Written by Shaun Pascoe. Solicitor, Doogue O’Brien George Criminal Lawyers, Heidelberg
Currently, Victoria does not have a regime for spent convictions. If a person attends their Court to answer a criminal offence and pleads guilty or is found guilty, that person will have a record of their court appearance which can be disclosed to third parties such as prospective employers. You can read more about Victoria’s policy on spent convictions in our blog post from February 7th 2012, For the record – Victoria Police’s unjust Information Release Policy.
Section 59 of the Criminal Procedure Act 2009 provides the legislative basis for the Diversion program.
The program aims to:
- Ensure that restitution is made to the victim of the offence if appropriate
- Ensure the victim receives an apology if appropriate
- Reduce the likelihood of re-offending
- Assist offenders to avoid an accessible criminal record
- Increase the use of community resources to provide counselling and treatment services
- Assist local community projects with voluntary works and donations
Who is eligible for the Diversion program?
There are the following eligibility conditions:
- The Informant (police officer responsible for filing the charge at Court)
must recommend diversion, and this recommendation must be authorised by their station Sergeant.
- The offence must be capable of being heard and finalised in the Magistrates’ Court
- The offence must not be subject to a minimum of fixed sentence or penalty
(for example drink driving offences, drive in a manner dangerous, or excessive speeding are excluded).
- The accused must acknowledge and plead guilty to the offence.
Diversion must be recommended by the police Informant
Sometimes paperwork from the police will contain a diversion notice, which will indicate that the police Informant has considered and recommended Diversion. However, the police will not automatically recommend Diversion, and often it is necessary to be proactive and suggest Diversion to the Informant if it is clear the accused may be eligible.
If Diversion is approved then the matter will be listed for a hearing
The Diversion Notice will contain a number of proposed conditions. Some examples of these conditions are; to write a letter of apology/gratitude to the victim of the offence, make a donation to a specified charity or to the Court fund.
The Court will fix a date for a diversion hearing. This date will usually, but not always, be the first mention date (the date specified on the charge sheet to attend Court). On the day of the hearing the accused will complete a diversion questionnaire, which is a document setting out matters personal, and confirming the applicant is aware of the eligibility requirements of a Diversion.
An interview between the Diversion Coordinator at the relevant Court and the applicant then occurs. The role of the Diversion Coordinator is to explain the purpose of a diversion, and to discuss the conditions proposed on the diversion plan.
After the interview a Magistrate or Judicial Registrar will determine the application. A Magistrate may decide to grant or refuse the application in chambers (that is in their office, out of Court), or will hear submissions and make their decision in open Court.
How to make the most effective application for Diversion
Other than an acquittal, or an application by the police to withdraw charges (whereby, for example, there is insufficient evidence) a Criminal Justice Diversion is the only opportunity to avoid a criminal record. An accused person who has the benefit of having Diversion recommended should give serious consideration to being represented by an appropriately experienced criminal defence lawyer.
It is very important to obtain testimonials in support of a diversion application. Work testimonials are excellent as they can demonstrate an accused person’s previous good character. The testimonial which will serve as a character reference for court must be addressed to the Sentencing Magistrate, and must be clear from the letter that the author is aware of the criminal charges before the Court.
Any previous certificate evidencing community involvement (charity work for example) is also very useful.
The Decision to grant/refuse Diversion
If Diversion is accepted, the Magistrate/Judicial Registrar will explain the conditions of the Diversion and a time frame for completion of those conditions. A Diversion Plan is then provided to the applicant and the case adjourned to allow for completion of the Plan. If the conditions have been fulfilled by the accused by the return date, then the offences are discharged with no finding of guilt and the outcome is not recorded on a criminal record.
A refusal to grant diversion cannot be reviewed or appealed, except in certain limited situations. This reinforces how important early thorough preparation is in these cases. The persuasiveness of an argument in support of diversion is usually enhanced by the accused person being represented by a criminal lawyer.
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