CRIMINAL JUSTICE DIVERSION PROGRAM

Diversion is on option available to all people charged with relatively minor offences when it is their first set of charges. It is an appropriate option if a person with a mental illness has committed a crime, and may be suggested by the informant. The case may then be diverted from the criminal justice system without the person receiving a criminal record if:

the offence is trialable summarily (in the Magistrates' Court);
the facts of the case are admitted;
there is sufficient evidence to gain a conviction;
diversion is appropriate in all the circumstances; and
the informant or the sub-officer authorising the brief consent to diversion.

If diversion is raised by the prosecution for a person with a mental illness, they may have formed the view that the person had a disability that impacted upon their offending behaviour, therefore there may be sufficient evidence to enter a defence of mental impairment (see: "Defence of mental impairment", above).

Anyone can raise the issue of diversion throughout the court process. However, diversion cannot commence without the consent of the prosecution. The Magistrate is able to make a wide range of orders as part of a diversion plan, including:

making a written or face-to-face apology to the victim;
performing community work;
receiving counselling or treatment;
paying compensation;
living at home; and
not associating with certain persons.

If the court orders that an offender "not associate with certain persons", section 12 or section 22 of the Charter may apply.

The charges are adjourned while the diversion plan is undertaken. On the return date, if the person has met all the conditions of the diversion plan the charges are discharged and no finding of guilt or conviction is recorded.

If the conditions of the diversion plan are not met, the Magistrate can:

extend the diversion plan for a further time period; or
set the case for hearing as if it was the first listing at the Magistrates' Court.

The diversion program is also available to offenders with an intellectual disability; some may be eligible for a community-based order (CBO) (see: "Intellectual disability" under "Sentencing", below).