Diversion Program in Australia

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Australian National Character Check (ANCC) makes every effort to provide updated and accurate information to its customers. However due to the continuously changing nature of legislations for the Commonwealth and various States and Territories, it is inevitable that some information may not be up to date. The information on the website is general information only. The contents on the website do not constitute legal or professional advice and should not be relied upon as a substitute for legal or professional advice. While we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, suitability, accuracy or availability with respect to the information.

If the court finds you guilty of an offence, it will be recorded in your criminal records whether or not the court issues a conviction.

It is erroneous to think that non-conviction sentencing does not show in an Australian Nationally Coordinated Criminal History Check. While non-conviction sentencing may incur lesser penalties, they are still included in your Criminal History.

What is a Diversion Program?

As provided by Section 59 of the Criminal Procedure Act 2009, Diversion Programs are an alternative to sentencing. The court, through Diversion programs, provides the first-time offenders with an opportunity out of a criminal record.

Am I eligible to get a Diversion Order?

The diversion orders are special programs that serve as an alternative” escape" for first-time offenders/young people.

Having a criminal record in Australia is never a good thing for anyone, especially for young people. It can be detrimental to future ambitions and applications, depending on your needs.

A person will be eligible to be considered for a Diversion Program if;

• Accept responsibility for the offence

Only those who accept and agree to all the offences and charges can be eligible for the Diversion program. It means you accept the errors and acknowledge the impact it has on the victim or their properties.

However, it should not be mistaken for a pleading of guilt.

• The offence is minor

Only offences/charges that can be tried summarily or by a Magistrate as stated by the law can qualify as the Diversion program. Offences that are settled by a jury or judge (indictable offences) can hardly qualify for a Diversion program. Serious offences do not qualify for the diversion programs.

• The offence should not have a minimum/fixed penalty or senten

Where the offence contested has a minimum penalty attached to it by law, the court will have no choice but to follow the law. However, these kinds of offences are usually serious offences or repeat offenders.

• The Informant/Prosecution must consent to the program

The Police may consider your application if you convince them that you are eligible for a Diversionary program. Your legal representative should also engage the Police, victim or other prosecutors about the possibility of agreeing to a Diversionary program.

What are the steps to apply and get a Diversion Program?

When you are issued with a court summons or charged to court, the first step is to engage the service of a competent lawyer. The legal service they will provide you will inform you of a suitable course of action.

These are the following steps that can help you exchange a "harmful" conviction for a much better Diversion program

1. Confirm if a diversion program is available

A diversion will be impossible if the prosecution team or the victim does not consent to it. However, your legal representative can help reach an amenable agreement for all parties.

The offender must of course acknowledge and take responsibility for the offender this will hasten the victim agreeing to the Diversion program.

The prosecution will then apply to the court to enter a Diversionary Program hearing. After considering and accepting the application, the court will then serve you with a Diversion Notice. The first hearing is called the mentioned hearing, and the offender must be present at this hearing.

2. Attend the Court

When you appear at the court, you should speak to the registrar about your court notice. They will provide you with a questionnaire that you must complete and submit. It helps the court to reach proper conditions about your Diversionary program.

The registrar usually speaks to the victim if they accept the conditions of the diversionary program and if any restitution is sought.

3. The Decision of the Court

Once the questionnaire and interview are complete at the Registrar office, the matter will proceed to a judicial officer for a decision.

If a diversion is granted, the judicial officer will impose a set of conditions that must be completed as part of the program. These conditions may include but are not limited to

• Write a letter of apology to the victim
• Get counselling (anger management, drug or alcohol treatment)
• Do an education course (defensive driving course, drug awareness program)
• Donate to a charity organization or others stipulated
• Do community work.

Afterwards, the matter is adjourned with a return court date set. This date is called the completion hearing, and the period in between allows the offender to complete the conditions.

If the diversion is not granted, the matter is referred to the general listings of the court.

4. Complete your Diversion Program

It is crucial that you adhere, complete and document your Diversion conditions. These are the proofs that you will present to the court on the Completion hearing day. It marks the completion of your Diversionary program conditions.

However, the court considers attendance at the hearing in a case where there is no documentation. The Judge or Magistrate will hear the evidence that the conditions are/not met.

I have successfully completed my Diversion Program conditions

If the judicial official confirms that the offender has completed the conditions of their Diversion Program, the charges are dismissed. Such dismissal leaves no record or trace of the person's criminal records. It will be treated the same way as an official warning.

An offender did not complete the conditions of their hearing.

If the court, in the completion hearing, finds the offender guilty of defaulting in their conditions; they will refer the matter for further hearing.

At the further hearing, the court will determine to what degree, and circumstances the person faulted the conditions of their program.

The court may then;

• Cancel the Diversionary Program; or
• Adjust the conditions.

Where a Diversion Program application will not be granted

It is important to remember the factors that make an offence eligible for a diversionary program. The court considers all these factors before they will issue a Diversionary program irrespective of whether the prosecution accepts the Diversionary program.

It is usually for first offenders; it is rare for a second-time offender to get a Diversionary program. The person must be a new offender.

The offence must not be indictable, or one that attracts a serious imprisonment term.

Some offences that are non-eligible for the diversion programs are;

• Excessive speeding,
• Drink or Drug Driving E.g. DUI Offences,
• Refusing to take an alcohol test,
• Offences against corporate bodies,
• Sexually related offences,
• Aggravated Assaults,
• Theft,
• Serious Affray charges,
• Domestic Violence,
• Breaching an Intervention or Apprehended violence Order

If you get a diversionary program from the court, you will still have to settle any fines, license disqualification or demerit points imposed by the Police.

Should I plead guilty or request a diversionary program?

Pleading guilty is not the same thing as applying for a diversionary program. If the court considers your guilty plea, the best you will get is non-conviction sentencing. However, this will still be disclosed in your Nationally Coordinated Criminal History Check, and remain there for a long time.

The results of a Diversionary Program are removed from all your legal and criminal records in Australia. And even though they may be in a Police or Australian Court database, they are not disclosed in your Nationally Coordinated Criminal History Check.

What happens if the Court does not agree to your Diversionary Program application?

After considering all factors, evidence and the questionnaire, the Magistrate/Judicial Registrar may decide against granting a Diversionary Program. If the court refuses your application for a Diversionary Program, it will proceed with hearing the original charge.

However, your legal representative can apply to a higher court to appeal or refuse the conditions of a Diversion program.

Will you be required to disclose a Diversion Program in future?

No, you don't have to disclose or declare the result or record of a Diversion program to your employer or anyone. However, the court/law may make it mandatory when applying for certain roles, such as;

• Child-related roles e.g. Working with Children,
• Working with Vulnerable People,
• Financial roles,
• CPV and School Bus drivers.

Writing a Letter to the Informant or Prosecution pleading for a Diversion Program

The informant must consent to the Diversion program before the court grants your application. Your lawyer may help you complete this letter, and it should include things like;

It may be helpful to include:

• An introduction saying who you are and what your offence was,
• That you are writing to ask the informant for a diversion recommendation,
• Whether you have already apologised to the victim,
• A bit more about yourself. For example, what job you are doing, where you are living,
• That you have already paid or are willing to pay for any loss or damage suffered by the victim,
• That this behaviour is out of character. For example, you were affected by drugs, alcohol or both at the time of the offence,
• If you have no prior convictions and you are unlikely to break the law again,
• That you understand that there are conditions like drug education or anger management counselling and you are confident you will stick to these conditions,
• That a criminal record would have a very bad effect on your future. For example, you are young and a criminal record with a serious disclosable court outcome would make it harder to get jobs in the future.

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