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: the accused and the prosecution must consent and the Magistrates' Court must consider diversion appropriate. In police matters, Victoria Police — commonly involving the informant and police prosecutions — considers whether to consent, but s 59 imposes a single prosecution-consent requirement rather than separate statutory consents. Section 59 is a Magistrates' Court provision. This article concerns accused persons dealt with in the Magistrates' Court and does not cover children whose criminal proceedings are dealt with in the Children's Court under the separate youth diversion scheme.

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. Diversion does not, however, avoid those points: s 59(7) expressly provides that diversion does not affect the incurring of demerit points under the Road Safety Act 1986 or its regulations, so any demerit points applicable to the offence are still incurred. 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 prosecuting agency is Victoria Police, commonly involving the informant and police prosecutions (or, in matters run by the Office of Public Prosecutions or another agency, in accordance with that agency's policies). Section 59 imposes a single prosecution-consent requirement, not separate statutory consents for the informant and the prosecution.

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. Section 59(6) preserves the requirement to observe the rules of natural justice. 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: the court's diversion registrar or coordinator may interview the accused, obtain relevant information, identify suitable services and possible conditions, and assist the court. The judicial officer decides whether diversion is granted and determines the conditions of the diversion plan.

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

The judicial officer determines the conditions of the diversion plan, assisted by the court's diversion registrar or coordinator. Not every condition is available in every case, and conditions are tailored in practice to the offence and the accused's circumstances. Common examples include:

• Apology. A written apology to any identifiable victim or affected person.
• Court Fund payment or donation. A payment to the Court Fund or a donation to a nominated charity.
• 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:

• Division 1 of Part 3 and Part 10 of the Confiscation Act 1997;
• section 9 of the Control of Weapons Act 1990;
• section 151 of the Firearms Act 1996; and
• Part 4 of the Sentencing Act 1991, concerning orders in addition to sentence.

Section 59(4)(d) also provides that participation in the diversion program and the discharge of the accused constitute a defence to a later charge for the same offence, or for a similar offence arising out of the same circumstances.

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)) — after a finding of guilt, the court may convict and release the offender on an adjourned undertaking under s 72, or release the offender on an adjourned undertaking without recording a conviction under s 75.
• Dismissal without conviction (s 76 Sentencing Act) — after being satisfied that the person is guilty, the court may dismiss the charge without recording a conviction and without imposing any further penalty.
• Unconditional discharge (s 73 Sentencing Act) — follows a conviction: the court convicts and then discharges the offender without further penalty.
• 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, a pre-sentence therapeutic court program for accused people with diagnosed mental illness or cognitive impairment and related needs — 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

Successful diversion produces no conviction and no finding of guilt, and the Magistrates' Court states that no criminal record is recorded. That is the ordinary outcome. Police and court information relating to the charge and the diversion may nonetheless continue to exist, and purpose-specific statutory screening, licensing regimes and enhanced checks — as well as questions framed around charges or court appearances rather than convictions — can be broader. 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

Frequently Asked Questions