The advantages and disadvantages of offering a diversion program

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Presentation transcript:

The advantages and disadvantages of offering a diversion program Planning Enforcement Officers Association State Conference 12 November 2015 Marcus Heath, Senior Associate

Overview What is a diversion program? The use of a diversion program in a planning enforcement case. The advantages. The disadvantages. Questions.

What is a diversion program? One way in which an offender can be dealt with in the Magistrates’ Court. Section 59 of the Criminal Procedure Act 2009. Accused to comply with conditions set by the prosecution and agreed by a Magistrate. Restorative justice.

Diversion programs in planning enforcement cases An option for appropriate cases. Prosecution in the Magistrates’ Court – s. 126 Planning and Environment Act 1987. Alternative to applying for an enforcement order in VCAT.

The advantages Tailor conditions to ensure compliance. No entry unless approved by a Magistrate. Accused acknowledges responsibility. Ability to address the impact on any victims. Incentive for the Accused to comply. If diversion ends up being the wrong way to deal with the matter due to non-compliance with the program by the Accused, the case goes back before a Magistrate. The non-compliance with the diversion conditions is considered by the Magistrate when sentencing, if the Accused is found guilty of the original offence.

The disadvantages Not appropriate in many cases. Program only applies to the offender. The order does not ‘follow the land’ compared to a planning enforcement order issued by VCAT. A diversion program cannot apply on an ongoing basis. Diversion ends within 12 months. Conditions can be agreed between the parties but then altered by the Magistrate at the diversion hearing. Administrative burden of monitoring compliance.

QUESTIONS

Disclaimer The information contained in this presentation is intended as general commentary and should not be regarded as legal advice. Should you require specific advice on the topics or areas discussed please contact the presenter directly.

Marcus Heath Senior Associate Telephone: (03) 8602 7234 Email: mheath@rk.com.au