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July 12, 2010 | by  | in Opinion | [ssba]


Laying down the law

Every once in a while, you have an opportunity to sit down and have a chat with a first year. Most first years are fine. Despite their reputation they’re reasonably mature, they don’t tend to say stupid things and they seem to have at least some understanding of university life. These are the boring first years. Then there are those first years. The ones who take up valuable library space arguing with their friends about whose fashion sense is more like Lady Gaga. Admittedly these first years are a tiny minority, it’s just that when you pass by one, you can sense it (or more likely, hear it).

Not long ago, I had the opportunity to speak to one of those first years, but better than that, it was one of those first years with a plan. This kid was one whose biceps would have been bigger than his brain, had he had one in the first place. Understandably then, the plan was about as simple as he was, not to mention, quite illegal.

Now would seem a reasonable time to ask, where is this going? Well, when asked about the risk of being caught and the potential consequences, his response was that he would “use his diversion on it”. While our simple first year is perhaps beyond the reaches of help, diversion may be something which could help you out one day, so it might pay to know something about it.
There are a few things which you should know about diversion. The first is that it is entirely discretionary and it’s not your discretion. You cannot decide to “use your diversion” on something stupid that you’ve done. The decision rests with the police and no one else. So while diversion is typically available to people who have no previous convictions and haven’t had diversion offered to them before, it isn’t an automatic ‘get out of jail free’ card. A decision has to be viewed in light of the type of offence, the circumstances, the interests of any victim and so forth. Of course, the upside of it being discretionary is that it is possible to be granted diversion more than once (just ask Ma’a Nonu).

Secondly, disversion is not controlled by the courts and the judges. Rather it is completely under the control of the Police Prosecution Service. It is up to the police as to whether or not they prosecute you, there’s no judicial oversight of the process. This means that if the police haven’t offered diversion, there’s not much that you can do to challenge that decision. Related to this, in accepting diversion, you must accept responsibility for what has happened as the police see it. In this regard, it is like pleading guilty in court. You cannot receive diversion and then proceed to maintain that you are innocent.

Finally, the charge against you will only be removed once you have completed diversion. Until that time, the charge will still be there and the police are still entitled to prosecute you.

So in the mean time… stay out of trouble.

Brought to you by the VUW Law Students’ Society


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