The Criminal Justice Diversion Program is governed by section 59 of the Criminal Procedure Act 2009. The Program provides mainly first time offenders with the opportunity to avoid a criminal record by undertaking conditions that benefit the offender, victim and the community as a whole.
The matter must meet the following criteria before a Diversion can be recommended:
The existence of prior convictions does not disqualify an accused from the program but the court will take this into account in deciding whether the Diversion Program is appropriate. Offences under the Road Safety Act 1986 may be suitable for Diversion. However, demerit points are still recorded with VicRoads for the relevant regulated offences. Anyone can apply for Diversion throughout the court process. However, Diversion cannot commence without the prosecution’s consent.
If you are granted Diversion and then do not complete the Program or adhere to the conditions, the matter is referred back to the Mention Court of the Magistrates’ Court as if the matter was being listed for the first time and all information regarding Diversion is removed from the file.
The main aim of a Diversion is to preserve and protect your good character. It is a rare opportunity to avoid a criminal history, which will benefit your future travel and employment prospects.
We can assist you in obtaining a Diversion in relation to your charges (should they be suitable) and can appear on your behalf at the Diversion Hearing or any non-compliance hearing associated with your Diversion.
Adjourned undertakings or Good Behavior Bonds
An adjourned undertaking is when an offender is found guilty of an offence but is released into the community unsupervised for up to five years. An adjourned undertaking may have conditions attached, the most common being to be of good behaviour (i.e. not commit further offences) for the duration of the undertaking. An adjourned undertaking can be made with or without conviction. You may be directed to make a contribution to the Court fund or to a charity.
The law relating to these orders is contained in sections 70–79 of the Sentencing Act 1991.
Should you not comply with any of the conditions of the undertaking during the adjourned period, you are liable to be re-sentenced for the offences that were orginally subject to the adjourned undertaking.
Community Based Orders
A community-based order gives offenders the opportunity to put a stop to criminal behaviour. It provides the courts with options for managing offenders in the community. Not all offences are so serious that custodial sentences are the best way to protect the community.
Community based orders provides offenders with an opportunity to undergo treatment or take part in educational, vocational or personal development programs.
In some cases, a community-based order may involve a requirement to perform a community service - and that means offenders have the opportunity to help the community as well as helping themselves. Management of the Order is the responsibility of Department staff.
Community Based Orders no longer exist, and have been replaced by Community Corrections Orders.
However, persons previously placed on Community Based Orders are still presently being breached due to offences committed whilst on the Community Based Order.
There are time limits that apply to Prosecuting Breaches of Community Based Orders.
We can provide you with the proper advice in relation to your breach proceedings and can defend you in Court should you be prosecuted for an alleged breach.
Community Corrections Orders
In short, A community corrections order (CCO) is a flexible order that allows you to serve your sentence in the community. These court orders have at least one condition attached. These conditions differ according to the kind of offence you have been found guilty of and your particular circumstances.
The Judge or Magistrate will determine the suitable conditions for you to be placed on such an order. You will first be required to undergo an assessment by the Office of Corrections to determine your suitability to complete such an order. The Magistrate or Judge, in certain circumstances, can still place you on an Order despite the Office of Corrections disagreeing.
You are liable to be resentenced in the event that you breach the order or do not comply with the conditions of your order. You will also breach the order if you re-offend whilst you are completing the order.
It is an offence to break (contravene) a CCO unless you have a reasonable excuse. If something happens and you cannot comply with the conditions of the order, you have to let the person who has been supervising you at Corrections Victoria know as soon as possible. You should also contact your legal representatives, as they can assist you in having the Order return to Court to be varied.
The maximum penalty for contravening a Community Corrections Order is three months jail or a fine of up to 30 penalty units.
When a court sentences an offender to a term of imprisonment (of up to three years in the Supreme Court or County Court, or two years in the Magistrates' Court) it may, in some situations, make a further order suspending the whole or part of the term of imprisonment. This means that you may not need to go immediately to gaol, or alternatively, you may only be required to serve part of that sentence in custody and the other part in the community.
The period of suspension is known as the operational period. During this time, the offender is free to live in the community on the condition that he or she does not commit a further offence punishable by imprisonment. If the offender breaches this condition, in addition to being sentenced for the new offence, the suspended prison sentence will be activated unless there are exceptional circumstances.
Exceptional circumstances’ is a very stringent test applied by the Courts, and a breach of such orders are taken seriously.
There are different rules which relate to suspended sentences in the Magistrates’ Court and the County and Supreme Courts.
Suspended sentences were abolished from 1 May 2011 for all serious crimes coming before the Supreme and County Courts. From 1 September 2013, suspended sentences were abolished for all remaining crimes coming before the Supreme and County Courts. From 1 September 2014, suspended sentences were also abolished for crimes that appear before the Magistrates’ Court.
This is not a retrospective change in the law and any crime committed prior to the dates of abolition for each court can still attract a suspended sentence.
Intensive Corrections Orders
An Intensive Corrections Order was formerly recognized as a term of imprisonment served within the Community.
Much like a Community Based Order and Community Corrections Order, it required an assessment by the Office of Corrections and had several conditions attached.
Intensive Corrections Orders have been abolished and now has been largely replaced by a Community Corrections Order.
In the event that you are charged with a breach of Intensive Corrections Order, we can assist you at Court, as depending on the nature of the breach, you may be required to serve a term of imprisonment, in the absence of exceptional circumstances.