What Is Diversion?

If you have been charged with a criminal offence in Victoria, you may have heard about the possibility of receiving a diversion. 

Diversion allows some eligible offenders to avoid a criminal record by completing a diversion plan instead of proceeding through the normal court sentencing process. While diversion is not available in every case, it can be an excellent outcome for first-time offenders and others charged with less serious offences.

What Is Diversion?

Diversion is a process available in the Magistrates’ Court that allows certain criminal charges to be dealt with without a finding of guilt.

If you successfully complete the diversion program, the charge is dismissed and you avoid a criminal conviction and a finding of guilt.

The purpose of diversion is to provide an opportunity for suitable offenders to accept responsibility for their conduct without the long-term consequences of a criminal record.

Who Is Eligible for Diversion?

Not everyone charged with a criminal offence is eligible for diversion. Whether diversion is available depends on a number of factors, including:

• the nature and seriousness of the offence;

• your criminal history;

• whether you accept responsibility for the offending;

• the views of the police informant; and

• whether the court considers diversion appropriate.

Diversion is most commonly granted to people with little or no prior criminal history who have been charged with relatively low-level offending.

Do the Police Have to Agree?

Yes.

It is a pre-requisite of Diversion that the prosecution consent. Therefore, the Police Informant or Prosecutor must recommend or consent to the matter being considered for diversion.

If police oppose diversion, the court cannot ordinarily grant it.

For this reason, it is often beneficial for a lawyer to communicate with police before the court date and, where appropriate, make submissions explaining why diversion is suitable.

What Does a Diversion Plan Involve?

If diversion is granted, the court will usually require you to complete a diversion plan.

The conditions vary depending on the offence and your personal circumstances but may include:

• writing a letter of apology;

• making a charitable donation;

• completing counselling or treatment;

• undertaking educational programs;

• performing voluntary community work; or

• making restitution or compensation where appropriate.

Once all of the conditions have been completed, the matter returns to court and the charge is dismissed.

Does Diversion Mean I Have a Criminal Record?

One of the main benefits of diversion is that there is no finding of guilt and no criminal conviction if the diversion is successfully completed.

This means you avoid many of the long-term consequences that can arise from a criminal conviction, including difficulties with employment, professional registration and travel.

Although records of the diversion process are maintained by the court and Victoria Police, a successfully completed diversion is generally far more favourable than being convicted of a criminal offence.

What Happens If I Don’t Complete the Diversion Plan?

If you fail to comply with the conditions of your diversion plan, the court may cancel the diversion.

The criminal charge will then proceed through the normal court process, and you may ultimately be required to plead guilty or contest the allegation.

It is therefore important to complete every condition of the diversion plan within the required timeframe.

Should I Get Legal Advice About Diversion?

Yes.

Although diversion is an excellent outcome, it is not automatically granted simply because you ask for it.

A lawyer can advise whether you are likely to be eligible, communicate with police about supporting diversion, prepare submissions explaining why it is appropriate and ensure that your application is presented as strongly as possible.

Obtaining legal advice early can significantly improve your prospects of receiving diversion where it is available.

Speak to Wilkinson Lawyers

If you have been charged with a criminal offence and would like to know whether you are eligible for diversion, Wilkinson Lawyers can help. We regularly represent clients in Magistrates’ Courts throughout Victoria and prepare diversion applications aimed at avoiding criminal convictions wherever possible. We can advise whether diversion is available in your case and guide you through the process from start to finish.

Contact Jess Wilkinson on 0468 364 121 or jess@wilkinsonlawyers.com.au to discuss your matter and obtain advice about the best way forward.