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Going to court – asking for a diversion

Find out what a diversion is, what diversion program is, and the steps to request one.

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A diversion program is a way to deal with offence and give you a chance to avoid a criminal record. There are several steps that take place before it is granted.

There are several steps to be granted a diversion, you will need to ask permission in court, and then write to the informant for permission.

Diversion programs

If the magistrate agrees that you are eligible for diversion, you will be put on a diversion plan. You must follow certain conditions in this time.

You might have to:

  • write a letter of apology to the victim
  • get counselling (anger management, drug or alcohol treatment)
  • do an education course (defensive driving course, drug awareness program)
  • make a donation
  • do community work.

If you follow the conditions of your diversion plan, the charges are discharge so that you have no criminal record and no conviction.

A diversion plan usually goes for one year.

Eligibility

You will be eligible if:

  • your offence can be heard in the Magistrates’ Court
  • your offence does not have a minimum or fixed sentence or penalty
  • you agree that you were responsible for the offence.

Other factors considered

If you are eligible, the informant (usually the police officer who charged you) will need to give you a diversion recommendation. Then the magistrate will need to decide to grant diversion.

As a general rule, they will do this if:

  • this is your first offence
  • the offence is not too serious. For example, it might be criminal damage, shop theft, minor drug or careless driving offence.

You cannot get diversion for driving offences such as:

  • excessive speed
  • drink or drug driving
  • refusing to do alcohol or drug testing.

Demerit points

If you are accepted for diversion you will still get any demerit points for any driving offences. VicRoads are responsible for the demerit points system, not the Magistrates’ Court.

For more information visit the Transport Victoria website or ask for a review from Fines Victoria.

Going to court – ask for diversion

If you are going to court, it's a good idea to understand how to prepare before court. Visit Help at court – duty lawyer services.

How do I ask for a diversion?

Accept responsibility

Before doing anything, you must accept that you were responsible for the offence. This does not mean that you are pleading guilty.

But it does not mean that you are going before the magistrate saying that you know you did something wrong.

If you are granted diversion and you stick to the conditions, there will be no finding of guilt. This means you won't get a criminal record.

Get help from a duty lawyer

After accepting responsibility, the best thing to do if you want a diversion on the day is to get help and advice from a duty lawyer. Visit the registry counter and ask if there is one available.

If a duty lawyer is not available, speak to the staff at court registry counter. Tell them that you are going to ask the magistrate to adjourn (put off) your case, so you can ask the informant for a diversion recommendation.

The staff will send your file into the courtroom. This lets the magistrate know that your case can be heard.

At the hearing – ask for a diversion

Stay close to the courtroom or go in there and wait for your name to be called. This may take a while.

When your name is called, go to the bar table:

  • If you don't have lawyer go to the opposite end of the table from the police prosecutor. Stand when you speak to the magistrate.
  • If you have a duty lawyer, you will sit behind them.

Visit Going to court – pleading guilty for a diagram of where to sit when you have a lawyer.

Next, the charge is read and you can make your request for a diversion. The magistrate may then adjourn the case.

This is not the same as being granted a diversion, you need to Seek written agreement from the informant.

Note: Sometimes the informant will give you a diversion notice at the same time as you were served the police brief and other documents. If the informant is at court, they will have a copy of the diversion notice and your matter can go straight to a diversion hearing.

You will need to ask for your matter to proceed (go ahead) to a diversion hearing. If agreed, you will need to come back to court.

Find out more about Going back to court for a diversion hearing.

Seek written agreement from the informant

This is very important. The informant must agree to recommend you for diversion. If the informant has not already made a diversion recommendation you or your lawyer can write a letter asking for this.

The details of the informant should be in the charge sheet you received.

What should I put in my letter to the informant?

It may be helpful to include this information:

Information about yourself

  • an introduction – tell them who you are and what your offence was. also include what job you do and where you are living
  • why you are writing – i.e. to ask them for a diversion recommendation
  • information about whether you have already apologised to the victim
  • information about whether you have already paid or are willing to pay for any loss or damage suffered by the victim

The circumstances of your offence and prior convictions

  • reassurance, that this behaviour is out of character. This may be because you were affected by drugs, alcohol or both at the time of the offence
  • if you have no prior convictions and you are unlikely to break the law again

Your understanding of the diversion program

  • that you understand that there may be conditions like drug education or anger management counselling and you are confident you will stick to these conditions
  • that a criminal record would have a very bad effect on your future. For example, you are young and a criminal record would make it harder to get jobs in the future.

If the informant agrees

If the informant agrees, they will file a diversion notice with the court.

This lets the court know:

  • that the police have recommended diversion
  • they can book you in for a diversion hearing.

At this hearing, the magistrate decides whether they agree with the police and if they agree to grant you diversion.

Prepare for going back to court

Before coming back to court, get any paperwork that you can to back up what you have said in your letter.

For help asking someone for a character reference visit Going to court – writing a character reference. You want to bring medical reports (if relevant) also.

For more information about preparing documents visit:

Bring this paperwork to court.

Going back to court for the diversion hearing

A diversion co-ordinator will interview you before the diversion hearing. They will ask you to fill out a questionnaire before the interview. They may also discuss what is required as part of the diversion program.

When you go into the courtroom for the hearing, the magistrate or registrar reads the statement of alleged facts.

Usually they will decide whether to grant you a diversion ‘on the papers’. This means that you will not need to be there while they read the paperwork.

The magistrate also reads any supporting materials such as:

  • receipts showing you have paid for any damage you caused
  • reports from doctors or counsellors you have seen
  • certificates or awards that show how well you have done at work, at school or in a sports or recreation activity
  • character references from your employer, family or people who know you well.

If the magistrate agrees to grant you diversion, they will tell you the conditions of your diversion program.

If they decide not to grant diversion, you may get a chance to talk to them directly in a hearing. If you have a lawyer, they may be able to talk for you.

If there was a victim

A victim could be someone who was injured or someone who had something stolen from them. The diversion staff will have written to the victim to find out if they want you to get diversion.

If the victim does not want this, you may not get diversion. If the victim does not say anything, you may still be granted diversion.

If the informant or the magistrate do not agree to diversion

Your matter is put back into the court system. This means you have to go back to court for another hearing. You will need to think about pleading guilty of not guilty.

For more information, visit:

You can find out more about the diversion process in Victoria by visiting the Magistrates Court of Victoria website.

What if I do not obey the conditions of my diversion program?

If you do not follow your diversion plan (the conditions of your diversion program) your matter is put back into the court system. You will have to go back to court.

The magistrate may put you back into the diversion program if you can show that you have now completed all parts of it.

If the magistrate does not agree to put you back onto diversion, then you must decide if you are pleading guilty or not guilty to the original charges and to breaching the diversion plan.

Support from other organisations

Magistrates' Court of Victoria – Diversion: find out more about eligibility and the process involved in requesting a diversion.

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