Diversion – what is it and can I get it

This information relates to Victoria.

What is Diversion?

Diversion provides an Accused person with the opportunity to have their matter dealt with in a different way to the usual court process – its main benefit is that if granted, the Accused person avoids a criminal record. There is no conviction and no finding of guilt!

That means, if a police check is done on your record – nothing will show up for this matter.

Am I eligible?

To be eligible for Diversion you must meet the below points:

• The offence can be heard in the Magistrates’ Court;
• The offence does not have a mandatory minimum or fixed penalty; and
• You agree that you are responsible for the offence.

For example, if you are charged with careless driving, you may be eligible as there is no mandatory loss of licence (it is discretionary).

However, if you are charged with dangerous driving, you are not eligible as there is a 6 month minimum mandatory loss of licence period.

Is anything else required?

Yes – the Informant (the police officer who charged you), needs to provide you/your lawyer with a Diversion Notice. If the police agree that Diversion is appropriate, a Magistrate will still have the final say.

If this is your first offence and it is relatively minor, then you or your lawyer should speak to the informant and prosecution without delay.

Diversion is occasionally offered for second offences also, but this is less common.

What happens if I am granted Diversion?

If the Magistrate grants Diversion, you will be put on a Diversion Plan. Often the plan will require a combination of the following:

• Be of good behaviour for a certain period;
• Make a donation to a charity;
• Write a letter of apology to the victim;
• Undertake counselling; or
• Undertake an education course – such as a safe driving program.

What about demerit points?

If you are granted Diversion, and you were charged with a matter that incurs demerit points, those points will still go against your licence.

For example, if you are granted Diversion for careless driving, you will still incur 3 demerit points. The relevant law is section 59(7) of the Criminal Procedure Act.

Demerit points are managed by VicRoads, not the court.

What happens if Diversion is refused?

If this happens, either because the informant does not agree or the magistrate does not agree – then your matter is put back into the court system and you will have to go through the normal process. Click the criminal law tab on our website for more information.

What happens if you do not follow the Diversion plan?

Your matter will be put back into the court system. If this happens, it is a good idea to make sure that you do everything you can to complete the conditions of your plan before the court date.

The Magistrate can put you back on Diversion. If not, you will need to enter a plea of guilty or not guilty and start your matter from scratch in the court system.

Michael Nardi

Director/Principal Lawyer

0491 626 283