JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2010
DATE OF JUDGMENT:	4 June 2010
CASE MAY BE CITED AS:	Liang and Zhu v Chalmers
MEDIUM NEUTRAL CITATION:	[2010] VSC 241

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CRIMES COMPENSATION – Parents of murder victim – Aggravating circumstances of offence – Extended concealment of body – Pain and suffering – Grief and continuing emotional distress – Vulnerability of applicants – Differentiation of impact upon victims – Sentencing Act 1991, ss 3, 85A, 85B

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr T Moisidis	Michael Smith
For the Respondent	Ms C M Kenny SC with Mr K J Dernelley	Victorian Barristers Duty Scheme

TABLE OF CONTENTS

Background......................................................................................................................................... 4

Evidence as to the applicants........................................................................................................... 5

Payments under the Victims of Crime Assistance Act 1996...................................................... 10

Conclusions....................................................................................................................................... 10

HIS HONOUR:

Neil Cameron Chalmers (‘the offender’) has been found guilty of the murder of Shirley Liang (‘Shirley’) in February 2006.

Shirley’s father and step-mother now seek compensation pursuant to the provisions of s 85B(1) of the Sentencing Act 1991 (‘the Act’).[1]
[1]Sentencing Act 1991, s 85B(1):
(1)If a court—
(a)finds a person guilty of an offence; or
(b)convicts a person of an offence—
it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of subsection (2).

The claims are made pursuant to s 85B(2) for an amount for pain and suffering experienced by them as a direct result of the offence.

There is no dispute that the applicants are victims falling within the definition contained in s 3 of the Act. That definition includes a person who has suffered grief, distress, trauma or other significant adverse effect as a direct result of the offence, whether or not that consequence was reasonably foreseeable by the offender.

In turn s 85A relevantly defines injury to include:

d) grief, distress or trauma or other significant adverse effect;[2]

[2]Sentencing Act 1991, s 85A(1)(d).

The fundamental matter in dispute is what quantum of compensation should be awarded. Ultimately counsel for the applicants sought compensation in the sum of $150,000 for each applicant. Counsel for the offender submit that this claim is excessive.

The purpose of s 85B is to provide for compensation to victims and not to further punish offenders.

The Court may take into account the effect of an award upon the financial circumstances of the offender and the nature of the burden that its payment will impose.[3]
[3]Sentencing Act 1991, s 85H.

In the present case the offender has assets in the sum of $107,000…

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 Liang v Chalmers

Details

AGLC: Liang and Zhu v Chalmers [2010] VSC 241
Case: [2010] VSC 241
Decision Date: 4 June 2010

CaseChat Overview and Summary

The case of Liang v Chalmers was brought before the Supreme Court of Victoria by the parents of a murder victim, seeking compensation under the Sentencing Act 1991. The victim was murdered in 2011, and the accused, Liang, was found guilty of the offence. The parents claimed that the crime had caused them severe pain and suffering, grief, and continuing emotional distress. They also argued that the extended concealment of their child’s body by the offender aggravated the circumstances of the offence. The court was required to determine whether the parents were entitled to compensation and, if so, how much compensation was appropriate.

The legal issues before the court included whether the parents qualified as victims for the purposes of the Sentencing Act 1991 and whether the aggravating circumstances of the offence justified a higher level of compensation. The court also needed to consider the extent to which the parents’ vulnerability and the impact of the crime on them should be taken into account. The parents argued that the extended concealment of their child’s body constituted an additional aggravating factor that warranted a higher compensation amount.

In its decision, the court found that the parents were indeed victims within the meaning of the Sentencing Act 1991 and were entitled to compensation. The court recognised that the concealment of the body by the offender had exacerbated the parents' grief and emotional distress. The court also considered the vulnerability of the parents and the profound impact of the crime on them. The court awarded compensation, taking into account the aggravating circumstances of the offence, the parents’ vulnerability, and the severity of their pain and suffering. The final orders reflected the court's assessment of the appropriate level of compensation under the provisions of the Sentencing Act 1991.

Orders