An alternative to imprisonment for young and first-time offenders

For young offenders (under the age of 18) and first-time offenders, a run-in with the criminal justice system can often be the start of a career in crime. Even if the offence does not result in a custodial sentence, the offender will be left with a criminal record, which can have a long-lasting impact on employment prospects. An approach that has been gaining popularity seeks to rehabilitate youth and new offenders, helping them avoid a damaging criminal record. It also aims to reduce the risk of the offender going on to commit a serious crime.

The alternative programme is known as ‘diversion’, because participants are diverted away from the criminal justice system. Diversion is voluntary and the participant takes part willingly. In the absence of full cooperation, the individual is subject to the standard due process of law.

What happens under diversion?

Instead of going to prison, the offender is offered a life skills programme and counselling. The family may also be involved. Diversion aims to encourage offenders to take responsibility for their actions and avoid re-offending. Diversion programmes are usually run by the provincial Department of Social Justice or by NGOs.

In the Western Cape, there are three levels of diversion. The level applied to the case will depend on the severity of the offence (and may also consider the age of the offender).

Level One Diversion

Level One Diversion is for less serious offences. It may involve:

• Written apologies
• Obligatory family time
• Counselling or therapy
• Symbolic restitution

Level One orders are put in place for a maximum of three months.

Level Two Diversion

Level Two Diversion includes all the activities specified in Level One Diversion, with the possible addition of:

• A maximum of 50 hours’ community service over six months
• Family group conferences
• Victim-offender mediation

Level Two orders may last for up to six months.

Level Three Diversion

Level Three Diversion is an intense programme, reflecting a serious offence, and only applies to offenders over 14 years of age. It includes the following:

• A residential component
• Community service of up to 250 hours over the course of a year

Who decides if diversion is appropriate?

If an offender is considered a suitable candidate for diversion, the attorney will make written and verbal representations to divert the case. If the senior prosecutor accepts the recommendation, the offender will be enrolled in a diversion programme. The probation officer remains responsible for adherence to the programme and must advise the magistrate of any non-compliance.

How effective is diversion?

Diversion is intended to be a better solution to a criminal sentence – both for the offender and for society. It is not a soft option and does not relieve the offender of accountability for their actions. Instead, offenders are encouraged to reconsider their life choices before they are irretrievably committed to a criminal life.

Diversion will not be considered if the interests of the criminal justice system and society are better served by prosecution and conviction (and potentially incarceration), for example if there is complete absence of remorse.

Does diversion mean a criminal record?

Diversion does not result in a criminal record, which means that employment chances are not impacted. In today’s climate it is hard enough to find a job. A criminal record can make it impossible and increase the likelihood of the offender committing further crimes.

Talk to us about diversion

At SD Law & Associates we think diversion represents a more humane and thoughtful response to juvenile crime and first offences. We all make mistakes; sometimes a second chance works. It may be our best shot at reducing the crime statistics for the next generation.

If you have been arrested and want to be considered for diversion, call Simon now.

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