There are 2 types of drug diversion programs in Victoria. Successfully completing the conditions of either of the programs means that a person will not have a criminal conviction recorded on their criminal record.
Police can choose to issue cautions to individuals who are caught with a small amount of an illegal drug, instead of charging them with a criminal 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. Matters may also be dealt with in the Drug Court. 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.
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 2 cautions.
In order to receive a caution:
- they 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.
A person who is charged with a drug offence may admit the charges and ask for permission to participate in one of the drug diversion programs in Victoria. This is normally only available for less serious cases.
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 plead guilty to the offence.
The law that governs drug diversion programs in Victoria is the Criminal Procedure Act 2009. It aims 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.
If participation in one of the drug diversion programs in Victoria is approved by the police, then the matter is listed for hearing. The Diversion Notice will contain proposed conditions, which may include:
- writing a letter of apology or gratitude to the victim of the offence
- making a donation to a specified charity or to the Court fund.
The Court will give you a date to hear your application for diversion. On that day the accused must complete a diversion questionnaire. This sets out their personal circumstances, and confirms that they are aware of the requirements of a diversion.
They are then interviewed by the Diversion Coordinator at the Court who will explain the purpose of a diversion and discuss the conditions proposed on the diversion plan. Then, a Magistrate or Judicial Registrar will decide the application. This may happen in chambers (in their office), or it may be listed in court where they will hear submissions.
A person seeking to participate in one of the drug diversion programs in Victoria should obtain testimonials or references as to their good character. These should be addressed to the Sentencing Magistrate. It should be clear that the author knows of the charges before the Court.
If Diversion is granted, then the Magistrate or the Judicial Registrar will explain to the offender the conditions of the Plan and the time frame allowed to complete those conditions. They are 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 in South Australia, there is no right of review or appeal, except in certain limited situations.
This article reflects the state of the law as at 7 March 2016. It is intended to be of a general nature only and does not constitute legal advice. If you require legal assistance, please telephone 1300 636 846 or request a consultation at gotocourt.com.au.