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Drug Diversion Programs in Victoria

There are two types of drug diversion programs in Victoria. Successfully completing the conditions of either of them means that a person will not have a criminal conviction recorded for the offence and will not be sentenced through the courts. Diversions are aimed at first offenders who are charged with minor offences; however, a person will not automatically be ineligible for diversion because they have been in trouble before.

Purpose of diversion

Police can choose to issue a caution to a person who is caught with a small amount of an illegal drug instead of charging them with an offence and taking the matter to court. If a person is charged with a drug offence and the police consent, the matter may be referred to one of the court drug diversion programs in Victoria.

A caution or a diversion is generally offered in cases where a person is of prior good character and the offence is minor. These alternatives to the formal justice system allow a person to take responsibility for their offending and address their behaviour in a meaningful way while avoiding a conviction.

Matters may also be dealt with in the Drug Court if the defendant has a significant drug or alcohol problem. While having a matter dealt with in the Drug Court will almost certainly mean that a person has a criminal conviction, it is an alternative to a full time jail sentence and assists a person to stop using drugs.

Police cautions

A person who is apprehended by police for using or being in possession of a small amount of illicit drugs may be given a caution instead of being charged with an offence and having to go to court.

A person can receive a maximum of two cautions.

In order to receive a caution:

  • the person must admit the offence
  • they must have the drugs only for their personal use
  • police must be satisfied that they are using or are in possession of an illicit drug
  • the total amount of drugs must be a small quantity as set out in the Drugs, Poisons and Controlled Substances Act 1981
  • they must undertake a clinical assessment and start a drug treatment program within 5 working days.

If a person complies with all of the conditions of the caution, then no conviction is recorded. If they don’t, they may be charged with the offence and have to go to court.

Criminal justice diversion program

A person who is charged with a drug offence and admits the offence may ask to participate in the criminal justice diversion program.

For a matter to be eligible:

  • the Informant (the police officer responsible for the matter) must recommend diversion, and it must be authorised by their station sergeant. Sometimes the paperwork received from the police will contain a diversion notice. However, it may be necessary to ask the police to consider recommending diversion.
  • the offence must be capable of being dealt with in the Magistrates Court
  • the offence must not have a minimum or a fixed sentence or penalty
  • the person must admit the offence.

The law that governs drug diversion programs in Victoria is the Criminal Procedure Act 2009.

Diversion programs aim to:

  • make sure that any victim receives an apology and/or restitution
  • reduce the likelihood of re-offending
  • help offenders avoid a criminal record
  • help offenders to access counselling and treatment services
  • help local community projects with voluntary works and donations.

Procedure for drug diversion programs in Victoria

If the prosecution recommends a matter for diversion, the defendant will receive a diversion notice. They must attend court on the date they have been summonsed to do so and speak to the registry prior to the matter being mentioned in court.

The person will be asked to complete a questionnaire to help the court to determine whether diversion is appropriate.

A person seeking to participate in diversion in Victoria should obtain testimonials or references as to their good character. These should be addressed to the presiding magistrate. It should be clear that the author knows of the charges before the court.

When the matter is mentioned in court, the magistrate will decide whether or not to grant diversion. If diversion is granted, the court will outlines the conditions that must be followed for diversion to be successfully completed. These may include apologising to the victim, paying compensation to the victim, making a donation to charity or taking part in counselling or treatment programs.

The decision to grant or to refuse diversion

If diversion is granted, then the magistrate or the judicial registrar will explain to the offender the conditions and the time frame allowed to comply with them. The person is then given a copy of the Plan and the case is adjourned to allow them to complete it.

If all of the conditions of the Plan have been completed by the adjournment date, then the offences are discharged. There is no finding of guilt and the outcome is not recorded on a criminal record.

If the magistrate or the judicial registrar refuses to allow an offender to participate in one of the drug diversion programs, there is no right of review or appeal, except in certain limited situations.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.


Michelle Makela

Michelle Makela is a Legal Practice Director at Go To Court Lawyers. She holds a Juris Doctor, a Bachelor of Science (Psychology) and a Master of Criminology. She was admitted to practice in 2006. Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. 

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