Please be ready with your application reference number starting with 'P'. For example P1234567
If the court finds you guilty of an offence, it will be recorded in your criminal records whether or not the court issues a conviction.
It is erroneous to think that non-conviction sentencing does not show in an Australian Police Check. While non-conviction sentencing may incur lesser penalties, they are still included in your Criminal History.
However, there is only one way to get sentencing or a finding of guilt out of your criminal record, and that is by getting a Diversion Program.
As provided by Section 59 of the Criminal Procedure Act 2009, Diversion Programs are an alternative to sentencing. The court, through Diversion programs, provides the first-time offenders with an opportunity out of a criminal record.
The diversion orders are special programs that serve as an alternative” escape" for first-time offenders/young people.
Having a criminal record in Australia is never a good thing for anyone, especially for young people. It can be detrimental to future ambitions and applications, depending on your needs.
A person will be eligible to be considered for a Diversion Program if;
Only those who accept and agree to all the offences and charges can be eligible for the Diversion program. It means you accept the errors and acknowledge the impact it has on the victim or their properties.
However, it should not be mistaken for a pleading of guilt.
Only offences/charges that can be tried summarily or by a Magistrate as stated by the law can qualify as the Diversion program. Offences that are settled by a jury or judge (indictable offences) can hardly qualify for a Diversion program. Serious offences do not qualify for the diversion programs.
Where the offence contested has a minimum penalty attached to it by law, the court will have no choice but to follow the law. However, these kinds of offences are usually serious offences or repeat offenders.
The Police may consider your application if you convince them that you are eligible for a Diversionary program. Your legal representative should also engage the Police, victim or other prosecutors about the possibility of agreeing to a Diversionary program.
When you are issued with a court summons or charged to court, the first step is to engage the service of a competent lawyer. The legal service they will provide you will inform you of a suitable course of action.
These are the following steps that can help you exchange a "harmful" conviction for a much better Diversion program
A diversion will be impossible if the prosecution team or the victim does not consent to it. However, your legal representative can help reach an amenable agreement for all parties.
The offender must of course acknowledge and take responsibility for the offender this will hasten the victim agreeing to the Diversion program.
The prosecution will then apply to the court to enter a Diversionary Program hearing. After considering and accepting the application, the court will then serve you with a Diversion Notice. The first hearing is called the mentioned hearing, and the offender must be present at this hearing.
When you appear at the court, you should speak to the registrar about your court notice. They will provide you with a questionnaire that you must complete and submit. It helps the court to reach proper conditions about your Diversionary program.
The registrar usually speaks to the victim if they accept the conditions of the diversionary program and if any restitution is sought.
Once the questionnaire and interview are complete at the Registrar office, the matter will proceed to a judicial officer for a decision.
If a diversion is granted, the judicial officer will impose a set of conditions that must be completed as part of the program. These conditions may include but are not limited to
Afterwards, the matter is adjourned with a return court date set. This date is called the completion hearing, and the period in between allows the offender to complete the conditions.
If the diversion is not granted, the matter is referred to the general listings of the court.
It is crucial that you adhere, complete and document your Diversion conditions. These are the proofs that you will present to the court on the Completion hearing day. It marks the completion of your Diversionary program conditions.
However, the court considers attendance at the hearing in a case where there is no documentation. The Judge or Magistrate will hear the evidence that the conditions are/not met.
If the judicial official confirms that the offender has completed the conditions of their Diversion Program, the charges are dismissed. Such dismissal leaves no record or trace of the person's criminal records. It will be treated the same way as an official warning.
If the court, in the completion hearing, finds the offender guilty of defaulting in their conditions; they will refer the matter for further hearing.
At the further hearing, the court will determine to what degree, and circumstances the person faulted the conditions of their program.
The court may then;
It is important to remember the factors that make an offence eligible for a diversionary program. The court considers all these factors before they will issue a Diversionary program irrespective of whether the prosecution accepts the Diversionary program.
The other important factors are;
It is usually for first offenders; it is rare for a second-time offender to get a Diversionary program. The person must be a new offender.
The offence must not be indictable, or one that attracts a serious imprisonment term.
Some offences that are non-eligible for the diversion programs are;
If you get a diversionary program from the court, you will still have to settle any fines, license disqualification or demerit points imposed by the Police.
Pleading guilty is not the same thing as applying for a diversionary program. If the court considers your guilty plea, the best you will get is non-conviction sentencing. However, this will still be disclosed in your Police Check, and remain there for a long time.
The results of a Diversionary Program are removed from all your legal and criminal records in Australia. And even though they may be in a Police or Australian Court database, they are not disclosed in your national criminal history check.
After considering all factors, evidence and the questionnaire, the Magistrate/Judicial Registrar may decide against granting a Diversionary Program. If the court refuses your application for a Diversionary Program, it will proceed with hearing the original charge.
However, your legal representative can apply to a higher court to appeal or refuse the conditions of a Diversion program.
No, you don’t have to disclose or declare the result or record of a Diversion program to your employer or anyone. However, the court/law may make it mandatory when applying for certain roles, such as;
The informant must consent to the Diversion program before the court grants your application. Your lawyer may help you complete this letter, and it should include things like;
It may be helpful to include:
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