Am I Eligible for Diversion?
If you have been charged with a criminal offence, you may be wondering whether you are eligible for diversion. Diversion is one of the best outcomes available in the Magistrates’ Court because, if successfully completed, your charge is dismissed without a finding of guilt or a criminal conviction.
However, not everyone is eligible for diversion. Whether it is available depends on the nature of the offence, your personal circumstances and whether the court considers diversion appropriate.
What Is Diversion?
Diversion is a process that allows certain criminal charges to be resolved without the court finding you guilty of the offence.
Instead of being sentenced, you complete a diversion plan containing conditions designed to address the offending. Once those conditions have been successfully completed, the court dismisses the charge.
Diversion is intended to give suitable offenders an opportunity to avoid the long-term consequences of a criminal record while still accepting responsibility for their actions.
Who Can Get Diversion?
There is no automatic right to diversion.
Each application is considered on its own merits, but the court will generally consider factors such as:
the seriousness of the offence;
whether you accept responsibility for the offending;
your criminal history;
whether you have previously received diversion;
the views of the police informant; and
your personal circumstances and prospects of rehabilitation.
People with little or no criminal history who have been charged with relatively low-level offending are often the strongest candidates for diversion.
What Types of Offences Can Be Diverted?
Diversion is commonly available for less serious criminal offences.
Examples may include:
shop theft;
criminal damage;
unlawful assault involving relatively minor injuries;
possess drug of dependence;
traffic offences in appropriate cases; and
other summary offences.
More serious offending, particularly offences involving significant violence, family violence, sexual offending or matters that must be heard in higher courts, are generally not suitable for diversion and will not be reccommended for Diversion.
Every case depends on its own facts.
Do the Police Have to Agree?
Yes.
The police informant or prosecutor need to support the matter proceeding by way of diversion and they must make a recommendation before the court will consider Diversion as an option.
When deciding whether to support diversion, police may consider:
the seriousness of the offending;
your criminal history;
the views of any victim; and
whether diversion is consistent with the public interest.
A lawyer can often communicate with police before the court date and provide material explaining why diversion is appropriate.
What If I Have a Criminal Record?
Having a criminal record does not automatically prevent you from obtaining diversion.
However, prior convictions or previous diversion outcomes may reduce the likelihood that it will be granted.
The court will consider the nature of your previous offending, how long ago it occurred and whether the current offence appears to be an isolated incident or part of an ongoing pattern of offending.
What Happens If I Am Granted Diversion?
If the court grants diversion, you will usually be required to complete a diversion plan.
The conditions depend on the circumstances of your case and may include counselling, a charitable donation, an apology to the victim, voluntary work or other rehabilitative conditions.
Once you successfully complete the diversion plan, the court dismisses the charge without recording a finding of guilt or a conviction.
Should I Get Legal Advice Before Applying for Diversion?
Yes.
Not every person who is eligible for diversion will automatically receive it.
A lawyer can assess whether diversion is likely to be available, negotiate with police where appropriate, prepare supporting material and present submissions explaining why your case is suitable for diversion.
Obtaining legal advice before your first court date can significantly improve your prospects of a successful application.
Speak to Wilkinson Lawyers
If you have been charged with a criminal offence and want to know whether you are eligible for diversion, Wilkinson Lawyers can help. We regularly represent clients seeking diversion in Magistrates’ Courts throughout Victoria. We can advise whether diversion is available in your case, prepare your application and present the strongest possible argument to help you avoid a criminal conviction.
Contact Jess Wilkinson on 0468 364 121 or jess@wilkinsonlawyers.com.au to discuss your matter and obtain advice about the best way forward.
