When accused individuals qualify for a diversion, a criminal record of the offence they committed will not be made against them. This is particularly helpful especially as Victoria does not have a spent conviction schemes. Findings of guilt without conviction are also released by the police on a person’s criminal records in the same way findings of guilt with convictions are – which is likely to cause problems for the offender (eg. employment discrimination, travel, etc.). Thus a diversion program becomes highly crucial.
Section 59 of the Criminal Procedure Act talks about diversion and its goals. The aim is primarily to ensure restitution to the victim, to prevent further re-offending, to avoid getting any form of criminal records, and to provide local community services via donations and voluntary activities.
Qualifying for a Diversion
There are three conditions necessary to qualify for a diversion. First, the recommendation for a diversion must come from the police and be duly authorized by their superior. This is by far the most challenging phase of getting a diversion since the police can easily turn down your request for a variety of reasons. The best way to get a recommendation from them is to provide them with relevant documents that justify why a diversion is reasonable. Character references, letters of apology to the Police for wasting their time, and other similar materials are especially helpful to convince them to recommend. Many times, a charge document comes with an attached diversion notice that will make the procedure less challenging. Still, even with a diversion notice the Magistrate has to evaluate the recommendation from the police and make their own decision.
The second condition requires that the criminal charge in question be a summary offence – something heard only in the Magistrates’ Court. Once a diversion is refused by the Magistrates’ Court, it would be useless to appeal to the County Court since the latter does not have the legislative power to impose a diversion. Driving offences that warrant penalties or minimum or fixed disqualifications also cannot be diverted, including offences such as drink driving, excessive speeding, or dangerous driving.
Lastly, offenders must acknowledge that the details of the summary offence are true and hence they must plead guilty to the charge.
Diversion Hearing Process
At the start, conditions are laid out on the diversion notice provided by the police upon accepting your request for recommendation. These may include details like undergoing a specific course related to the offence (eg. traffic-related courses for driving offences), donating to certain charity institutions, and/or writing a letter to the informant apologizing for the inconvenience caused by the offence.
Next, the court schedules a Diversion Hearing. A form will be given to you that you fill out with your personal history and other relevant details. It is crucial that you carefully fill out the form as it will confirm your understanding of the process. A diversion coordinator will later interview you as part of assessing your eligibility for diversion.
Finally, the decision whether you qualify or not will be made by a Magistrate of the Judicial Registrar.
Increasing Your Chances for a Diversion
- Provide a character reference that specifically touches on issues related to the offence.
- Have the initiative to write a formal letter of apology even before the court orders you to do so. Of course, show the letter to your lawyers first. They should send the letter to the informant and correspond with the informant.
- Enroll on a program specific to the offence. This shows that you are willing to learn more about the law that was broken and will help prevent re-offending.
- Engage in non-profit community services. Demonstrate how useful a citizen you are despite the offence.