumstances.
The over-riding consideration is that diversion be appropriate in the circumstances. The existence of prior convictions does not disqualify an offender from this program but is a fact to be considered in determining appropriateness. Offences punishable by a minimum or fixed sentence or penalty are not appropriate for diversion.Anyone can raise the issue of diversion throughout the court process. However, diversion cannot commence without the consent of the prosecution.
The filing of a Diversion Notice indicates prosecution consent. Once deemed suitable by the prosecuting agency, the Court must also deem the defendant suitable before the matter may proceed by way of diversion. In the event that the Magistrate determines the case is not suitable for diversion, the charges are referred back to the Court.
Where a charge involves a victim, the Court will seek their view of the matter. Their view may contain information as to the amount of compensation sought due to property damage and whether any expression of apology from the person charged would be valued. Views may be expressed by way of letter or in person on the day. The Court also undertakes to notify the victim of any outcome if requested to do so.
Prior to the defendant’s appearance before a Magistrate, the Diversion Co-ordinator will interview him/her to identify the major issues in the case and to formulate a suggested outcome. This is done to assist the presiding Magistrate and to lessen the required amount of Court time.
A diversion hearing is conducted in open court before a Magistrate. At the diversion hearing the Magistrate will assess the suitability of the offender for Diversion and a diversion plan will be developed which may require the offender to:
- Tender an apology to the victim either by letter or in person;
- Compensate the victim;
- Attend for counselling and/or treatment;
- Assist local community projects with voluntary work and donations; and/or
- Attend the Road Trauma Awareness Program and/or a Defensive Driving Course.
The charges will be adjourned while the diversion plan is undertaken.
If the conditions are successfully met, the charges are discharged on the return date and the outcome is recorded in a similar manner as a caution. It therefore does not form part of the person’s formal criminal record, is not available to employers and cannot be alleged as a prior.
Where the tasks are not completed the matter is referred back to the Court as if it was its first listing and all information regarding diversion is removed from the file.