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How to apply for diversion

Information about how to apply for diversion.

Accept responsibility

Anyone who uses the diversion program has to accept responsibility for the offence. This is not the same as pleading guilty. But it does mean that the person has to go before a magistrate admitting that they did something wrong. This is a formal step that must take place in open court.

See Rumbiak v Hough [2004] VSC 95 (30 March 2004)(opens in a new window).

Diversion conditions

If diversion is granted the magistrate will impose conditions. If the person complies with all of the conditions by the due date, there will be no finding of guilt. That means no criminal record.

If the informant has already served a diversion notice

Sometimes the police informant will serve a diversion notice at the same time that they serve the police brief. This means that the police have already recommended diversion. If the informant is at court, they will have a copy of the diversion notice and the matter can go straight to a diversion hearing. If this is the case the person can go directly to the diversion counter and ask for their matter to go ahead for a diversion hearing.

If no diversion notice has been served

If no diversion notice was served with the police brief the person will need to:

  • write a letter to the informant as soon as possible seeking diversion, or
  • go to court to start the diversion process.

Going to the court counter to ask for diversion

When the person arrives at court they should go to the court counter and tell the staff that they are going to ask the magistrate to adjourn the case so that they can ask the informant for a diversion recommendation. The first adjournment may happen administratively at the court counter. For subsequent adjournments the counter staff will send the person's file into the courtroom. This lets the magistrate know that the case can be heard.

The person should stay close to the courtroom or go in there and wait for their name to be called. This may take a while. The person should bow to the magistrate as they enter the courtroom.

In court seeking an adjournment

When the person's name is called they must go to the bar table. Stand at the opposite end to the police prosecutor. They must stand when speaking to the magistrate.

The charge will be read out and the person asks to have their case adjourned so that they can ask for diversion.

The magistrate may adjourn the case to allow the person to ask the informant for a diversion recommendation.

This is not the same thing as being granted diversion. There are still a few steps to go.

Write to the informant

This is very important. The informant must agree to recommend the person for diversion. If the informant has not already made a diversion recommendation the person or their lawyer can write a letter asking for this.

The informant's details will be written on the charge sheet.

What to put in my letter to the informant

It is worthwhile putting significant effort into this diversion request. It may be helpful to include:

  • an introduction saying who you are and what your offence was
  • the reason for writing: that the person is writing to ask the informant for a diversion recommendation
  • any apology that has been made to the victim (if there was one)
  • a bit more personal information. For example, their work, where they live
  • any payment already made for loss or damage suffered by the victim (or indicate a willingness to do this)
  • that this behaviour is out of character. For example, if the person was affected by drugs, alcohol or both at the time of the offence
  • any information about prior convictions and that the person is unlikely to break the law again
  • that the person understands that there may be conditions attached (like drug education or anger management counselling) and the person is confident that they can stick to these conditions, and
  • that a criminal record would have a very bad effect on their future. For example, that a criminal record would make it harder to get jobs in future.

If the client has medical records or character references that would add weight to their argument, these should be included.

VLA no longer assists with this process but a well-argued application can make a significant difference to their chance of success. The client should be encouraged to accept responsibility for the offence and to apologise for their conduct. They should also provide all relevant details about their personal circumstances (both at the time of the offence and now), and of the circumstances of the offence. Information should include any mitigating factors and any attempts to address the underlying issues that led to the person being charged and any personal circumstances that mean that the penalty should be less harsh.

The kind of information that is relevant is the same as that which would be presented to the court on a plea of guilty.

Note: Clients need to be advised that any communication with police may be used in evidence if the matter is found to be unsuitable for diversion and proceeds in the mainstream court in future. The client should get legal advice on the charges before they apply for diversion.

If the informant agrees

The informant will file a diversion notice with the court. This notice lets the court know that the police have recommended diversion and that the court can book an appointment for a diversion hearing. Getting diversion is not automatic, the court also has to agree to diversion. The person will have to attend a diversion hearing. At this hearing, the magistrate decides whether they agree with the police and will agree to grant diversion.

Before the person attends this hearing they should get any paperwork as evidence of what has been said in the letter to the informant. Bring this to court.

If the informant agrees but their sergeant does not

It could happen that the police informant believes that a matter is suitable for diversion but their authorising sergeant disagrees and has overridden the informant's decision. This could make it appear that the informant has changed their mind.

If the informant does not reply

If the informant does not respond to a request for a diversion the client can speak to the sergeant who has authorised the charge and direct the application to them. It is a good idea to keep a copy of all requests made and if the request has not been considered by the court date then the client can approach the police prosecutors, show them copies of the requests and advise them that these have not been replied to. The police prosecutor has the power to authorise diversion but they may still want to contact the informant or authorising sergeant first. The client can ask that this happens on the court date.

If told by informant that matter is suitable but not notice issued

If an informant has told the client that their matter is suitable for diversion but when they get to court no diversion notice has been issued the client can speak to the police prosecution at court. The prosecution has the power to recommend diversion but they will generally want to speak with the informant to find out their attitude towards diversion. The client can ask that this happens on the day of court.

Alternatively the client can apply in writing to the informant. This is the best way to proceed as the request needs to be carefully prepared.

Going back to court for a diversion hearing

Interview with diversion co-ordinator—how to prepare

A diversion co-ordinator will interview the person before the diversion hearing. Before the interview the offender will be given a form called a 'Diversion information sheet' to fill in while they wait to speak with the diversion co-ordinator. The form asks:

  • personal details such as age, sex, phone number
  • financial details including money earned and regular expenses such as rent, loan repayments, debts, car expenses and food
  • about their family and living situation, including whether the family know about the offence
  • about any study the offender is doing and previous education
  • about employment, employer details and previous work history
  • if they identify as being an Aboriginal or Torres Strait Islander
  • if the accused acknowledges responsibility for the offence
  • if they have participated in a diversion program before
  • if they have been found guilty of an offence before
  • if they have other matters pending
  • for an explanation about their offending conduct

If the matter is a road traffic offence

If the offence relates to a road traffic offence the accuse can expect to be asked questions about:

  • the person's driving history
  • the kind of licence held
  • how long the driver has been licensed
  • how many demerit points the person has accrued
  • why the accused needs a licence
  • damage to another's vehicle, whether accused was insured and whether they have paid for damages

The accused will need to bring their licence along to the interview.

Voluntary work

The accused may also ask questions to find out if a person may be suitable for voluntary work. The diversion co-ordinator can then make recommendations to the Magistrate and can find a voluntary work placement close to where the person is living. The offender will be given a 'Notice to offenders performing voluntary work' form. They will have to agree to the requirements and sign the form.

The diversion co-ordinator will also ask about the person's patters of use of alcohol and other drugs, including prescribed medication. They will also be asked about whether they have any pre-existing injury, illness, TAC or WorkCover claims.

If the person is on a disability support pension they will need to get documentation from Centrelink and a doctor to say that they have capacity to do voluntary work.

They will also be asked if the person has any cultural needs or beliefs that the voluntary work organisation needs to be aware of to provide a satisfactory work placement.

They may talk through some things that the person may be asked to do if they are placed on the diversion program.

Other issues

The offender will also be given the opportunity to add other relevant information such as:

  • achievements gained (sporting, academic or workplace awards)
  • voluntary work undertaken in the past
  • anything else the offender wants to tell the magistrate.

The role of the diversion co-ordinator is to gather information to assist the magistrate to make a decision. They do not have the power to reject a diversion recommendation. This is a matter for the magistrate to decide.

What to expect in the court room

In the courtroom the magistrate or registrar will read the statement of alleged facts. Usually they will decide whether to grant diversion ‘on the papers’. This means that the person does not need to be present while they read the paperwork. Part of the paperwork the magistrate will read is the information that the offender wrote in the 'Diversion information sheet' and a report from the diversion co-ordinator.

The magistrate will also read any supporting materials such as:

  • receipts showing that any damages have been paid for
  • reports from doctors or counsellors
  • certificates or awards that show how well the person has performed at work, at school or in a sports or recreation activity, and
  • character references from an employer, family or people who know the person well.

If diversion is granted

If the magistrate agrees to grant diversion, they will tell the person what conditions are attached to the diversion plan.

The conditions may include:

  • apologising to the victim in letter or personally
  • paying compensation to the victim
  • attending counselling or treatment (such as for anger management, or drug or alcohol treatment)
  • donating money to a charitable organisation or local community project
  • doing voluntary work
  • attending a defensive driving course or a road trauma awareness seminar, or
  • any other condition the magistrate or judicial registrar thinks is appropriate.

The matter is adjourned for up to 12 months while the person complies with the diversion conditions. After this there will be another hearing.

See Hearing when diversion complete.

If diversion is not granted

If the magistrate decides not to grant diversion, the person (or their lawyer) may get a chance to talk to them directly in a hearing.

If the magistrate believes that the matter is not suitable for diversion then the charges will be referred back to the mention list of the Magistrates' Court.

Unsuitable for diversion and wants to plead not guilty

The person's admission of responsibility, that they have to give to the magistrate as part of the diversion program, is not admissible as evidence in a proceeding for the offence that they have been charged with. It is not a plea. However, any communication that the person has with police could be admissible.

See s. 59(3)—Criminal Procedure Act 2009 (Vic)(opens in a new window) and Is diversion best?

More information

Criminal Procedure Act 2009 (Vic)

  • s. 59—diversion

See Criminal Procedure Act 2009 (Vic)(opens in a new window).

Reference

Magistrates' Court

See Magistrates' Court—Diversion(opens in a new window).

see also Magistrates' Court—Practice direction No. 1 of 2003(opens in a new window).

Case

In this Supreme Court case it was held that an accused's request for a matter to be adjourned for diversion must be heard in open court, it cannot be implied.

See Rumbiak v Hough [2004] VSC 95 (30 March 2004)(opens in a new window).

VLA website

The 'find legal answers' part of our website has information about diversion.

See Diversion programs(opens in a new window).

Updated