Diversion is any program that may be available to the child that, upon successful completion, results in the charge(s) being discharged without any formal finding of guilt.
Likely to result in
Likely to result in means the actual penalty the person would expect. The actual penalty will depend on all of the following:
- the nature and circumstances of the charge or charges
- the person’s prior convictions (if any)
- the seriousness of the offence (or the extent to which the law was broken) compared to other examples of the same offence (for example, the amount stolen, the nature of injuries or the amount of drugs)
- any mitigating or aggravating circumstances.
In assessing the likely penalty, the person’s financial position is not relevant. For example, a fine may be the likely penalty. However, if the person cannot afford to pay a fine and will seek a community correction order or imprisonment, the likely penalty is still a fine.
'Likely penalty' – examples
- A child is charged with theft of a packet of chips from a supermarket. The child has been charged because police believe they assisted the co-offender in stealing the chips by acting as a lookout. Their defence is that they did not see, know or in any way help the co-accused take the chips. The child has no prior convictions. They may have a good defence to the charges, but if the child is found guilty of theft, then the child will likely receive a penalty of a Good Behaviour Bond or less. Therefore, the child would not qualify for a grant of legal assistance under the first limb of guideline 5.1 but may qualify under the second limb if the child has a reasonable prospect of obtaining diversion.
- A child is charged with burglary and criminal damage. Police allege that after school hours, the child was on the roof of a school building, broke into the building through the skylight and stole two laptop computers worth $2500. When arrested and interviewed, the child told the police they sold the computers to buy ICE. They admitted to using ICE regularly.
The child has a prior finding of guilt for theft and possessing cannabis, where they received a Good Behaviour Bond. If found guilty, they would likely receive a penalty resulting in the court making an order involving youth justice supervision. In these circumstances, VLA would fund a grant of legal assistance.
Reasonable grounds for the appeal
Reasonable grounds for the appeal means that an experienced lawyer would honestly consider, in all the circumstances of the case, that the appeal is reasonably likely to succeed. This means more than having an arguable case. The grounds for the appeal must be sound. The grounds cannot be fanciful, imaginary, vexatious or contrived.
Reasonable prospect of acquittal
A reasonable prospect of acquittal means that a careful and experienced lawyer would consider it likely that a magistrate would find the person not guilty of the offence. The lawyer must take all the evidence and circumstances of the case into account, and the chance of acquittal must be real and not fanciful.
This requires much more than having only an arguable case. The evidence and circumstances include the:
- person’s instructions
- strength of the prosecution’s case, including both direct and indirect evidence
- admissibility of the prosecution’s evidence, which depends on the likelihood that:
- they obtained evidence illegally (for example, the person’s admission was not voluntary, the person was not informed of their right to silence or the police acted illegally)
- the evidence may be unduly prejudicial to the person
- the availability and strength of the evidence supporting the person’s defence.
Whether the person consents to enter into a Community Corrections Order is also not relevant. For example, if the likely penalty is a Community Corrections Order but the person does not consent to enter into an order and therefore faces an immediate term of imprisonment, that person still does not qualify under this guideline.
The expression ‘likely to result in’ means the same as ‘likely penalty’.
Reasonable prospect of diversion
A reasonable prospect of diversion means that a careful and experienced lawyer would consider it likely that the child would be found suitable for diversion. The lawyer must take all the circumstances of the case into account, and the chance of diversion must be real and not fanciful.
The circumstances include:
- the person’s instructions and general acknowledgement of the offending
- the nature and gravity of the offences
- any prior findings of guilt that may preclude them from participating in diversion.
Serious mental health issue or intellectual disability
This definition relates to Criminal Law guideline 2.
A person is considered to have a serious mental health issue if the person is receiving mental health services from a ‘designated mental health service’ within the meaning of the Mental Health Act . To ascertain whether a person has a serious mental health issue, VLA may accept evidence that the applicant is receiving services from a designated mental health service.
Intellectual disability in relation to a person over the age of 5 years means the concurrent existence of a significant sub-average general intellectual functioning and significant deficits in adaptive behaviour, each of which became manifest before the age of 18 years. In other words, intellectual disability needs to have developed during childhood. It does not apply to a person with cognitive disabilities developed after childhood, such as an acquired brain injury or age-related cognitive degeneration.
VLA requires evidence to establish the existence of a serious mental health issue or intellectual disability, as detailed in the Special Circumstances . Persons with acquired brain injury usually have reading or writing difficulties that cannot be resolved by using an interpreter or translator service. The Special Circumstances details the evidence required to establish a reading or writing difficulty.
Reviewed 04 April 2023