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). It allows the Magistrates' Court to deal with eligible offending without recording a finding of guilt or a conviction. Instead of entering a plea, the accused agrees to complete a set of conditions — known as a diversion plan — over a defined period. If the plan is completed, the charge is discharged.

Diversion is not an acquittal. It requires the accused to acknowledge responsibility for the conduct. It is also not a soft option: the conditions imposed are often meaningful, and a failure to complete them returns the matter to court to be dealt with conventionally.

The underlying philosophy is rehabilitative. The system recognises that, for low-level offending by people who have not previously come to police attention, a conviction can do more harm than good.

Eligibility Requirements

Three threshold conditions must be satisfied before a magistrate can grant diversion:

• The offence must be capable of diversion. The offence cannot be one that carries a minimum or fixed sentence, or one that is excluded by legislation. Most summary and indictable-triable-summarily offences that do not carry a mandatory penalty are capable of diversion.
• The accused must acknowledge responsibility. The accused must take responsibility for the conduct — this is not the same as a formal plea of guilty, but it is more than a denial. The acknowledgment cannot later be used as a plea if diversion is refused or fails.
• The prosecution must consent. In most matters the informant is a Victoria Police officer and consent is given by the prosecution on the informant's recommendation. Without consent, the court cannot offer diversion.

In practice, diversion is most commonly granted for first offending of a relatively minor nature — low-level theft, minor assaults without injury, criminal damage, possess small quantities of cannabis, careless driving and some other summary traffic offences (although serious traffic matters, drink driving and drug driving usually fall outside the scheme). Repeat offenders, more serious allegations and matters involving identifiable victim harm are far less likely to be offered diversion.

Police and Prosecution Consent

The single most important practical question in any diversion application is whether the informant will recommend it. Police take into account:

• the nature and seriousness of the alleged conduct;
• whether the accused has any prior history (including prior diversions, cautions or findings);
• whether there is an identifiable victim and that victim's views;
• the strength of the prosecution evidence and whether responsibility is acknowledged; and
• what the accused has done since being charged — counselling, restitution, programs voluntarily completed.

A well-prepared diversion application will usually include a brief written submission to the informant covering these issues, accompanied by supporting material such as character references, evidence of counselling and evidence of any voluntary restitution.

The Magistrates' Court Process

If diversion is on the table, the matter is usually listed for a dedicated diversion hearing. On the day:

• the accused, the prosecution and (where briefed) the lawyer attend court;
• the magistrate is told that diversion is recommended and the proposed conditions;
• the accused acknowledges responsibility for the conduct;
• the magistrate considers whether diversion is appropriate and, if so, adjourns the matter for the diversion period; and
• on the return date — assuming the conditions are completed — the charge is discharged.

If the magistrate is not persuaded that diversion is appropriate, the matter proceeds to a plea or contest. The acknowledgment given in the diversion application cannot be used as a plea.

Typical Diversion Conditions

Conditions are tailored to the offending. Common examples include:

• Apologies. A written apology to a victim or affected person, often handed up to the court and forwarded by the registrar.
• Donations. A donation to a nominated charity or to the court fund — typically a few hundred dollars and proportionate to the conduct and the accused's means.
• Counselling. Attendance at relevant counselling — anger management, drug and alcohol counselling, gambling counselling, mental health treatment.
• Educational programs. Completion of an approved course relevant to the offending.
• Restitution. Payment of compensation to a victim where loss has been caused.
• Good behaviour. An undertaking not to reoffend during the diversion period, typically 6 to 12 months.

Apologies and Donations

Letters of apology are common, particularly where the offending has affected another person. A good letter is short, plainly worded, takes responsibility without qualification, expresses genuine remorse and outlines the steps the writer is taking to prevent a repeat. Lawyers do not write the letter for the accused — but they will often review a draft and suggest changes.

Donations are calibrated to the offending and the accused's financial circumstances. Receipts must be provided to the court by the return date. Failure to pay the donation is one of the most common reasons that diversion plans are not completed on time.

Counselling Requirements

Where the offending suggests an underlying issue — alcohol or drug use, anger management, gambling, mental ill-health — the magistrate will often want to see evidence that the issue is being addressed. A counsellor's letter confirming attendance, engagement and (where appropriate) progress is usually sufficient.

Voluntary engagement before the diversion hearing is powerful. It tells the court that the accused has already taken the matter seriously, not just because a court has required it.

Effect on Criminal Records

The central benefit of diversion is that, on successful completion, there is no finding of guilt and no conviction. For most everyday purposes — standard employment checks, travel, insurance — the matter does not exist as a conviction.

That is not, however, the same as saying the matter disappears. The diversion is recorded on police databases and may be disclosed in limited contexts — including some Working with Children Checks, certain occupational licences and some national police checks depending on the purpose. It is important to be honest in any context where a diversion has to be disclosed and to seek advice if you are unsure.

What Happens If Diversion Is Refused?

Diversion can be refused at several points: the informant may decline to recommend it, the prosecution may decline to consent, or the magistrate may decide it is not appropriate. If that happens:

• the acknowledgment of responsibility made for the purpose of the diversion application is not treated as a plea;
• the matter returns to the ordinary list and the accused decides whether to plead guilty or contest; and
• all of the work done in preparing the diversion application — references, counselling, voluntary restitution — is still highly relevant to any plea in mitigation.

Even where diversion is refused, the same material often supports a sentence without conviction under section 8 of the Sentencing Act 1991 (Vic) — a different outcome, but one that can also avoid a recorded conviction in appropriate cases.

Common Misconceptions

• "Diversion is automatic for a first offence." It is not. A first offence is necessary but not sufficient. Police consent and the magistrate's discretion are both required.
• "I can apply for diversion myself at court." You can ask, but unrepresented applications are far less likely to succeed. The informant's view is shaped largely by the material presented before the hearing.
• "Diversion is a guilty plea." It is not. It is an acknowledgment of responsibility that, by statute, cannot be treated as a plea.
• "Once diverted, the matter is completely gone." Not entirely. There is no conviction, but the diversion is recorded and may be disclosed in some limited contexts.
• "Diversion is only for very minor matters." It is most common for low-level offending, but it can occasionally be granted for more serious matters where the circumstances are exceptional.

Why Early Legal Advice Matters

Most of the work that determines whether diversion is granted is done before the court date. Engaging with the informant early, preparing focused references, organising counselling, drafting an appropriate apology, and presenting the matter in the right way all materially affect the outcome.

Just as importantly, an experienced criminal lawyer will know when diversion is realistic and when it is not. If diversion is not on the table, a different strategy — a plea in mitigation seeking no conviction, or in some cases a contest — may be the better path. Identifying the right strategy early avoids wasted effort and improves the result.

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