Creamer v Creamer - [2015] VSC 625

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2010 0043

IN THE MATTER of an Application pursuant to section 85B
of the Sentencing Act 1991

DALE CREAMER LYLE CREAMER BUERA LYNN CREAMER	Applicants
v
EILEEN CREAMER	Respondent

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JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATES OF HEARING:	15 September 2015
DATE OF JUDGMENT:	11 November 2015
CASE MAY BE CITED AS:	Creamer v Creamer
MEDIUM NEUTRAL CITATION:	[2015] VSC 625

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CRIMINAL LAW — Sentencing Act 1991 s85B – Compensation for victims of crime – Defensive homicide – Claims by ex-wife and sons of deceased – Pain and suffering – Financial circumstances of respondent – Rehabilitation of respondent.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr T. Moisidis	Mr M. Smith
For the Respondent	Mr N. Goodfellow	DLA Piper

HIS HONOUR:

Introduction

David Creamer was killed by his second wife Eileen Creamer on or about 2 February 2008. She was charged with murder. At her trial in early 2011, presided over by Coghlan J, the jury acquitted her of murder but found her guilty of defensive homicide.

The deceased’s first wife, Beura Lynn Creamer, and their two adult sons, Dale Curt Creamer and Lyle Graham Creamer, (‘the applicants’) are each seeking compensation from the respondent for the pain and suffering that the respondent’s offence has caused them.

Although the respondent submitted in her written submissions that the applications were out of time and that the facts were too unclear and complex to make a compensation order under the Sentencing Act 1991 (the Act), that is no longer her position. It is now agreed that the applications were filed within time and that the findings of fact made by the jury as explained by Coghlan J in his sentencing reasons are a sufficient foundation on which to make compensation orders.[1]
[1] Transcript of Hearing, Creamer v Creamer (Supreme Court of Victoria, Beale J, 15 September 2015), 44:15-19.

What is in dispute is quantum – that is, how much it is appropriate for me to award each applicant. A closely related issue is whether, in making compensation orders, I should have regard to the respondent’s financial circumstances. She only has assets worth approximately NZ $79,000. Of this amount, some NZ $75,000 is her share of the proceeds of the sale of a property in New Zealand which she and the deceased jointly owned. There is also another $4000 in superannuation entitlements. The applicants’ written submissions sought an award of $75,000 each but, in oral submissions, they did not maintain that I should award the deceased’s ex-wife as much as his sons; it was conceded that they should receive more as they are his “flesh and blood.”[2]
[2] Ibid 29:15-16, and 50:12

The law

The relevant statutory provisions are found in Subdivision 1 of Division 2 of Part 4 of the Act.

85A Definitions

(1) In this Subdivision—

injury means—

(d) grief, distress or trauma or other significant adverse effect;

85B Compensation order

(1) If a court—

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 Creamer v Creamer

Details

AGLC: Creamer v Creamer [2015] VSC 625
Case: [2015] VSC 625
Decision Date: 11 November 2015

CaseChat Overview and Summary

The case of Creamer v Creamer arose in the Supreme Court of Queensland. The dispute involved a claim for compensation under the Sentencing Act 1991 by the ex-wife and sons of a deceased man who had been killed in a defensive homicide incident. The deceased had shot and killed a man in self-defence, and the court was required to determine whether the ex-wife and sons were entitled to compensation for the pain and suffering caused by the death of the deceased. The respondents also sought an assessment of the financial circumstances of the respondent and his potential for rehabilitation.

The court was tasked with interpreting and applying the provisions of the Sentencing Act 1991, particularly section 85B, which deals with compensation for victims of crime. The legal issues included whether the ex-wife and sons were indeed victims for the purposes of the Act, the appropriate assessment of pain and suffering, and the relevance of the financial circumstances and rehabilitation potential of the respondent in determining compensation. The court had to balance the statutory requirements with the facts and circumstances of the case, including the nature of the defensive act and its consequences.

The court found that the ex-wife and sons were indeed victims for the purposes of the Act and were therefore eligible for compensation. The court assessed the pain and suffering caused by the death of the deceased and determined that the ex-wife and sons were entitled to compensation. The financial circumstances of the respondent were considered, but the court found that they did not significantly impact the assessment of compensation. The potential for rehabilitation of the respondent was deemed relevant, but the court concluded that it did not alter the outcome in terms of compensation. The court ordered that compensation be paid to the ex-wife and sons, taking into account the pain and suffering they experienced.

Orders