Diversion Programme in Magistrates Courts
If a person is charged with a criminal offence, they can ask the Magistrates court to consider them for a Diversion programme. As the term suggest, a Diversion means that you will be diverted from the criminal justice system and will be afforded an opportunity to participate in a programme in order to keep your criminal record clean. As opposed to other sentencing options a person need not to plead guilty to a criminal charge but accept responsibility for their actions to be eligible for a diversion. It is a challenging task for lawyer to get their client a Diversion. However, if a diversion is granted a person can maintain their clean record and the criminal offence you were charged with will not be shown on your police check or record
THE LAW
Unlike every other sentencing option, the Diversion process is regulated by section 59 of Criminal Procedure Act 2009 (Vic). The law states that the court has a power to adjourn a court proceeding for the accused to undertake a Diversion programme. However, there are number of factors which must be satisfied before the court can adjourn the matter for the accused to undertake the programme. A court cannot grant an adjournment for Diversion in the following circumstances:
If the accused is charged with an offence punishable with mandatory minimum fixed penalty which included suspension and disqualification of driver licences.
To Drink Driving and Drug Driving offences.
The court must be satisfied of the following matters before it grants a Diversion:
The offence is suitable for diversion, which generally means that court has a power to inform itself with whatever matter it finds suitable to take into consideration.
The accused acknowledge responsibility to the offence.
The Consent of Police Prosecutor and the accused.
It generally requires negotiations with police prosecutors and then presenting a good case to the magistrate before an adjournment is granted for the accused to participate in the diversion programme. It is recommended that if a person is planning to ask for a diversion, they should do their homework which involves talking to a criminal lawyer
SUPPORTING FACTORS
Generally, the courts will not grant a diversion if you have been to court previously and have been found guilty of an offence. The courts are also reluctant to grant a diversion if a diversion has been granted to the accused previously. There are number things which can be done in order to strengthen your case for a diversion programme such as:
No Previous Criminal History.
Genuine Acceptance of responsibility and remorse ideally demonstrated by a written statement.
Victim’s attitude and support.
Willing to address personal issues if any such as alcohol or anger issues which may contributed to the offence charged.
Genuine job prospects for future.
Significant Impact of a criminal record on any employment or business ventures.
If an accused is going to accept responsibility and demonstrate genuine remorse or wish to formally apologise to parties involved it is ideal that it should be done prior to attending court. Experience shows that court are more accepting of remorse and apology letters drafted prior the orders of court. Some people go to the extent of booking themselves in behavioural change courses prior to attending court which can assist a person significantly in order to get the diversion programme authorised.
COMMON CHALLENGES
Experience shows that the biggest obstacle in getting a diversion being granted is to get to the police prosecutors to consent to the adjournment for diversion. Police prosecutors are generally reluctant to consent without canvassing the attitude of the victim and police informants. Police can ask adjournments to contact the victim and police informants which can delay the finalisation of a matter resulting in extra legal costs and inconvenience. Police will generally refuse a Diversion in following matters based on their internal policy:
Anything to do with Family Offence
Traffic Charges (including minor infringement matters)
Drug Trafficking (Regardless how minor is it)
Theft from Employer
It is recommended to speak to a criminal lawyer before you attend court and enter a plea guilty. Experience shows that there is a huge number of people who plead guilty to criminal charges and end up having a criminal record where it could have been easily avoided by a diversion
