The Court: Frankston Magistrates Court
The Lawyer: Rebecca Glew
The Charge:
The Allegations:
The client was a 21-year-old male at the time of the offence. He had been out drinking with some friends when a fight broke out at approximately 1:45 am between his group of friends and another group of men.
Some of the people involved sustained injuries requiring medical treatment as a result of the fight. It was conceded that our client had played a minor role in the incident, notwithstanding the seriousness of the offence.
Our client was arrested and interviewed approximately ten days later, when he admitted to being involved in the incident.
The informant in the matter recommended our client be considered for the Diversion Program, as he had no prior convictions, had made full admissions, and his role was at the lower end of the scale of offending.
The Diversion Program, operated by the Magistrates’ Court of Victoria, enables first-time offenders to avoid a criminal record and divert them away from the criminal justice system.
Successful completion of the program results in the charges being marked as “discharged.” Unsuccessful completion results in the charges being referred to open court.
There is generally a two-step process to participate in the program:
- The informant or prosecution must file a Diversion Notice with the court, endorsing their consent for a person to participate in the program; and
- A Magistrate must review the matter and deem it appropriate for the matter to proceed by way of a Diversion.
If the informant or prosecutor does not agree that the matter should proceed by way of a Diversion, the notice is withdrawn, and the matter will proceed in open court as any other matter would. However, if a Magistrate disagrees that Diversion is appropriate, you can make submissions as to why it is applicable. Suppose the Magistrate does not agree to place an offender on the Diversion program. In that case, the offender is not required to plead guilty to the offence (even though they are accepting responsibility) as it does not constitute a plea of guilty (s59(3) Criminal Procedure Act 2009 (Vic)).
At Court:
The client had received a Diversion Notice from the informant when he received his Brief of Evidence. He attended court to participate in the Diversion Program, but the Notice was withdrawn by the police prosecutor at court. The matter was adjourned, and he sought legal advice from our firm.
Interestingly, the informant also recommended a co-accused from the other group of men involved in the incident for Diversion. That matter was listed on a separate day to our client. A different police prosecutor allowed the matter to proceed by way of Diversion, and it was adjourned to a future date to facilitate this process.
Our office knew that the co-accused had been given the opportunity of Diversion. Accordingly, we attended on the return date to argue that our client should be given the same opportunity and that the Magistrate on the day could make the ultimate decision as to whether it should proceed according to the sentencing principle of parity (i.e. when people are charged with the same offence resulting from the same incident, they should receive similar penalties from the court). The prosecution conceded that it should be listed on the same day as the co-offender, and the Magistrate should decide.
The parties attended on the final date, where the Diversion Coordinator interviewed them. The coordinator collected information from our client regarding his reasons for the offence and his personal circumstances.
Unfortunately, the Magistrate determined that the offence was too severe to proceed by way of Diversion but wanted to hear submissions as to why the client should be placed on the Diversion Program. The matter was called in court, together with the co-accused’s matter, which had also been deemed too serious to be dealt with by way of Diversion.
We made submissions to the Magistrate that:
- Our client’s role was minor in that he walked away from the incident after his initial participation (the CCTV footage of the incident supported this);
- Our client was a youthful offender, having been 21 years old at the time of the incident; and
- A criminal record may affect his employment opportunities.
The Magistrate stated that he felt the summary indicated that our client was more involved in the incident than we had submitted, and that the co-accused was the least involved. We submitted that this was not the case and provided the CCTV footage for the Magistrate to consider.
The matter was recalled shortly thereafter. His Honour agreed with our submission regarding our client’s involvement and granted Diversion.
The Outcome:
Our client entered into a Diversion Plan to expire in 12 months. He was required to fulfil several conditions at that time, which, if completed, would result in the charge being discharged at the end of the period.
This was a fantastic result for our client, who was given an opportunity that most people charged with affray would not typically receive. Our client initially thought that his options were limited, given that the Diversion Notice was withdrawn by the prosecution in the first instance, and was grateful that we were able to secure him the opportunity to avoid a criminal record.
