29th December 2019
The cost of criminal activity in this State is skyrocketing and whether the impost is on our taxes or our insurance premiums we all pay, many times twice, but the criminals responsible, do not.
It is time to raise again that much maligned concept of restitution.
It is argued that most criminals, particularly younger ones, have no capacity to pay, so restitution is a waste of time. The capacity to pay should not influence the liability. The ability to pay and the liability are not mutually exclusive.
It may be some years before a criminal has the capacity to pay restitution but the debt should not be expunged by serving a sentence or other court sanction of any type, a bit like HECS fees. The victim or their Insurers do not have the capacity to wipe their cost, so why should the criminal who gained from the crime, avoid responsibility. There is something perverse about crime paying.
• The issue of reasonable restitution to victims should be determined by the Judiciary at a point in proceedings where the case is proved (Guilt is determined) and before the matter of sentence is addressed.
• The costs associated with the crime should form part of the Police Brief so the material is available to the court, the prosecution (to prosecute for appropriate restitution) and the defence (the defendant).
• Offenders under 18 can have the restitution liability linked to their parent/s. Once this becomes known, watch the improved supervision of minors by parents.
• Recovery of the restitution from perpetrators after they are released or have some other Court imposed sanction, should be managed by the Tax Office not the Courts on a set minimum rate of 25% of their income, irrespective of how that income is derived.
• At any time the Convicted person can expunge the debt by settling with the Tax Office.
• Social Service income should not be excluded and the restitution payments are not quarantined by minimum taxable incomes or other thresholds.
• The effect of any court order in relation to restitution liabilities must be retrospective to the date of the offence so that criminals who try to hive off assets (when caught) will have them seized to service the liability.
The implementation of this concept would be a major crime prevention initiative with criminals knowing that the liability for their behaviour will be there until the debt is settled, similar to Taxation liabilities.
The benefit to victims will be generally more symbolic, as some criminals will never make good on their debt, but many victims may benefit over time as the adage of, crime does not pay, becomes a reality for criminals.
White collar crime is an area where the greed of the offender (usually money) in effect becomes their penalty. It seems odd that the system incarcerates fraudsters and they can walk away unencumbered at the end of any sentence. The restitution liability would in many cases negate the need for incarceration and the criminal will be punished substantially by the thing that caused the offending, money. There is a pleasant irony that the motivator for their offending is the penalty they need to endure.
The bonus to all of us is that we do not have to pay for the incarceration.
Recidivist offenders would see their liability climb. That escalating debt may also act as a deterrent from further criminal activity knowing that at any time the tax office can seize any assets they accrue until the liability is expunged.
Using restitution as part of the legal consequences of offending will enable the Courts to substantially reduce the numbers of offenders in jail as the nonviolent that pose no physical threat to the community can make way in the prison system for more deserving cases.
At least if the matter is managed by the tax Office we can be assured of fiduciary competence as that office is equipped to manage the long game that this may end up being with career criminals.
That the restitution issue impacts on sentencing is problematic but the broader community would find it much easier to accept an apparent lenient court imposed sentence in the knowledge that the offender has a reasonable restitution liability to help the victim.