Referrals to Diversion (Vic)
Diversion programs provide first-time offenders with the opportunity to avoid a criminal record. When a matter is diverted, the offender agrees to abide by certain conditions for the benefit of themself, any victims of their offending and the broader community. The main purposes of diversion are to prevent reoffending, to assist in the offender’s rehabilitation and to ensure reparation is made to the victim.
Under the Criminal Procedure Act 2009 if, at any time before taking a formal plea from an accused in criminal proceedings for a summary offence (or an indictable offence that may be heard summarily), a magistrate is satisfied that:
- The accused acknowledges responsibility for the offence; and
- It appears appropriate that the accused should participate in a diversion program; and
- Both the prosecution and the accused consent to the matter being adjourned for this purpose
Then the magistrate may adjourn the proceedings for up to 12 months to enable the accused to participate in and complete a diversion program.
Discharge from court
The Act provides safeguards that the accused’s acknowledgment of responsibility of an offence is inadmissible as evidence in a proceeding for that offence as it does not constitute a plea. If an accused completed diversion to the satisfaction of the Magistrates’ Court, no plea to the charge is to be taken and the Magistrates’ Court must discharge the accused without any finding of guilt.
Participation in diversion is not to be treated as a finding of guilt except for the following purposes:
- confiscation and disposal orders under the Confiscation Act;
- forfeiture or return of weapons, dangerous articles or body armour under the Control of Weapons Act;
- forfeiture of items under the Firearms Act;
- restitution, compensation and forfeiture and disqualification provisions under the Sentencing Act.
Under Section 59(4) of the Criminal Procedure Act, the participation in diversion and the subsequent discharge from court is also a defence to a later charge for the same offence or to a similar charge arising from the same circumstances.
What if diversion is not completed?
If an accused does not complete a diversion program and is subsequently found guilty of the offence, the court must take into account the extent to which the accused complied with diversion when deciding on the appropriate sentencing orders.
How are matters referred to diversion?
In practice, defendants or their lawyers must speak to prosecution to seek an invitation for diversion prior to the matter coming before the court. The Magistrate does not have the discretion to order or invite the parties to consider agreeing to a referral to diversion for the accused.
Diversion from the Children’s Court
In the Children’s Court, the Department of Health and Human Services provides a Children’s Court Youth Diversion (CCYD) Service. The service operates to identify eligible children to undertake diversion programs for the purpose of addressing the harm caused by their offending. This may be done by taking responsibility for the acts, undertaking a diversion activity and addressing the causes of their offending. The young offender receives assistance to engage in support services and upon completion of the diversion program, has the charges dismissed. This results in a non-disclosable criminal record for the offences.
The Youth Diversion program is designed to give young offenders the chance to avoid the stigma associated with criminal records and their impact on future life opportunities. The CCYD is aimed at children charged with low-level offences with little or no criminal history who would otherwise receive a sentence that does not require supervision by the youth justice services.
How are youth matters referred for diversion?
This Youth Diversion process differs from diversion from the Magistrates’ Court. CCYD coordinators will conduct same-day assessments following a referral by a Magistrate. The CCYD coordinator consults the accused, their family or carer as well as Victoria Police prosecutors and legal representatives for the purpose of advising the court regarding the child’s suitability for diversion.
However, the Children Youth and Families Act states that the court may not adjourn a proceeding for the purpose of a child completing diversion if the prosecutor does not consent to the adjournment. However, the Children’s Court can apply judicial pressure such as refusing to take a plea or allowing the withdrawal of a plea. This power may be exercised if there has not been an application for diversion where the court considers it necessary to determine the appropriateness of diversion.
Children’s Court Magistrates tend to be active in recommending diversion. In instances where the prosecution is planning not to consent to diversion, discussions regarding that decision will usually occur in open court, ensuring the ultimate decision was reached in a transparent and accountable manner.
Who should make referrals to diversion?
The process of referring matters for diversion has been criticised for a number of reasons. Firstly, the requirement of prosecutorial consent for diversion creates a potential conflict of interest as a law enforcement agency’s work is assessed on the number of convictions and findings of guilt achieved. Secondly, the prosecution is not concerned with the accused’s personal circumstances. Their primary concern is whether the elements of the charge are made out.
Furthermore, the police’s absolute discretion in deciding whether or not to recommend a matter for diversion could be seen as problematic as there is no guidance provided in legislation or elsewhere as to how the discretion should be exercised. An accused has no right to appeal against a refusal of diversion and the court does not have the power to review such a refusal and grant diversion where the prosecution has withheld consent. This means that decisions may be inconsistent.
Without any knowledge of specific rules or criteria being applied by police, an accused or their legal practitioner is unable to intelligently discuss why their matter ought to be considered for diversion programs and address any concerns police may have in making this decision. These practices could be seen as contrary to the principles of natural justice and due process.
It has been proposed that an accused should be allowed to address the court on the issue of why the matter should be chosen for diversion and this outcome should not be dependant on a prosecutor’s consent. Supporters of this idea say that the views of the prosecution should only be one of many factors considered by the court when deciding whether to grant a referral to diversion.
Further, it has been suggested that diversion should only be considered by police prosecutors after they have liaised with the accused and their representatives to understand their personal circumstances in regard to the offending and that an accused should receive notice if a referral for diversion is likely to be refused and an opportunity to respond or provide further materials for consideration.
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