What is the diversion program in Victoria?
The Victoria Police Diversion Program operates under Division 2 of Part 3 of the Criminal Procedure Act 2009. It allows the Magistrates' Court to adjourn a criminal charge and refer the accused to a diversion plan, rather than proceeding with a formal conviction and sentencing process. If the accused completes the conditions of the diversion plan, the charge is discharged without a conviction being recorded.
Diversion is not a separate court or a separate track. It operates within the Magistrates' Court, and the diversion hearing takes place before a magistrate. The accused does not plead guilty in the conventional sense; instead they acknowledge the conduct that underlies the charge, and the magistrate considers whether the matter is suitable for a diversion plan. If the magistrate grants diversion, the matter is adjourned and the accused completes the plan.
The program is specifically designed for lower-level offending where the accused does not have a relevant prior criminal history and where the matter is suitable for an early intervention approach. It is used across a range of offence types, not only drug offences, though it is particularly common in drug possession matters.
Who is eligible for diversion in Victoria?
Eligibility for diversion depends on a combination of statutory criteria and the exercise of discretion by the police prosecutor and the magistrate. The core criteria under the Criminal Procedure Act 2009 are that the accused acknowledges the conduct, that the police prosecutor consents, and that the magistrate is satisfied the matter is appropriate for diversion.
In practice, the program is generally available to first-time accused or those with a limited and dated prior criminal history. Accused with a history of prior diversion on similar matters are less likely to be accepted. The seriousness of the offending matters: low-level personal-use drug possession, low-value theft, minor assault, and some other summary offences are the types of matter most commonly diverted.
Diversion is not available for indictable offences that are not triable summarily, for sexual offences, for serious violence offences, or for matters where the accused does not acknowledge the conduct. The police prosecutor's consent is not merely formal: in some metropolitan court lists, there are informal policies about which charge types and prior histories the diversion program will be offered for. Your lawyer will know the current approach and can engage with the prosecutor accordingly.
How does the accused acknowledge the conduct?
The acknowledgment required for diversion is not a guilty plea in the conventional sense, and it does not result in a conviction being recorded. The accused acknowledges the conduct that the charge is based on, which means they do not deny that the behaviour occurred. This is different from pleading guilty to all elements of the offence as charged.
The acknowledgment is made before the magistrate at the diversion hearing. What is said during the diversion process is generally not admissible in later criminal proceedings if the matter were to be returned to the contested pathway. This protects accused from being disadvantaged if diversion is not granted or if they fail to complete the plan.
The distinction between acknowledging conduct and pleading guilty is practically important for people who feel the charge overstates what actually occurred. Your lawyer can advise on whether the way the charge has been framed is consistent with what you are being asked to acknowledge at the diversion hearing.
What does a diversion plan typically involve?
The conditions of a diversion plan are tailored to the nature of the offending and the needs of the accused. Common conditions include: attendance at a drug and alcohol assessment and treatment program; completion of a community work requirement; a requirement to write a letter of apology to the affected person or the community; a curfew; reporting obligations; and other conditions the magistrate considers appropriate.
The plan usually runs for a period of between three and twelve months, depending on the conditions set. During that period the accused must comply with the conditions and not reoffend. Compliance is monitored and the accused generally returns to court at the end of the plan period for the magistrate to confirm completion.
The conditions set must be achievable and proportionate. If the conditions proposed are impractical given the accused's circumstances (work commitments, location, health), those concerns should be raised before the diversion plan is finalised. A plan that cannot realistically be completed should not be accepted without exploring whether the conditions can be adjusted.
What happens if you don't complete the diversion plan?
If the accused fails to comply with the conditions of the diversion plan, the matter is returned to the Magistrates' Court for a further hearing. The court then considers whether to re-refer the matter to the diversion program with amended conditions, or to proceed with the charge in the ordinary way. In practice, a second referral to diversion is uncommon.
If the matter proceeds on the ordinary pathway after a failure to complete, the acknowledgment made at the diversion hearing is not automatically a guilty plea and does not bind the accused in the same way. The matter proceeds to a mention, the prosecution brief is served, and the accused makes a fresh decision about plea. The history of diversion referral and non-completion may, however, be relevant at sentencing if the matter ultimately results in a conviction.
The practical lesson is that a diversion plan should only be accepted if the conditions are ones you can realistically meet. If health, work, or other circumstances will make compliance difficult, that needs to be addressed at the diversion hearing so that the conditions set are genuinely achievable.
Does diversion appear on your criminal record?
Where diversion is successfully completed, no conviction is recorded. The charge is discharged. A standard police check (National Police Certificate) issued to you or to a prospective employer does not record a charge that was discharged through diversion. However, the matter may appear on a Victoria Police check in a form that is only visible to police, which is relevant to future diversion applications.
For regulated professions that require disclosure of all charges (not only convictions), the fact that a charge was laid and diverted may need to be disclosed to the relevant registration body depending on the terms of the registration requirements. This is a separate question from whether the matter appears on a police certificate, and it should be checked against the specific registration obligations that apply to you.
Contact Tringali Lawyers to discuss your matter and whether diversion is a realistic option. Diversion eligibility should be assessed at the first consultation, before the first mention date. Same-day responses to new enquiries, and urgent matters are seen within 24 to 48 hours.
How does a lawyer help in the diversion process?
A lawyer familiar with the diversion program can assess eligibility quickly, identify the relevant factors the police prosecutor will consider in deciding whether to consent, and engage with that prosecutor before the first mention. Approaching the diversion application in an organised and well-prepared way is more likely to obtain consent than appearing at the mention without preparation.
Your lawyer will also advise on what the conditions of the plan are likely to involve, whether those conditions suit your circumstances, and how to approach the acknowledgment at the diversion hearing. Where the police prosecutor is unlikely to consent, your lawyer can advise on the alternatives and whether to apply for diversion through the court in any case.
The diversion program is a valuable pathway for eligible accused, but it is not automatic and it is not guaranteed. The decisions made at the start of the matter, including whether to engage a lawyer and how quickly to act, affect whether the program is available and whether it succeeds.
