Diversion

What is diversion?

Diversion is a scheme operated by the police at their discretion. It provides for certain defendants (usually for first-time minor offences) to face the consequences of their offending, but to do so without receiving a criminal conviction.

If the defendant admits the offence and is willing to complete the diversion programme, they may be eligible for the police diversion scheme. This means that if the defendant completes the diversion requirements satisfactorily, the charge is withdrawn and no conviction is entered against the person's name. The police will record on their files that the matter has been diverted. If the defendant fails to complete diversion satisfactorily, the matter will be referred back to court.

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What does diversion involve?

The defendant meets with a police officer (usually the Diversion Sergeant) and discusses the charge. If the defendant admits the charge, he or she will discuss with the police officer how the matter can be put right. If the defendant comes to an agreement with the police, this will be recorded and signed by both of them. The agreement could require a donation to a charity, an apology to the victim, community work, or a combination of those things. The defendant may also have to attend a relevant course – for example, an alcohol and drug course or a violence prevention course.

Later, once the defendant has completed what they agreed to do, the police will withdraw the charge and no conviction will be entered.

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When is diversion available?

Whether diversion is available is up to the discretion of the police. It is usually offered when the following factors all apply:

  • it is a first offence, or the first offence by the defendant for at least five years
  • the defendant has admitted committing the offence
  • the complainant agrees with diversion (however, the decision whether or not to grant diversion rests with the police)
  • the offence is not considered to be very serious.

If there is a possibility that a defendant may be eligible for diversion, their lawyer should ask the court for a remand without plea (for information see “What type of plea can the defendant make?” in this chapter) and contact the police diversion officer to work out whether diversion will be offered.

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When is diversion not available?

Diversion will not generally be offered when any of the following apply:

  • the defendant has had diversion within the last five years
  • the defendant has previous convictions within the last five years
  • the offence is considered to be too serious
  • the offence involves drink-driving or domestic violence.

Because diversion is available only at the discretion of the police, there is no right of appeal against a refusal to offer diversion, other than asking a more senior police officer to review the decision.

Note:The rules regarding diversion are not hard and fast, and often a lawyer can persuade the police to offer diversion when the police may not have been intending to.

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