What Is Diversion and Am I Eligible in Victoria?

What Is Diversion?

Diversion is a statutory process under section 59 of the Criminal Procedure Act 2009 (Vic). Where the preconditions in s 59 are met and the court considers it appropriate, the Magistrates' Court may adjourn the proceeding on a diversion plan without taking any plea and, if the plan is completed to the court's satisfaction, discharge the accused without a finding of guilt.

Diversion is not an acquittal and is not a determination that the accused did not commit the offence. It requires the accused to acknowledge responsibility for the conduct. Diversion is also not automatic: it is discretionary at every stage and can be refused by the informant, the prosecution or the court. Section 59 is a Magistrates' Court provision. Diversion pathways for children and young people are governed by separate youth-justice legislation and are not covered in this article.

Positive Scope Under Section 59(2)

Section 59(2) sets the positive scope of the diversion power. It applies before a formal plea is entered in a proceeding for:

• a summary offence; or
• an indictable offence that may be heard and determined summarily.

Offences that are triable only on indictment fall outside this positive scope — not because they appear in an enumerated exclusion in s 59(1), but because s 59(2) does not extend to them in the first place.

Exclusions Under Section 59(1)

Section 59(1) then removes further categories from the section altogether. Section 59 does not apply to:

• Section 59(1)(a) — an offence punishable by a minimum or fixed sentence or penalty. This expressly includes an offence punishable by mandatory cancellation or suspension of a driver licence or permit, or by mandatory driving disqualification, but expressly does not include the mere incurring of demerit points.
• Section 59(1)(b) — an offence against s 49(1) of the Road Safety Act 1986 that is not already caught by paragraph (a).

There is no separate open-ended category of offences excluded by unspecified "other legislation" in s 59. If a particular statute imposes additional constraints on how an offence must be dealt with, that has to be examined on its own terms.

Statutory Preconditions

Where s 59 applies, before a magistrate can order diversion the section requires that:

• The accused acknowledges responsibility for the offence to the court;
• Both the accused and the prosecution consent to the matter being dealt with by way of diversion; and
• The court considers diversion appropriate in the circumstances.

Each element is necessary; none is on its own sufficient. Even where every precondition is met, the magistrate retains an independent discretion to decline diversion.

Road Offences in Practice

The practical effect of s 59(1)(a) and (b) is that charges attracting mandatory licence cancellation, suspension or disqualification are outside diversion, as are charges under s 49(1) of the Road Safety Act 1986. Some driving offences remain capable of diversion where no such mandatory outcome or s 49(1) charge is engaged, and the section expressly preserves diversion for offences that merely attract demerit points. Whether a particular charge is capable of diversion depends on the exact offence, its penalty structure and the current legislation at the time of the hearing.

Family Violence and Sexual Offences

Family violence offending and sexual offending are not excluded from diversion merely by those labels under the text of s 59. Whether diversion is available or appropriate in a particular matter turns on the seriousness of the conduct, victim impact, any protective context (including intervention-order proceedings), the prosecution's consent and the court's discretion, any of which may make diversion inappropriate on the facts. Neither side has an entitlement and each case is assessed on its facts.

Prosecution Consent

Consent by the prosecution is a statutory precondition: without it the court cannot order diversion, and the court cannot dispense with consent under s 59. In most matters the informant is a Victoria Police officer and the decision is made by police prosecutions (or, in matters run by the Office of Public Prosecutions or another agency, in accordance with that agency's policies).

Section 59 does not provide any merits-review mechanism against a refusal to consent. In appropriate cases, further material can be provided and reconsideration requested. Judicial review under administrative-law principles is an exceptional and technical remedy confined to legal error in the decision-making process; it is not a general appeal route and requires specific advice.

Factors commonly taken into account by prosecutors include the nature and seriousness of the conduct, the accused's antecedents (including any prior diversions or cautions), the views of any identifiable victim, the strength of the case and whether responsibility is accepted, and any steps already taken by the accused — such as counselling, treatment, restitution or an apology.

The Court's Discretion

Even where the preconditions are met, the magistrate must be satisfied that diversion is appropriate. Considerations that regularly bear on the decision include:

• the seriousness of the offending and its circumstances;
• the accused's history, personal circumstances and rehabilitation prospects;
• any identifiable victim's views on the proposed course, where relevant;
• restitution, repair and steps already taken; and
• the public interest, including denunciation, deterrence and community confidence.

Statutory preconditions and discretionary considerations are not the same thing: the first must be satisfied before diversion can be considered at all; the second informs whether it should be granted in a particular case.

How a Diversion Application Runs in Court

Diversion is raised in the Magistrates' Court before any formal plea is entered. The matter may be adjourned for assessment by the court's diversion coordinator, who prepares a proposed diversion plan for the court's consideration.

On the diversion hearing the accused, prosecution and (if briefed) the lawyer attend court, the court is informed that the prosecution consents and of the proposed conditions, the accused acknowledges responsibility, and the magistrate decides whether to order diversion. If diversion is ordered, the proceeding is adjourned for the diversion period — the Magistrates' Court may adjourn for a period not exceeding 12 months. On the return date, if the plan is completed to the court's satisfaction, the accused is discharged under s 59(4). If it is not, the matter proceeds and the court may deal with it in the ordinary way. Individual registries and prosecutors handle matters differently and no invariant administrative practice can be promised.

Acknowledgment of Responsibility — Section 59(3)

An acknowledgment of responsibility for the purposes of s 59 is not a formal plea of guilty. Section 59(3) provides that the acknowledgment does not constitute a plea and is inadmissible as evidence in a proceeding for that offence.

That statutory protection is confined to the acknowledgment itself. Statements or admissions made outside the s 59 acknowledgment — for example in a recorded police interview, in a written statement, or in other material provided to the informant — may have different consequences. The precise wording and timing of what is said or provided in support of a diversion application can materially affect a person's position if diversion is refused or if the plan is not completed. Obtain case-specific legal advice before making any acknowledgment or other admission.

Typical Diversion Plan Conditions

Conditions are tailored by the diversion coordinator and approved by the court. Not every condition is available in every case, and conditions must be proportionate, lawful and realistically able to be completed. Common examples include:

• Apology. A written apology to any identifiable victim or affected person.
• Donation. A donation to the court fund or to a nominated charity, proportionate to the conduct and the accused's means.
• Treatment or counselling. Attendance at relevant counselling — for example alcohol and other drugs, anger management, gambling or mental-health treatment.
• Educational programs. Completion of an approved course relevant to the offending.
• Restitution or compensation. Payment for loss caused by the offending.
• Good behaviour. An undertaking not to reoffend during the diversion period.

Completion — Section 59(4)

Under s 59(4), if the accused completes the diversion plan to the court's satisfaction, no plea is taken and the accused is discharged without a finding of guilt. As a general rule, the participation is not to be treated as a finding of guilt for other purposes. That general rule is subject to the express statutory exceptions in s 59(4)(c), which preserve the operation of specified provisions — including specified confiscation, weapons, firearms and sentencing provisions — for which participation in diversion can still be relevant.

The practical significance is that s 59 does not unqualifiedly erase the event. It provides a defined statutory outcome with defined statutory exceptions.

Non-Completion — Section 59(5)

If the diversion plan is not completed to the court's satisfaction, the proceeding returns to court and may be dealt with in the ordinary way. Section 59(5) provides that, if the accused is subsequently found guilty of the offence, the court must take into account the extent of the accused's compliance with the diversion plan in sentencing. Non-completion does not itself establish guilt; the prosecution must still prove the offence in the ordinary way if the matter is contested. The acknowledgment made for the diversion application remains subject to s 59(3).

How Diversion Differs From Other Outcomes

• Diversion (s 59 CPA) — pre-plea; plan completed; discharge without a finding of guilt, subject to the s 59(4)(c) exceptions.
• Adjourned undertaking (Sentencing Act 1991 (Vic)) — sentencing outcome imposed after a finding of guilt; may be with or without conviction.
• Dismissal or discharge without conviction (s 8 Sentencing Act) — sentence imposed after a finding of guilt but without a conviction being recorded.
• Infringement notices — a separate regulatory pathway that does not usually result in a criminal court appearance or conviction, and is subject to internal and external review under the Infringements Act 2006 (Vic).
• Specialist court programs — for example the Assessment and Referral Court list — address underlying issues within a sentencing framework and are not the same as diversion.
• Ordinary sentencing — after a plea or finding of guilt, resulting in one of the sentencing orders under the Sentencing Act.

Records and Collateral Consequences

A discharge under s 59 is not a finding of guilt. Records relating to the charge and diversion may continue to exist; whether the matter is disclosed or must be disclosed depends on the particular statutory or administrative scheme in play and the wording of the question being asked. Contexts in which the position needs to be checked include:

• Working with Children Checks and similar probity checks — the disclosure and assessment rules are set by the governing scheme, not by s 59 alone.
• National police checks — what is released depends on the purpose of the check and the standards applied by the releasing agency.
• Firearms and other regulatory licensing — s 59(4)(c) expressly preserves the operation of specified weapons and firearms provisions.
• Professional registration — registered professionals may have notification obligations to their regulator.
• Immigration — visa applicants and non-citizens should obtain migration advice before accepting diversion; disclosure obligations and character considerations can arise.
• Insurance — duty-of-disclosure and claims-history questions can be broader than "convictions".
• Overseas travel — some countries treat underlying conduct as relevant to entry regardless of the domestic outcome.

Diversion does not guarantee that a matter will have no collateral consequence. Take specific advice before making disclosures.

Related Reading

• The Police Want to Interview Me: What Should I Do?
• Charged with Drink Driving in Victoria: What Happens Next?
• Personal Safety Intervention Orders in Victoria
• Criminal & Traffic Law Services

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