Communtity Law Manual | Criminal Courts | Alternatives to going to court: Diversion and restorative justice

Alternatives to going to court: Diversion and restorative justice

Diversion

What is diversion?

Diversion is a scheme operated by the police that allows first-time offenders to be dealt with outside the court system and avoid getting a criminal record, while still taking responsibility for their offending. In some cases, you may still qualify for diversion even if it's not your first offence or if you've had diversion before (see below).

The diversion scheme is run by the Police Prosecution Service (PPS). They have a wide discretion whether or not to offer diversion. Contact details for the PPS in each district are available at: www.police.govt.nz/about-us/programmes-initiatives/adult-diversion-scheme/contacts

Note: The diversion rules explained in this section aren't law but are instead police policy. The police have published that policy and also a factsheet, both of which are available on their website. The information we've provided in this section is based on that policy document and the factsheet.

When is diversion available?

Whether diversion will be available to you will be up to the police. The police diversion policy says that all cases must be considered on their merits.

Diversion is usually offered when the following factors all apply:

  • it's your first offence, or there are special circumstances – for example, it's your first offence for at least five years, or your previous offending was different, and
  • you've admitted committing the offence and accept responsibility for it, and
  • you agree to the conditions of diversion that the police have offered you, and
  • the offence is a less serious one.

    Note: The police can't use diversion when they don't have quite enough evidence to justify a prosecution. Diversion can't be offered unless the police have first decided that a prosecution would be justified by the evidence and have laid charges against you – they can consider diversion as an alternative to pursuing the charges through the normal court process.

What kinds of offences can be considered for diversion?

All Category 1, 2 and 3 offences will generally be considered “less serious” for the purposes of diversion and can therefore be considered for diversion. (For the different categories of offences, see “Overview of criminal procedures / Four offence categories” in this chapter.)

The following types of offences are usually too serious for diversion:

  • Category 4 offences – these are the most serious offences, like murder, manslaughter and torture
  • offences that must be prosecuted by the government lawyers at the Crown Law Office rather than by the police (these offences are listed in regulations)
  • Crown Prosecution Regulations 2013, reg 4

    those serious violent offences that carry a warning under the “3 strikes” law (see “Sentencing” in this chapter).

Diversion usually won't be offered for the following types of offending:

  • offending that's likely to carry a significant sentence
  • traffic offences for which you must be disqualified from driving for a minimum period
  • dishonesty offences where there's been a breach of trust, or burglary
  • family violence offences
  • other violent offences
  • sexual offences or offences with sexual overtones
  • serious drug offences
  • breaching a court order (for example, a family violence protection order or a name suppression order)
  • offences that are temporarily excluded from diversion in that particular police district because there's been an outbreak of that type of offence in the district (called “high prevalence” offences).

Past convictions, previous diversion, or youth offending: When diversion may still be offered

In some cases, diversion may still be available even if this isn't your first offence, or if you've had diversion before, or if you've been to the Youth Court – for example:

  • if the new offending is the result of an underlying problem that's likely to respond to counselling
  • if the consequences of not offering you diversion would be out of proportion to the seriousness of the offence
  • if the previous offending involved quite different offences or was a number of years ago.

For information about the Youth Justice system, go to www.youthlaw.co.nz

How diversion gets offered: The process

Diversion is usually initiated at your first court appearance for the charge. If the police are considering offering you diversion, they'll ask the court to adjourn (put off) your case without you entering a plea, so that a decision on diversion can be made and then, if it is offered, so that you can complete your diversion programme before your case goes back to court.

You'll have a face-to-face meeting with a police diversion officer from the PPS. This will happen as soon as practical after your first court appearance, and the time for it may be arranged before you leave court at your first appearance. The police can't offer you diversion until you've had this diversion interview.

At the interview, the diversion officer will explain the “ground rules” for diversion. The officer will be looking to see whether you accept responsibility for the offending by admitting that you committed the offence and showing that you're sorry for what you did (showing “remorse”). If you don't accept responsibility, you won't be offered diversion. The interview will also look into possible conditions of diversion that would be appropriate for you.

If the diversion interview has been held and you've agreed in principle to some conditions for your diversion, the police diversion officer will prepare a diversion agreement for you to sign. This will set out the diversion arrangement and the conditions you'll need to complete.

The police will always consult with any victim of your offending about whether you should be given diversion. The police will seriously consider the victim's views, but the final decision on whether to offer diversion will always be made by the police, not the victim.

If diversion doesn't go ahead and your case is instead dealt with through the courts in the normal way, then nothing you say at the diversion interview can be used against you later during the court process.

Note: If there's a possibility you might qualify for diversion, your lawyer should ask the court for a remand without plea (that is, your case is adjourned) and contact the Police Prosecution Service in the district to work out whether diversion will be offered.

If I've already pleaded not guilty, can diversion still be an option if I change my plea to guilty?

Yes. If you've already pleaded not guilty, you can still be considered for diversion if you change your plea to guilty, so long as you now accept responsibility for the offending and meet the other diversion criteria.

What will I have to do to complete diversion?

This will depend on the Police Prosecution Service when it offers you diversion. You'll have to voluntarily agree to the conditions before diversion can go ahead.

The conditions will focus on rehabilitation for you and reparation for your victim.

Rehabilitation conditions could include things like going to an alcohol and drug programme or a violence-prevention course. The purpose is to prevent you re-offending and to help you understand your own past behaviour and choices and the impact this had on the victim of your offending.

Reparation could include, for example, writing a letter of apology to the victim, paying them money to compensate them or making good any damage to property (such as painting over graffiti).

Other conditions could include, for example, making a donation to charity or doing some community work.

Restorative justice may be a key focus of your diversion conditions. The police diversion officer may seek to involve the victim and community workers in deciding on the conditions. Alternatively, the police diversion officer may decide that a separate restorative-justice process run by a specialist facilitator should be one of your diversion conditions. (See below, Restorative justice conferences”.)

The police policy says that the diversion conditions need to be:

  • proportionate to your offending – for example, the conditions can't be more severe than any sentence you might have been given if you'd been convicted in the courts
  • achievable within the time that's available until you're supposed to go back to court
  • appropriate – which means that they have to be targeted at reparation for the victim and rehabilitation for you.

However, sometimes you may not have to complete any conditions for diversion. For example, if you've spent the night in the police cells before going to court, or if you've had to take time off work for your first court appearance and the diversion interview, the police might decide you only need to sign a diversion agreement acknowledging your diversion, without any further conditions.

What happens after I've completed my diversion programme?

You'll need to show the police diversion officer that you've completed the diversion conditions – for example, by giving the officer the letter of apology that's to be sent to the victim, or your attendance sheet for community work, or a receipt from a counsellor for the counselling fee.

Once you've satisfied the police that you've completed the conditions of your diversion, the police will notify the court, and the court must then formally dismiss the charge against you.

Criminal Procedure Act 2011, s 148

If you don't complete your diversion programme satisfactorily, the charge against you will continue through the normal criminal court process, starting with you entering a plea (see “Entering a plea” above in this chapter).

How can I challenge a police decision to refuse me diversion?

If the police refuse you diversion, you can't appeal their decision to the courts. However, you can ask the police to review their decision. You, or your lawyer, should ask either the police prosecutor for your case, or the District Prosecution Manager from the Police Prosecution Service. You don't have to ask in writing – your request can just be verbal.

You can also ask for a review if you're offered diversion but you're not happy about the conditions the police have attached to it.

Note: The rules around diversion aren't hard and fast, and the police have a wide discretion about whether to offer it. Your lawyer may be able to persuade the police to offer diversion when they hadn't initially been intending to offer it.

Can employers find out from the police if I've had diversion?

If you've applied for a job and the employer asks the police whether you've ever had diversion, police policy is not to tell them, even if you've authorised the police to tell them. This is because the police take the view (following the Privacy Commissioner's view) that in this situation you may only have given this authority because there was an implied threat from the employer that otherwise you wouldn't be considered for the job.

If you have diversion, then the charges against you are dismissed and you don't get a criminal record. So, if you're asked if you have a criminal record, this doesn't cover getting diversion and you can truthfully answer no.

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