What is a Diversion Program, and How Can I Determine If I’m Eligible?
When you go to court charged with an offence, if found guilty, the outcome is recorded in your criminal record. A guilty verdict can result in a conviction or a non-conviction.
A non-conviction will receive a lesser punishment, but the information is still stored within your police history. A criminal record can have a major impact on a person, from job opportunities to the refusal of certain licences.
If you’re looking for an alternative way to have police information kept out of your criminal record check, or to avoid a criminal record altogether, you could be eligible for a diversion program in Australia.
What is a Diversion Program?
In Australia, a diversion program is an alternative penalty, and an opportunity to have your case handled outside of the court system. If you are granted a diversion program, you avoid a criminal record as well as sentencing.
Diversion systems operate to promote rehabilitation, seeking to address the heart of the matter. The offender must still take responsibility for the charges against them, and work toward good behaviour.
A diversion plan comes with conditions which must be met, and the program is only offered to those who are eligible. This usually applies to first-time offenders only, for more minor crimes.
How Can I Determine If I’m Eligible?
Diversion programs are most commonly issued to first-time and young offenders. As a criminal record can bring negative effects to young people especially, the court seeks to grant diversion orders in a bid to help the offender and to prevent the detrimental impact that a criminal history has.
The diversion grantal is not an escape from justice, but a chance to tackle the real problem that caused the person to offend in the first place. It could be drugs or alcohol related, and in this case, the underlying causes will be tackled.
It’s generally available to first-time offenders, but the magistrates will determine whether you are eligible for diversion. It is considered if the following applies.
- The offence is a summary offence
A summary offence is one which is only triable in the Magistrates Court. It means the offence is minor, and therefore does not require a jury to determine sentencing. Serious offences do not qualify for diversion orders.
- The prosecution agree to the diversion program
For the program to be granted, the prosecution must consent for it to go ahead. The police and the victim should be informed of the possibility of the program, so that they may agree to it.
- The victim agrees to the diversion program
In cases where there is a victim, they must also consent to this outcome.
- The offender takes responsibility for the offence
The diversion only applies to those who acknowledge responsibility for their actions. The offender must accept the charges, recognising the impact of their behaviour on the victim (where there is one).
It’s worth noting, other penalties may still be incurred, such as fines.
What Offences are Eligible For a Diversion Program?
Offences which do not come with a minimum or fixed penalty may be eligible for a diversionary hearing.
It is not guaranteed as special circumstances apply, but examples of eligible offences could be;
- Minor drug offences
- Careless driving (driving offences will still incur demerit points)
- Criminal damage
A form of careless driving would have to be a minor offence. Many other driving violations will not qualify for diversion, such as excessive speeding, driving under the influence of drink and/or drugs, and refusal to take an alcohol/drugs test.
When is a Diversion Program Denied?
The above factors constitute what makes an individual eligible for diversion. The order is not granted lightly, and the entire case must be carefully assessed before a decision is made.
So, if the person has previous offences, commits a more serious offence, or refuses to accept the allegations, the diversionary program is not considered an option.
It will never be issued for serious criminal activity, or offences which incur an imprisonment sentence by law.
There are some offences which are strictly non-eligible under the program. For instance, any of the following will generally require a harsher penalty.
- DUI offences
- Serious traffic offences
- Sexually related offences
- Offences against corporate bodies
- Violent offences such as aggravated assault, affray and domestic violence
Do I Have to Plead Guilty For a Diversion Program?
To be accepted for the diversionary program, an important condition is that the offender accepts responsibility for their wrongdoings. However, this does not mean pleading guilty.
A diversion program is not a criminal conviction. Instead, it is an alternative response to minor criminal behaviour. Where diversion is the outcome of court proceedings, it is exempt from appearing in your national police check.
The data is stored elsewhere, but it means you can apply for a national criminal history check without it appearing in the results. A guilty plea however, will incur a criminal record. This applies even if the court decides to hand down a non-conviction sentencing.
What is Non-Conviction Sentencing?
A non-conviction outcome means that the court has agreed that the person charged is not guilty of the offence. The person is not convicted, but the result will be shown in a nationally coordinated criminal history check in Australia.
Non-conviction sentencing usually comes with conditions. The individual may have to agree to certain legalities, like intervention or other rehabilitation programs. Generally once the conditions are met, it will be excluded from a background check.
Although recorded, if asked whether you have a criminal conviction, you can say no.
Do I Have to Disclose a Diversion Program?
A diversion order from the court is a good result. Not only does it mean you avoid a police record, you also don’t have to disclose it to a requesting party. For instance if applying for a job, you are not obligated to declare that you have received or are completing a diversion program.
Unfortunately for some, this is not always the case. When it comes to employment, some sensitive roles require full disclosure from all applicants. Australian law makes it compulsory in specific events for all police information to be shown. This includes diversionary programs, and even spent convictions.
Sensitive roles could include;
- Any child-related work or working with the vulnerable
- Public transport drivers
What Are the Conditions of a Diversion Program?
Once the program is granted, conditions will be set out to define how the individual must progress. It is part of the diversion plan, and could include;
- The offender remaining of good behaviour for a certain period of time, for instance, the next 12 months
- Sending a written apology to the victim
- Compensating the victim in some way, for instance, paying the cost of damages
- Sending a letter to the police informant to show your appreciation for the verdict
- Paying a fine
- Making a donation to a charity
- Attending counselling sessions
- Attending alcohol and drug related services
- Attending educational seminars, such as an alcohol awareness course
- Participating in community service
Can I Apply For a Diversion Program?
If you are being charged with an offence and believe you could be eligible for a diversionary program, there is a certain route to take. The program is not offered immediately, and must be reached through a process.
Whatever charges you’re facing, it’s important to hire a good lawyer. They can then assist you with essential advice, and help you to develop an approach to obtaining a diversion.
The pathway to this special outcome is the following.
- Discuss whether a diversion program is an option
The program is an alternative form of punishment, but it is not given to just anyone. In order to start thinking about this outcome, you need to determine whether it is an available option in your personal circumstances.
As the offender, you must accept and agree to all charges against you in order to qualify. A failure to acknowledge your role does not meet the conditions of the diversion order. If you admit your actions and show remorse, you could be accepted.
It only goes ahead if both the prosecution team and the victim consent to it. In no circumstances will it go ahead if the relevant parties disagree. A lawyer can help to navigate this process in a bid to reach an agreement.
If consent is given, the request for a diversionary program hearing will be orchestrated. Here, the court will review the application and either approve or dismiss it. If approved, the hearing will then take place.
- Write directly to the informant
Before the process can move forward, the informant must agree to a diversion recommendation. To ask for approval, you must write a letter directly to the informant.
The letter should include information such as;
- An introduction explaining yourself and your offence
- Your request to be recommended for diversion
- An explanation of why you committed the offence
- Your previously clean record
- The detrimental impact a criminal record could have on your life
- Complete the required paperwork
A judicial officer will provide you with a questionnaire to complete, and you will need to participate in an interview. Once this legal work is done, the matter can then be discussed and the conditions of the order determined by the court.
- Await the court decision
The next step is waiting for the final decision. In the case that the application for a diversion program is accepted, the conditions of the order will be outlined. The conditions must be fulfilled, otherwise further, alternative action will be taken.
- Successfully complete the conditions of the diversion program
When the final result is confirmed, you must adhere to all conditions of your program. At a later date, another hearing will be organised. This is the point where the court will review your compliance with the program, establishing whether you have met or failed the conditions.
It is of great importance that you complete your diversionary program. Once completed, the matter is considered over and the record of your behaviour removed. There will be no evidence of the event stored on your criminal record.
What Happens if the Conditions Are Not Met?
During the later hearing that reviews your program, the court will decide whether you have breached your conditions. If so, it must be determined to what extent you have failed to comply, and whether there are extenuating circumstances as to why you have not completed the program successfully.
If you are found guilty of not meeting the conditions, you will face further consequences. You may have the diversionary program cancelled, or the current conditions may be edited. The issue will return to the court system.
The Australian Diversion Program
Overall, the Australian diversion program is a highly positive outcome for a first time offence. Nobody wants a criminal record or Disclosable Court Outcomes in a national criminal history check. This is one way of avoiding one.
If you are lucky enough to be granted this order, you should make every effort to avoid future criminal behaviour and treat the program as a serious warning. You should also ensure that you comply fully with the order.