Victorian Consolidated Legislation

Magistrates' Court Act 1989 - SECT 128A

Adjournment to undertake diversion program

128A. Adjournment to undertake diversion program





(1) This section does not apply to-

   (a)  an offence punishable by a minimum or fixed sentence or penalty,
        including cancellation or suspension of a licence or permit to drive a
        motor vehicle but not including the incurring of demerit points under
        the Road Safety Act 1986 or regulations made under that Act; or

   (b)  an offence under section 49(1) of the Road Safety Act 1986 not
        referred to in paragraph (a).

(2) If, at any time before taking a formal plea from a defendant in a criminal
proceeding for a summary offence or an indictable offence triable summarily-

   (a)  the defendant acknowledges to the Court responsibility for the
        offence; and

   (b)  it appears appropriate to the Court, which may inform itself in any
        way it thinks fit, that the defendant should participate in a
        diversion program; and

   (c)  both the prosecution and the defendant consent to the Court adjourning
        the proceeding for this purpose-

the Court may adjourn the proceeding for a period not exceeding 12 months to
enable the defendant to participate in and complete the diversion program.

(3) A defendant's acknowledgment to the Court of responsibility for an offence
is inadmissible as evidence in a proceeding for that offence and does not
constitute a plea.

(4) If a defendant completes a diversion program to the satisfaction of the
Court-

   (a)  no plea to the charge is to be taken; and

   (b)  the Court must discharge the defendant without any finding of guilt;
        and

   (c)  the fact of participation in the diversion program is not to be
        treated as a finding of guilt except for the purposes of-

   (i)  Division 1 of Part 3 and Part 10 of the Confiscation Act 1997; and

   (ii) section 9 of the Control of Weapons Act 1990; and

   (iii) section 151 of the Firearms Act 1996; and

   (iv) Part 4 of the Sentencing Act 1991; and

   (d)  the fact of participation in the diversion program and the discharge
        of the defendant is a defence to a later charge for the same offence
        or a similar offence arising out of the same circumstances.

(5) If a defendant does not complete a diversion program to the satisfaction
of the Court and the defendant is subsequently found guilty of the charge, the
Court must take into account the extent to which the defendant complied with
the diversion program when sentencing the defendant.

(6) Nothing in this section affects the requirement to observe the rules of
natural justice.

(7) This section does not affect the incurring of demerit points under the
Road Safety Act 1986 or regulations made under that Act.