R v Chalmers
[2009] VSC 251
•22 June 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1454 of 2007
| THE QUEEN |
| v |
| NEIL CAMERON CHALMERS |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10-13, 16-19 February 2009 | |
DATE OF SENTENCE: | 22 June 2009 | |
CASE MAY BE CITED AS: | R v Chalmers | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 251 | |
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CRIMINAL LAW – Sentence – Murder – Premeditated – Protracted concealment and attempted destruction of body – Foreseeable consequences for victim’s family including young daughter – Health problems of offender – 22 years’ imprisonment minimum non‑parole period of 18 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose QC | Office of Public Prosecution |
| For the Accused | Mr C. Dane QC | Lethbridges Barristers and Solicitors |
HIS HONOUR:
Neil Chalmers you have been found guilty by a jury of 12 of the murder of Shirley Liang on or about 24 February 2006.
At the time you had been living in a de facto relationship with Ms Liang for some years.
You were 47 years old and she was 44 years old.
Ms Liang worked part‑time as a manager in a South Melbourne brothel, operated her own escort service and provided prostitution services to some longstanding clients.
You had a landscaping business with work initially in Sydney and then also in Melbourne in the period in issue.
Ms Liang had a daughter, Alicia, by another man born on 5 March 2003 (she was just under 3 years old at the date of her mother’s death).
Your motive for killing Ms Liang is unclear, but it is probable that it derived in some way from the ongoing relationship she had with you.
In any event, I am satisfied beyond reasonable doubt that late on 24 February 2006 or in the early hours of the following morning, you deliberately killed Ms Liang and almost certainly did so by applying pressure to her neck.
After killing her you carried her body downstairs to the car park of the apartment building in which you lived. That action was captured on a surveillance camera linked to a computer where it was recorded.
You then drove Ms Liang’s body to a grave site located in stringybark forest some 80 metres off Ennis Road, Tallarook. You buried the body and concealed it in order, as you have subsequently said, to make it disappear.
You then returned to Melbourne and sought to conceal the fact of Ms Liang’s death by a series of inter‑related lies to her friends, acquaintances, and family. After several days you fled overseas to Hong Kong for a short period, to get away from the scene of your crime.
On your return to Sydney Airport you were arrested by police, who had discovered the surveillance footage.
I am satisfied beyond reasonable doubt that the killing of Ms Liang was pre‑meditated by you and because this issue bears heavily on any assessment of your moral culpability, it is appropriate for me to state my reasons for so concluding in some detail.
Most significantly, I am satisfied that you went up to Ennis Road, Tallarook on 23 February 2006 and prepared a grave for Ms Liang prior to killing her. That conclusion rests on the circumstantial evidence as a whole, including the following:
· The fact that you had a four hour opportunity to prepare the grave after returning to Melbourne Airport on 23 February and driving to its vicinity;
· Next, the off‑road bush location utilised by you at the time of the burial in the early morning of 25 February;
· The GPS data demonstrating at least one and probably two u‑turns immediately before stopping in Ennis Road on 25 February at 6:16 am. Such manoeuvres strongly suggest a search for a previously located spot;
· The manner in which the body was buried and in particular the use of a substantial quantity of lime to assist its decomposition;
· The time within which you say the grave site was located for the first time, the grave dug, the body placed in the grave, the body limed and covered in. All of which would be required to be done in the period of one to one and a half hours on the morning of 25 February if they were in fact done at that time (recognising as I do that you were of a large and powerful build and had substantial experience in the task of digging holes in your business);
· The inconsistency between the state of panic attack which you described to police at the time of the exhumation of the body and elaborated in evidence at the trial on the one hand and the business‑like manner in which you checked the front security desk at your apartment block, then removed the body as shown on the surveillance video, drove out to Tallarook, completed the burial, and returned to the apartment and immediately commenced telling extended and coherent lies;
· The changes in explanation you have given for going to Ennis Road on 23 February. You have been caught between the story first told by you on the trip to recover the body to the effect that you went to the locality to source rocks, because they are so expensive costing ‘hundreds of dollars’ on the one hand, and the story manufactured at your trial, after hearing the Crown evidence, that you went up there for a preliminary investigation intended to inform you before you went to a supplier. This conflict was symptomised by your evidence that you had equipment available to you in New South Wales which you could use to collect the rock. In cross‑examination you stated that you had a three tonne tipper trailer in New South Wales and a capacity to hire an excavator. Given the evidence that one cubic metre of granite weighs between two to three tonnes, it can be seen the proposition that you might bring a trailer from New South Wales with a capacity to collect approximately one cubic metre of rock from Tallarook for a job at Hallam is hardly credible;
· The failure to produce documentation to substantiate the job for which the granite was allegedly required, in circumstances where such documentation exists (if your evidence is to be believed), and you have known at least since your first trial, if not before, that a key component of the Crown case is that you went up to Ennis Road on 23 February to prepare the grave and not for the purpose of your business;
· The ready availability of stone of the type which you say you sought to source. And the relatively low cost of such stone at $150 per cubic metre from a landscape materials supplier;
· The fact that you had conducted a landscaping business in Melbourne for some five years or so prior to the burial and dealt with landscape material suppliers, although you maintained in cross-examination, not a rock supplier;
· The failure to go back to Ennis Road on 24 February to speak to the landowner as you said in evidence at one point you intended to at the completion of your time there on 23 February; and
· Your admitted dishonesty in the period following Ms Liang’s killing which was persistent and pervasive.
Mr Dane drew my attention to the following matters in submission on your behalf:
(a) There is little evidence of violence to your victim’s body, although the capacity to obtain such evidence was limited by the extent of its decomposition during its concealment by you;
(b) The evidence is consistent with strangulation in the circumstances described by you, namely the application of force with the thumb of the right hand to the neck as you grasped Ms Liang by the neck. Further the evidence is consistent with the killing occurring in the marital bedroom;
(c) Next, if the killing was pre‑meditated from the time of the invention of Michael Wong in October of the previous year (as the Crown asserts) there were many other less incriminating locations in which to kill Ms Liang;
(d) There is no proven motive for the killing and it is submitted a significant absence of motive. It was not to your financial advantage, there was a large quantity of money found at the premises after the event. Further it is submitted that the evidence supports the view that you had a generally happy relationship with Ms Liang and a genuinely affectionate relationship with Alicia; and
(e) Your post‑offence conduct is equivocal in respect of the question of pre‑meditation and consistent with reaction to an unpremeditated killing.
In my view these matters do not outweigh the combined force of the circumstantial evidence to which I have referred and I am satisfied beyond reasonable doubt the killing was premeditated. In summary:
(a) The evidence as to the circumstances and manner of the killing is entirely consistent with premeditated murder (albeit that taken alone it is also consistent with other scenarios);
(b) I do not place any weight upon the invention in October 2005 of Michael Wong by you as a fictitious potential client for Ms Liang, as demonstrating premeditation. It is apparent however that you used this fiction as part of the deliberate lies told by you immediately and consistently after Ms Liang’s death;
(c) I accept that the prosecution did not prove a motive for the killing. It is the other circumstances of which I am satisfied, and in particular the preparation of the grave and your post‑offence conduct which satisfy me the killing was premeditated;
(d) I also accept that taken alone your post‑offence conduct would not demonstrate premeditation. It is the combination of that conduct with the circumstantial evidence as a whole which persuades me the killing was premeditated.
I should also record your counsel expressly refrained from making submission in your plea concerning the circumstantial evidence relating to the burial at Tallarook.
Your own account of Ms Liang’s death in evidence was that it occurred when you were having sex in the missionary position after having consumed amyl nitrate. You said the ingestion of the drug caused you to become dizzy to some degree and that Ms Liang asked you to place pressure on her throat with your hand during the sexual act. When you did so she died suddenly.
I do not accept this self‑serving account. It was given in the course of evidence which it is plain the jury rejected. In the course of that evidence you admitted serial dishonesty after the killing and I am satisfied told a number of further incidental lies. In so doing, your evidence was peppered with occasions on which you contradicted the evidence of witnesses, whose evidence had not been challenged by your counsel (despite the fact many were giving evidence at trial for the second time, and you had read the transcript of their evidence at the initial trial prior to the second trial).
In addition, I note that you have a series of convictions for fraud which your counsel stated on your plea are ‘indicative and supportive of the way in which [you] gave evidence’ and the evidence before me as a whole compels the view that self‑serving statements made by you are inherently unreliable.
I would add that there is no circumstantial evidence of the use of amyl nitrate on the night in question. Further, the fact that Ms Liang’s body was found fully clothed and that you initially stated in evidence she was buried in the clothes in which she died, then said you put her underpants back on before burying her at a stage you cannot remember, are circumstances counting against death in the course of a sexual encounter of the type you described.
In summary, I am satisfied beyond reasonable doubt that Ms Liang’s killing was pre‑meditated and I am not satisfied on the balance of probabilities that it occurred in the course of a sexual encounter of the type you described in evidence.
The consequences of your conduct have been to kill the mother of the little girl for whom you say you had affection. Further they have robbed Ms Liang’s parents of the support, comfort and filial affection of their daughter in circumstances where those parents were vulnerable in this community because they do not speak English.
The victim impact statements filed on behalf of Ms Liang’s family eloquently express the grief and loss you have inflicted on others. The statement of Ms Liang’s father describes in moving terms his sense of loss at his daughter’s death, and the consequential loss of a close relationship with his grand-daughter, which has occurred in the wake of his daughter’s death. He says among other things:
Because of Shirley’s murder, my grand‑daughter is facing a miserable future without her mother. For me there is no hope for my family or meaning in my life.
Ms Liang’s father also expresses the protracted suffering caused by your treatment of his daughter’s body.
Alicia’s father also writes of the loss of trust in family, loss of a mother’s care and the loss of financial benefits which the little girl has suffered as a result of her mother’s death.
There are a number of factors aggravating the moral culpability of your crime. First, as I have said I am satisfied the killing was premeditated.
Secondly, the fact that you killed Ms Liang in her home in the presence of her small daughter (albeit that it seems probable the daughter was asleep at the time).
Thirdly, the fact that you were disproportionately physically strong and large compared with your victim, a small and vulnerable woman.
Fourthly, your post‑offence conduct and in particular the extended and deliberate concealment of the body with the intention to destroy it. (See DPP v England (1999) 2 VR 258).
Mr Dane submitted at one point on your behalf that there was no defilement of Ms Liang’s body. I do not accept this. It is in my view plain that the body was buried in lime for a substantial period of time, with a deliberate intent to destroy and decompose it, and that intent was substantially achieved before it was recovered.
Turning to your personal characteristics, Mr Dane put your plea on the basis that you are a flawed man. You were orphaned in your early childhood and adopted and raised in a strict Presbyterian family in the western suburbs of Sydney. You attended Knox Grammar School where you demonstrated sporting prowess and were an average student.
Whilst in the cadet corps you suffered sexual abuse. You did not feel happy at home or at school.
You went on to work in a series of jobs and from 2001 on conducted your own landscaping business with some success. A number of references including some from the Samoan community, were tendered supporting the view that you conducted yourself well in that business.
Nevertheless it cannot be said you are of prior good character. You have a prior conviction for common assault in 1998 and some 27 further convictions between 1978 and 1999 for a variety of offences of dishonesty, ranging from assuming the designation of a member of the police to obtaining valuable property by false pretences and improperly obtaining Commonwealth sickness and other benefits.
Evidence was called on your behalf from two protestant chaplains at the Port Phillip Prison. They described your conduct in prison in positive terms. You are supportive of other prisoners. You have applied yourself to study and hold down a position of trust. You have expressed consistent remorse and concern in respect of Ms Liang’s daughter.
A report from Dr Lester Walton was also tendered on your behalf. I note in passing that you told him that on the evening of Ms Liang’s death, you had been drinking and that both of you took ecstasy. These are not circumstances that emerged in your evidence at the trial. I must record that I am not persuaded that your instructions to Dr Walton in these and other respects are to be regarded as truthful on the balance of probabilities. Dr Walton states:
Mr Chalmers describes a pattern of mood swings since childhood. There seems to be a well‑established pattern of his experiencing periods of elevated mood (euphoria and irritability), which may persist for a week or so at a time, and during these episodes he was prone to do ‘crazy things’, for example, participating in dangerous sporting activities and spending to excess.
Following elevated mood, Mr Chalmers may or may not enjoy a period of relative normality before he would become depressed for around two or three weeks at a time. He was given to isolating himself and ‘I would hide in the house’.
By the early 1980s Mr Chalmers had attracted a diagnosis of bipolar affective disorder. He can recall being treated with some form of mood stabilising agent, very likely lithium carbonate, as well as anti‑depressants, but he was plagued by side effects. He tended to avoid psychiatric treatment over the ensuing years but he was observed to be sufficiently depressed while on remand at the Metropolitan Remand Centre to attract treatment with the anti‑depressant, Paroxetine, and he has also been provided with the mood stabilising agent, Epilim. The latter remains a current medication.
Dr Walton concluded in part:
Routinely medical practitioners are reliant upon the accuracy of the history provided by their patients in order to reach sound conclusions and I note that Mr Chalmers does have an established history of providing false information. However, there is a grandiosity to at least some of his criminal offending involving dishonesty which is consistent with a diagnosis of bipolar affective disorder.
Clearly I am not in a position to provide a rigorous unequivocal opinion because I have not observed it directly myself but I am satisfied that Mr Chalmers is validly diagnosed with a bipolar affective disorder, which is why I have continued his treatment for that condition.
Mr Chalmers is a man of normal intelligence.
This man has a history of alcohol and drug abuse, temporarily as a young adult with some resumption in the context of his last relationship. However, at no stage does Mr Chalmers seem to have become substance dependant.
It can be seen that this is a less than overwhelming diagnosis in respect of bipolar disorder. Moreover you gave no evidence at your trial that you were suffering from major mood swing at the time of Ms Liang’s death. To the contrary your evidence was that her death occurred when you were acting entirely normally. You also gave no evidence that you suffered from pre-existing ongoing bipolar affective disorder.
Insofar as your present condition is concerned I accept that you have suffered from depression since being placed in custody but I am not persuaded on the evidence on the balance of probabilities that you are suffering from bipolar affective disorder. I do not regard a history of grandiosity in your dishonesty as a sufficient basis for this conclusion and there is no direct evidence of such a disorder since you have been in custody. Nevertheless it is apparent you suffer from sleep apnoea, chronic back pain and a series of other medical problems. I am prepared to accept that in combination these problems mean that a sentence of imprisonment will weigh more heavily on you than it would on a person of normal health (R v Verdins (2007) 16 VR 269).
I also accept that you do not have a history which exhibits a sustained pattern of violence either towards Ms Liang or towards others. I accept Dr Walton’s view that this is supportive of a more favourable prognosis in terms of your future behaviour than would otherwise be the case.
It is also submitted on your behalf that you feel real and continuing remorse for Ms Liang’s death and the consequences for Alicia and her family. It is difficult to give the latter matters great weight however having regard to the lengthy period over which you deliberately concealed Ms Liang’s body. Dr Walton states in this regard:
At least at this stage [he] can make an appropriate expression of remorse, perhaps somewhat limited, but it needs to be borne in mind that he is suffering from a major mood disorder.
I agree that when your behaviour after the killing is considered your expressions of remorse looked at as a whole are to be regarded as ‘somewhat limited’. Again, as I have already stated however, I am not satisfied on the balance of probabilities that you do suffer from ‘a major mood disorder’. Rather it seems to me your behaviour and state of mind have been persistently self‑centred and avoidant of acceptance of responsibility for your guilt.
Other matters raised on your behalf relate to the history of your prosecution. I do not accept that the delay in concluding your trial should itself be regarded as mitigating the appropriate penalty. The delay was substantially the result of your deliberate concealment of Ms Liang’s body up until the initial trial before Coghlan J had progressed some way. Its significance from your point of view is that it has allowed you to demonstrate positive conduct whilst in custody and to apply yourself to obtaining further qualifications in a consistent manner.
I further do not accept that the offer to plead guilty to manslaughter made by you at the time of the first trial, counts in your favour. You have been convicted of murder not manslaughter. The offer you made was made at a time when the evidence (including the video evidence) pointed overwhelmingly to the conclusion that you were responsible for killing Ms Liang.
Mr Chalmers in sentencing you I must impose a sentence which is just in all the circumstances of your case. That sentence must reflect the sanctity of human life and the gravity of the offence of murder which is reflected in the maximum penalty of life imprisonment which the law provides for the offence.
The sentence must also reflect considerations of both general and specific deterrence. Domestic killings by one party to a relationship of the other, are a continuing scourge and blight upon our society. As has occurred in this case, they almost inevitably cause continuing suffering and emotional trauma to other persons within the victim’s broader family and they must be met with a penalty which clearly signals to the community as a whole that killings of this type will not be tolerated by the Court.
At a personal level, I am satisfied that you have a substantial capacity for self‑deception and self‑justification. As a result you must be required to confront the serious consequences of what you have done as a deterrent to further offending by you.
In this context the fact that no motive has been proven for the killing does not assist you, because there is no apparent specific trigger for your actions or explanation by way of provocation or other psychological mechanism. On the evidence this was a cold-blooded killing.
I am also satisfied having regard to this fact that your sentence must reflect an ongoing need to protect the community.
This said, as I have indicated, I accept that you have personal characteristics which will make incarceration weigh on you more heavily than it would on a person of normal health.
I also accept that you have applied yourself and behaved well in prison.
Nevertheless I must sentence you for what I am satisfied beyond reasonable doubt was the premeditated murder of Ms Liang and take into account all the associated circumstances including the subsequent protracted concealment and consequent partial destruction of her body.
I must also take into account that the victim you murdered was well‑known to you to be the loving mother of a young daughter and the supportive daughter of both her parents. You killed her in circumstances when you knew that her death would cause great ongoing suffering to others.
Mr Chalmers I sentence you to 22 years imprisonment for the murder of Shirley Liang. I fix a minimum non‑parole period of 18 years. I declare pursuant to s 18(4) of the Sentencing Act 1991 that you have served 1208 days (including today) in custody.
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