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NSW How to Deal With Ex Who Stole My Mother's Jewellery?

Discussion in 'Criminal Law Forum' started by Rochelle, 9 October 2014.

  1. Rochelle

    Rochelle Active Member

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    Hi, I would be grateful for some information that I am hoping will help guide me to determine whether the resolution I seek is fair. Here is the background: About 10 years ago, my ex stole about $30k worth of jewelry from my mother, when he was in the grips of a gambling addiction. My parents are now pensioners (they are in their 70s) living in a housing commission. I have only known about this incident for about 6 years when my mother decided to tell me and had made me promise to keep it a secret.

    About a month ago, I've decided I can't let the situation stay unknown and unresolved any longer. I wrote my ex a letter asking him to resolve this issue. I have been told that there is no statute of limitations for this, but the onus of proof lies with the police. Presently my ex is willing to make amends, but I have no way of knowing how to quantify the value of the restitution my mother and myself deserve. My current partner believes the original value + interest is the minimum.

    So my questions are: what is the penalty for this kind of theft, should I choose to go through the legal system if my ex decides not to go ahead with making restitution? How do I determine the rate of interest for the last 10 years, and how do I quantify the emotional cost? I am meeting with my ex in a week or two, to sort out an arrangement. He has already started sending me 2 x $50, and I'm thinking at this rate its going to take him 23 years to repay, just the jewelry without interest or compensation, and my mother will probably be dead. And I am thinking making an agreement in writing is best. How formalised does this need to be to be recognised in a court of law should he back out after its started? Thanks so much in advance.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Rochelle,

    You can choose to charge your ex with theft under criminal law, which would have no limitation period and would be in the police's discretion to decide whether there is enough evidence to pursue against the perpetrator. The maximum sentence for robbery/theft is 10 years imprisonment. This is at the very serious end. It will most likely be must lower than this. It will depend, amongst other things, on the nature of the items (i.e. were they of sentimental significance); the value; violence; circumstances surrounding the theft; motivation and mitigation factors; who the perpetrator is; remorse; actions taken to pay back or return the items. Note that for summary offences (i.e. minor offences), there may be a limitation on police to bring an action within 6 months of the incident.
     
  3. Rochelle

    Rochelle Active Member

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    Thank you Sarah. The stolen jewelry was older than my 44yrs and extremely sentimental. I have almost nothing else of value that my mother can bequeath me. My ex is sorry, but to date has made no effort to make amends until I sent the letter. What about the question on how to quantify value of restitution/compensation? I would like to know what the law says is fair recompense so that I can discuss this when I meet with my ex. When the theft occurred, he was thrown out of his family home ( a consequence of the gambling) and my mother took pity on him and asked him to move in with me & my family. The theft occurred shortly after. My mother told him the jewelry was for their funeral expenses as they are poor, but would have otherwise been bequeathed to me, as my brothers received my fathers jewelry which was not stolen.
     
  4. AllForHer

    AllForHer Well-Known Member

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    From the cases I've read about compensation, the court tends to award compensation that is comparable to say, if the monetary value was placed into a term deposit.. For example, it might award compensation as if you had placed $30,000 cash in a term deposit that pays 7% interest, compounded daily and paid monthly for a period of six years.
     
  5. Sarah J

    Sarah J Well-Known Member

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    Hi Rochelle,

    Sentencing in criminal matters are different from civil matters. Civil matters are more about compensation. However, criminal matters turn more on the "moral wrong" of the accused. Therefore, recovery of items/money to the victims, whilst one of the factors considered, will not be the only factor. Courts are allowed to sentence imprisonment, fines, other corrective services or a combination of both. The court will consider the financial situation of the accused when sentencing. Generally, corrective services or imprisonment or other non-pecuniary punishments will mean less in fines.
     
  6. Rochelle

    Rochelle Active Member

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    Ah ok, understand. Again, many thanks. I've got a much clearer picture of what is involved now.
     
    Sarah J likes this.
  7. Rochelle

    Rochelle Active Member

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    Hi again, my ex and I are currently negotiating repayment terms and I am considering the merit of entering into a legal contract with him. The reason for my consideration is whether this method will provide me with some safety net against him defaulting in the future. He has proposed an arrangement that spans 5yrs, without any guarantees. I'm not happy with this as I've been told by his current partner that he is gambling again, and even attempted suicide. So my question is whether entering into a legal contract will protect me if he doesn't abide by the terms of the contract?
     
  8. Sarah J

    Sarah J Well-Known Member

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    Hi Rochelle,

    A legal contract will only give you a right in contract law if your ex defaults. This means, you will need to take him to court (most likely the magistrates' court, but depends on the value of the loan) and initiate a civil action (as compared to criminal action). Although you'll most likely have a strong and fairly straight-forward case, this will be costly (e.g. court fees). You can apply for a consent order after the legal contract is made. This makes the contract similar to a court order, meaning that if he defaults, there will be greater consequences than just under contract law as he will be seen as violating a court order.

    In terms of enforcement of the orders, once you have a judgment order against him, you can approach his creditors directly (e.g. bank accounts) or seize valuable assets belonging to him (e.g. car) or place a charge over any large assets (e.g. house or shares). If he doesn't have any of this, then it will be very difficult to enforce however, you may not have any other options.

    If you do make the contract, make sure it is in writing and signed by the parties, is clear and both parties intend for it to be legally binding.
     
  9. Rochelle

    Rochelle Active Member

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    Ok I understand. Can I apply for the consent order independently? Would you have any idea of the cost? If he does default, do I still have the right to go to the police for the original crime?
     
  10. Rochelle

    Rochelle Active Member

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