The Complete Guide to the Criminal Justice Diversion Program in Victoria

For many people facing a first criminal charge, the biggest worry is not the immediate penalty but the lasting mark of a criminal record. In Victoria, the Criminal Justice Diversion Program offers eligible people a way to resolve a charge without a finding of guilt and without a conviction. This guide explains how diversion works, who is eligible, and how to give an application the best chance of succeeding. It is general information about Victorian law and is not a substitute for advice about your own matter.

What is the Criminal Justice Diversion Program?

Diversion is a pre-plea option in the Magistrates’ Court, governed by section 59 of the Criminal Procedure Act 2009 (Vic). Rather than the court taking a formal plea and sentencing you, the proceeding is adjourned for up to 12 months while you complete a diversion plan. If you complete the plan, the court discharges you without any finding of guilt and without a conviction. The program began as a pilot in 1997 and now operates in Magistrates’ Courts across Victoria.

Who is eligible for diversion?

Eligibility is set out in section 59(2). In general terms, the following must be satisfied:

• The charge is a summary offence, or an indictable offence that may be heard and determined summarily.
• The offence is not punishable by a minimum or fixed sentence or penalty. This is why many drink driving offences, which carry mandatory licence loss, are excluded.
• You acknowledge responsibility for the offence to the court.
• Both the prosecution and you consent to diversion.
• The court considers diversion appropriate in all the circumstances.

Importantly, Victoria does not impose a strict bar based on prior offending. A previous matter does not automatically disqualify you, although diversion is primarily aimed at first-time and low-level offending, and a clean record makes a grant far more likely.

The role of police consent

This is the single most important practical feature of diversion: the magistrate cannot grant diversion unless the prosecution consents. The magistrate has no power to order diversion over a police objection. In practice, the accused or their lawyer must approach the prosecution and seek a recommendation for diversion before the matter is dealt with. Because the decision turns on persuading the prosecution, the quality of the submissions made on your behalf can make the difference between a diversion and a conviction.

What does a diversion plan involve?

A diversion plan is tailored to the offence and to you. Conditions are intended to benefit you, any victim, and the community, and might include:

• making a donation to a charity or community organisation;
• writing a letter of apology;
• attending a counselling, treatment or education program;
• completing a road trauma or behaviour-change course;
• compensating a victim for loss or damage.

Once you complete the conditions within the set period, the charge is discharged. If you do not complete the plan, the matter returns to court and proceeds in the ordinary way; if you are later found guilty, the court must take into account the extent to which you complied with the plan.

Why diversion matters

A criminal record can affect employment, professional registration, travel and visa applications for years. Because diversion results in no finding of guilt at all, it is the cleanest available outcome — cleaner even than a finding of guilt without conviction. For the right matter, securing diversion is one of the most valuable results a criminal defence lawyer can achieve.

If you have been charged and want to know whether diversion may be available, contact us for a confidential discussion. We appear in the Ballarat Magistrates’ Court and across regional Victoria, and we offer fixed fees so you know where you stand from the outset.

Frequently Asked Questions

Am I eligible for diversion in Victoria?

You may be eligible if the charge is a summary offence (or an indictable offence that can be heard summarily), the offence does not carry a minimum or fixed sentence or penalty, you take responsibility for the offending, and the prosecution consents. There is no automatic bar based on prior history, but a clean record makes diversion more likely. Eligibility is assessed case by case under section 59 of the Criminal Procedure Act 2009.

Does diversion give me a criminal record?

No. If you complete your diversion plan, the Magistrates’ Court discharges you without any finding of guilt and without a conviction. The matter does not result in a criminal record, although police retain an internal record that you were diverted.

Who decides whether I get diversion?

Diversion requires the consent of both the prosecution (usually Victoria Police) and the accused, and the magistrate or judicial registrar must consider it appropriate. The magistrate cannot grant diversion over police objection, which is why early, well-prepared negotiation with the prosecution is so important.

What conditions might a diversion plan include?

Conditions are tailored to the offence and might include a donation to charity, a written apology, attending a road trauma awareness or counselling program, completing treatment, or compensating a victim. The plan runs for a set period of up to 12 months.

Can I apply for diversion myself, or do I need a lawyer?

You can ask the prosecution to consider diversion yourself, but the process is discretionary and persuasion matters. A criminal defence lawyer can prepare submissions, gather supporting material, and negotiate with the prosecution to give your application the best prospects of success.

Is diversion the only way to avoid a criminal record?

It used to be described that way, but that is no longer strictly accurate. Diversion avoids a finding of guilt entirely. Separately, a court may impose a sentence without recording a conviction under section 8 of the Sentencing Act 1991, and since the Spent Convictions Act 2021 some findings of guilt can later become spent. Diversion remains the cleanest outcome because there is no finding of guilt at all.