What is a Diversion Order?
If you have been charged with a criminal offence, the only way to be sure your record remains completely clean is to obtain a Diversion. If you are found ‘not guilty’, and even if a Judge or Magistrate orders no conviction, Victoria police are still able to mention that non-conviction order on your record.
Created under section 59 of the Criminal Procedures Act 2009, the Diversion Program provides offenders with the opportunity to avoid any criminal record if the offender agrees to complete conditions intended to benefit the victim, themselves, and the community.
Am I eligible for a Diversion Order?
The Diversion Program is designed to prevent first time offenders, especially young people, who have made grievous mistakes from entering the criminal justice system or having their future prospects impacted by a criminal record.
There are three eligibility conditions that must be met to obtain a Diversion:
- You must accept responsibility for the offence
The Diversion Program is only available to offenders who know they have done something wrong and accept responsibility for it. It’s important to note that this is not the same as pleading guilty, it simply means you recognise the wrongness of your actions leading to being charged.
- The Police must recommend diversion to the Magistrate or Judge
Getting a diversion involves convincing the Police that you are an appropriate candidate for the Diversion Program. Ultimately, it’s up to them to decide whether or not to present this option to the Magistrate or Judge for their consideration. Prior to facing court, we engage with Police and argue on your behalf, presenting relevant documents such as character references and letters of apology. If a victim is involved, it is likely they will be consulted as well before a recommendation is given.
- It must be an offence that can be heard in the Magistrates’ Court
Diversions can only be obtained where the case can be tried summarily, meaning an offence that can be heard by a magistrate sitting alone, rather than one needing a judge and jury (that is an indictable offence).
If Police have agreed to recommending a diversion for your offence, they will recommend it to the Magistrate who will make a decision based on any supporting materials such as:
- Receipts showing you have paid for any damage you caused,
- Reports from doctors or counsellors,
- Evidence of good standing in the community such as participation in associations or good workplace or school performance,
- Character references from people who know you well.
What is a Diversion Hearing?
If police approve recommending a Diversion Order, they will provide a Diversion Notice and the court will adjourn your case for a Diversion Hearing.
On the day of your Diversion Hearing you will be required to complete a form and conduct an interview by the Diversion Coordinator, who will confirm you understand the Diversion process and evaluate whether you are eligible. How you act during this interview will have a significant impact on whether they approve your eligibility.
Your lawyer will thoroughly prepare you for this stage to ensure you provide suitable responses and do not jeopardise your chances of getting a Diversion.
Finally, during the Diversion Hearing, the Magistrate or Judicial Registrar will decide whether to grant a Diversion.
What are the conditions of a Diversion Order?
If you are successful, the Magistrate or Judicial Registrar will set conditions for your Diversion in the form of a Diversion Plan and set a date for your Diversion Plan to be reviewed. Your Diversion Plan will include a list of conditions which must be met.
These may include participating in programs specifically designed to address and make amends for your offending behaviours. This may include:
- Apologising to the victim,
- Compensating the victim,
- Donating money to a charity or community fund,
- Attending Drug, Alcohol, or Road Trauma Awareness Seminars,
- Seeing a counsellor or getting treatment for behavioural problems,
- Any other condition the Magistrate or Judicial Registrar deems appropriate.
Along with any condition set out in your Diversion Plan, you must not be charged for an offence during the period of the Diversion Order. If you are charged with an offence, or fail to comply with the conditions of the Diversion Plan, you will be required to return to court and your chance at keeping your record clean will be lost.
What if I am unsuccessful?
Garde Wilson Lawyers takes every opportunity to prevent being charged with an offence having a lasting or damaging impact on your life. If we believe you are eligible for a Diversion Order, we do everything possible to maximise your chances of being successful.
There are some circumstances where Diversion Orders will not be available. These include:
- If you already have a criminal record,
- You have been charged with excessive speeding,
- You have been charged with drink or drug driving,
- You have refused to take an alcohol or drug test,
- Your offence is deemed too serious.
Even if the Police and the Diversion Co-ordinator approve your eligibility for the Diversion Program, a Magistrate or Judicial Registrar may refuse to grant you a Diversion Order. You may appeal to refuse your Diversion to the County Court to be decided by a Judge. Your lawyer can advise you on the likelihood of a successful appeal and how to proceed.
What is the best way to get a Diversion?
Attempting to secure a Diversion Order without the help of a lawyer is very hard. It requires conducting negotiations with police and prosecution, and presenting a compelling case to the court for why you should be placed in the Diversion Program.
Garde Wilson Lawyers has extensive experience assisting clients obtain a Diversion and keep a clean record.
Failing to get a Diversion Order means that even if you are found not guilty, your record may be tarnished. If you are found guilty it can result in a conviction being recorded, impacting your ability to travel and potentially limiting your employability.
Do you need to keep your record clean?
Garde Wilson Lawyers can protect your future, freedom and financial security. Contact us to book a free case assessment with our criminal law experts today.