A diversion program is a method of dealing with offending while keeping you out of the court system to avoid a criminal record. A Magistrate decides if a person is eligible for a diversion. A diversion comes with a set of conditions that must be adhered to.
These could be:
- Apologising to any victims of your actions
- Attending counselling for relevant issues (drug or alcohol, anger management)
- Educational courses (driving, drug awareness)
- Donations to causes that relate to your offence
- Community work (community corrections order)
If the conditions are adhered to, the charges are dropped and there is no guilty finding – no criminal record. The programs usually run for a year. Demerit points can still be applied for any driving offences, since VicRoads applies these, not the Court.
Eligibility
Diversion programs can apply to those offences heard in a Magistrate’s Court, the offence has no fixed or minimum sentence or penalty, and/or you agree that you were responsible for the offending.
The police officer who charged you can make a diversion recommendation, then the judge will determine if the diversion is to be granted. The seriousness of the offence is taken into account, as is whether this is the first offence or not.
Driving offences that cannot have diversions applied include:
- Excessive speed
- Drink or drug driving
- Refusal of drink or drug testing
Asking for a diversion
Having legal representation can help your case by presenting only the best and most relevant information to the court. You must accept responsibility for the offence, which means you are admitting guilt. This can be tricky, however with the right legal advice, you can see what your best options are – lawyers see these cases all the time, so know what the likelihood of success is.
The positive outcomes of a successful application for a diversion means no criminal record, which cannot be overstated as a huge benefit. Your criminal record in Victoria sticks around for life, despite proposals being made to have criminal records ‘expire’, as they do in the rest of Australia.
To apply for a diversion
Go to the counter at the courthouse and tell them that you will be requesting the Magistrate to adjourn your case so that you can ask the police officer (informant) for a diversion recommendation. This will result in the staff sending your file the courtroom, which lets the Magistrate know that your case can be heard.
Wait for your name to be called, and follow good courtroom etiquette. Once you are asked to, you can speak – say you would like to ask for a diversion. This will likely result in the Magistrate adjourning the case (rescheduling another court appointment in the future) so you have time to go and do this.
How to ask the police officer (informant) for a diversion recommendation
The informant needs to agree to this, and you or your lawyer can write a letter requesting this recommendation. It can help t have your lawyer help write this letter so it offers you the best chance of being offered a recommendation.
If you already have a diversion notice issued, you don’t need to go through this process – you go directly into a diversion hearing. This means you’ll attend the diversion counter and ask for a hearing.
The letter should say:
- Who you are
- Your offence
- Why you are writing
- If you have apologised to any victims
- About yourself – wok, school, where you live
- Payments, or intention of payments, for loss or damage to victims
- Your behaviour is out of character and was an error in judgement, and why
- Why you are unlikely to offend again
- That you understand you may need counselling or educational courses
- That having a criminal record would cause many problems for your future
When the police officer agrees, they file a diversion notice with the court, and your hearing is booked. Then the judge decides the outcome. Keep all paperwork with you, including proof of any of the above 10 statements and answers.
Having a lawyer here means you don’t do the talking, but your lawyer talks on your behalf. Court can be scary, so having legal backup can allay fears and allow your lawyer to do the hard legwork of convincing a judge that you deserve a diversion program. Victims may be consulted. Contact lawyer Vanessa Ash for more information.
What happens if the diversion is declined
Your case then gets deposited back into the court system and you will need to attend another hearing where you’ll need to plead guilty or not guilty, keeping in mind that you’ve already announced your guilt.
Call Vanessa Ash and Associates today to discuss your application for diversion. First phone consult is free.