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Chalmers v Liang

Chalmers v Liang

Case [2011] VSCA 439 16 December 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0084

NEIL CAMERON CHALMERS
	Applicant
v
GANG LIANG and TING-TAI ZHU
	Respondents

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JUDGES	MAXWELL P, REDLICH JA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 March 2011
DATE OF JUDGMENT	16 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 439
JUDGMENT APPEALED FROM	Liang v Chalmers [2010] VSC 241

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CRIMINAL LAW – Appeal – Compensation – Murder – Compensation awarded to father ($120,000) and step-mother ($60,000) of murder victim – Concealment of victim’s body by offender – Whether parents’ pain and suffering aggravated by concealment – Whether awards manifestly excessive – Whether applicant’s rehabilitation would be adversely affected – Application refused – Sentencing Act 1991 (Vic) s 85B.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C M Kenny SC with Mr C O Parkinson
For the Respondent	Mr T Moisidis	Michael Smith & Associates

MAXWELL P

REDLICH JA
KYROU AJA:

The applicant was convicted of the murder of Xiao Ling Liang (‘Ms Liang’). He was sentenced to 22 years’ imprisonment, with a non-parole period of 18 years. In a separate decision published today, the Court has refused his application for leave to appeal against conviction.

Following the conviction, an application was made to the trial judge by Ms Liang’s father, Gang Liang, and her stepmother, Ting-Tai Zhu, for a compensation order under s 85B of the Sentencing Act 1991 (Vic). Mr Liang and Ms Zhu were eligible to apply for compensation because each had ‘suffered … injury as a direct result of the offence’,[1] injury being defined to include ‘grief, distress or trauma or other significant adverse effect’.[2] After hearing evidence from Mr Liang and Ms Zhu, the judge assessed the compensation payable to Mr Liang in the sum of $120,000 and to Ms Zhu in the sum of $60,000.[3]
[1]Sentencing Act 1991 (Vic) s 85B(1).
[2]Ibid s 85A(1).
[3]Liang v Chalmers [2010] VSC 241 (‘Reasons’). The amounts ordered to be paid by the applicant were reduced in each case by $30,000, to take into account amounts already received by Mr Liang and Ms Zhu under the Victims of Crime Assistance Act 1996 (Vic).

The applicant now seeks leave to appeal against those awards,[4] on the ground that each award was manifestly excessive.
[4]An order under s 85B of the Sentencing Act 1991 (Vic) is included in the definition of sentence in s 3 of the Criminal Procedure Act 2009 (Vic). An appeal against such an order is, consequently, an appeal against sentence, for which leave of the Court is required: Criminal Procedure Act 2009 (Vic) s 278.

The applicable principles

It was common ground on the appeal that his Honour was correct to apply what was said by Neave JA in Director of Public Prosecutions (Vic) v Energy Brix Australia Corporation Pty Ltd.[5] Her Honour said that the factors which should be taken into account in assessing compensation for a person’s grief or trauma under s 85B include the following:

·the circumstances…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chalmers v Liang

Details

AGLC: Chalmers v Liang & Zhu [2011] VSCA 439
Case: [2011] VSCA 439
Decision Date: 16 December 2011

CaseChat Overview and Summary

In the matter of Chalmers v Liang, the appellant sought to appeal the compensation awarded to the victim’s parents by the County Court of Victoria. The respondent, Liang, had been convicted of the murder of his partner, Ms Chalmers, and was sentenced to a period of imprisonment. The deceased’s father and stepmother brought claims for compensation under the Sentencing Act 1991 (Vic) for the pain and suffering they endured due to their daughter’s murder. The County Court awarded the father $120,000 and the stepmother $60,000 in compensation. The appellant, Liang, contested the amounts awarded, arguing that the concealment of the victim’s body did not aggravate the parents’ pain and suffering, the awards were manifestly excessive, and that the compensation would adversely affect his rehabilitation.

The court was required to determine whether the concealment of the victim’s body by the offender aggravated the parents’ pain and suffering, and thus justified the amounts awarded. Additionally, the court needed to assess if the compensation awards were manifestly excessive and whether the awards would adversely affect the offender’s rehabilitation. The appellant argued that the concealment did not constitute an aggravating factor warranting higher compensation, and that the awards were excessive and would hinder his rehabilitation efforts. The court considered the principles of compensation under the Sentencing Act 1991 (Vic), the impact of the concealment on the parents’ suffering, and the proportionality of the awards.

The County Court found that the concealment of the victim’s body did indeed aggravate the parents’ pain and suffering, justifying the compensation amounts awarded. The concealment led to prolonged uncertainty and distress for the parents, which the court deemed a legitimate aggravating factor. The court also determined that the compensation awards were not manifestly excessive and that the appellant’s rehabilitation would not be adversely affected by the compensation payments. The court emphasised the importance of recognising the unique suffering experienced by the parents due to the concealment and upheld the original compensation amounts.

The court dismissed the appeal and confirmed the compensation awards of $120,000 to the father and $60,000 to the stepmother. The court's decision recognised the additional suffering caused by the concealment of the victim's body and upheld the awards as proportionate and necessary to compensate for the parents' pain and suffering.

Orders