The Criminal Justice Diversion Program (CJDP) is a sentencing option commonly utilised in the Magistrates’ Court for low-level offending and for first time defendants. Under the program, a Magistrate will order the defendant to fulfil conditions aimed at their rehabilitation, with the caveat that completion will result in a non-conviction. The imposition of conditions on the defendant can fulfil purposes such as punishment and denunciation, and the fact that participation in the program does not result in a criminal record can positively impact their prospects for rehabilitation.

Diversion can only be considered for a defendant under certain conditions: the offence is triable summarily, the defendant acknowledges responsibility for the offence, there is sufficient evidence to gain a conviction and a diversion is appropriate in the circumstances.

Magistrates’ have flexibility in determining the relevant conditions attached to the program. They are individualised to cater to the defendants circumstances and rehabilitative needs. Common conditions include donations, letters of apology to the victim, letter of gratitude to the police and compensation to the victim. It is also common that the Magistrate will give the defendant a year to complete the program.

Legislative Framework

The Diversion Program is empowered by section 128 of the Magistrates’ Court Act 1989. This legislation essentially states that if a defendant takes responsibility for the offence they have been charged with, that the court may adjourn the matter for up to 12 months to allow the defendant to participate in the program. The legislation provides that the defendants acknowledgement of responsibility does not constitute a formal plea of guilt and accordingly, there is no finding of guilt against the defendant that can be disclosed by police to employers and others. Upon completion of the conditions prescribed by the Magistrate, the defendant is discharged without a finding of guilt.

Who qualifies?

As noted, Diversion is only offered for low level offending. Offences punishable by a minimum or fixed sentence or penalty are not eligible for diversion.

The Diversion Program Procedure

A defendant is referred to the diversion program by the prosecution agency (typically Victoria police). It is common for defence lawyers to write to the prosecuting agency to engage in negotiations for diversion, however, the decision to refer is ultimately at the discretion of the prosecution. Prior to the formal diversion hearing (in front of the Magistrate), a diversion coordinator conducts a referral intervention with the defendant. If the defendant does not appear or does not wish to be considered for a diversion plan, the charges are referred back to the court. If it is agreed by all parties at the referral interview that diversion may be appropriate, then the matter goes to a Magistrate for a decision. In this diversion hearing, the role of the magistrate is to assess the suitability of the defendant for diversion. If the defendant is refused a diversion plan by the magistrate, the charges are referred back to mainstream court. If the magistrate decides to place the defendant on a diversion plan, the charges are adjourned and a return date set. Before the return date, the defendant is required to undertake conditions set by the Magistrate.

What Other Rehabilitation Options are Considered?

For more serious offences that do not qualify for the Diversion Program, there are alternative sentencing options that prioritise rehabilitation. A common option considered is a Community Corrections Order. These typically involve conditions whereby the defendant must complete unpaid community work, in combination with therapeutic treatment aimed at addressing the cause of their offending. These conditions may include undertaking medical and psychological treatment, being abstinent from drugs and/or alcohol, being supervised by a corrections worker, staying away from nominated areas or abiding by a curfew. In the higher courts, the maximum length of a CCO is five years, whilst in the Magistrates’ Court, the maximum length can be two years for one offence, four years for two offences and five years for three or more offences. Depending on the severity of the charges, the Judge or Magistrate may order more onerous conditions (usually involving additional community work).

Moreover, for offending that typically involves a term of imprisonment, courts may order a combination sentence whereby a short term of imprisonment is ordered in combination with the CCO. Combination orders are governed by section 44 of the Sentencing Act 1991. They are only ordered in circumstances where the offender has demonstrated good prospects for rehabilitation. The maximum term of imprisonment that can be combined with a community correction order is one year.

Lastly, an offender who breaches a condition of their CCO may be resentenced for the original offence and may face up to three months additional imprisonment for the breach.

How a Criminal Defence Lawyer can Help

The foray into the criminal justice system can often be the result of mental health issues, substance abuse problems, relationship breakdowns or other peripheral circumstances. With that in mind, rehabilitative sentences that prioritise getting individuals back on track is a key end goal for all criminal defence lawyers. At Galbally Parker, our Melbourne lawyers aim to get our clients the most appropriate sentence possible and ensuring that their rehabilitation is prioritised. Contact us today to find out how we can help.