Applicant v Respondent

**2 Selina Lin ('Selina') was born in the Fujian province of China on 10 September 1990. She came to Australia, on her own in 2007, in order to complete her secondary school education. The applicant was then working in Taiwan, in order to earn sufficient money to pay Selina's school fees.

3 After finishing school, Selina commenced an economics course at university. At that time she met the respondent's son, Rong Ping ('Peter'), and they married in February 2010. Their son, Alfred, was born on 21 May 2010.

4 The respondent also comes from the Fujian province. She was born in July 1963. In addition to Peter, she also has two daughters. They both migrated to Australia from China in about 2002, but the respondent remained in China with her husband. She subsequently came to Australia in January 2010 in order to look after Selina during her pregnancy.

5 Initially, the respondent had a close relationship with Selina. However, their relationship deteriorated, particularly after the birth of Alfred. There were differences between Selina and the respondent in relation to their attitudes to issues of culture and tradition. By the time of Selina's death, the relationship was very strained. Selina felt overwhelmed by the cultural expectations which the respondent, and her husband Peter, had of her, and particularly the requirement that she be deferential to the respondent. On the other hand, the respondent, who was traditional in her outlook, had difficulties understanding, and respecting, the need that Selina felt to have a measure of independence from her mother in law.

6 In 2012, Selina, together with Peter and Alfred, were living in premises, owned by the respondent, in Bundoora. On 3 May 2012, the respondent attended at those premises in order to visit Alfred. She arrived there at about midday. During the afternoon, an argument developed between the respondent and Selina, apparently relating to the manner in which Selina was proposing to bathe Alfred. In the course of that argument, the respondent took hold of a hammer, and struck more than 30 blows with it to Selina's face and head. She also inflicted a number of blows to Selina's arms and hands while Selina was trying to defend herself. As a result of the beating, Selina died. The pathologist, who subsequently conducted the post-mortem, concluded that the cause of death was blunt force injuries to the head.

7 Almost immediately after killing Selina, the respondent placed her body in a zip up nylon suitcase, and then lifted the bag, containing Selina's body, into a wheelie bin belonging to a neighbour. Initially, she left the bin in its position outside the neighbour's house. However, during the night, she returned to the premises, took possession of the bin, and pushed it to the Darebin Creek. There she tipped the bag, containing Selina's body, down a steep bank into the creek.

8 On the next day, the respondent told her daughter what had occurred. She claimed that she had killed Selina in self-defence. Ultimately, a decision was made that the respondent should surrender herself to the police, which she did. In a highly emotional record of interview, the respondent claimed that she had hit Selina, in self-defence, and also to protect Alfred. At the trial, the respondent relied on a defence of self-defence. By its verdict, the jury rejected that defence, and was satisfied, beyond reasonable doubt that, in striking the fatal blows that caused the death of Selina, the respondent did not act under a belief that her actions were necessary to prevent death or serious injury to herself or Alfred.**

**9 The evidence, on behalf of the applicant, consists of three affidavits that were sworn by the applicant. Those affidavits have as exhibits the applicant's victim impact statement, together with a copy of a psychological report provided by Khai Lan Wong, a registered psychologist.

10 After the death of Selina, the applicant came to Australia in order to care for Alfred. Her son-in-law, Peter, has also been living with her.

11 The applicant describes how she is still grieving for the loss of her daughter. In her victim impact statement, which is exhibited to her first affidavit, she described how she raised Selina. She said 'ever since her birth, she [Selina] has been my whole life'. The applicant had been concerned when she learnt that there were difficulties between Selina and the respondent. In 2011, Selina returned to China because of what she described as 'terrible abuse' by the respondent and other family members. However, she was subsequently persuaded to return to Australia by Peter. The applicant was heartbroken at her decision to do so, and she was greatly concerned for her daughter's welfare after her return to Australia.

12 In her victim impact statement, the applicant described her feelings after she learnt that her daughter had been killed by her mother in law (the respondent) as follows:**

Overcome with sadness and sorrow, I have been thinking of her every moment just as if she was still with me. Even today I'm still unwilling to believe that she is gone with the wind forever. Just like in a dream, I always seem to hear her calling me, but all the expectations and hopes of a mother have been terribly shattered.

**13 The applicant has had 17 sessions of counselling with a psychologist, Ms Khai Lan Wong. In her report, Ms Wong stated that the focus of the therapy, that she has provided to Ms Cheng, has been to enable her to express her grief and bereavement feelings in a manner acceptable to her cultural beliefs. The applicant has not had an appropriate and safe space in which to express those feelings and to cope with her grief. On psychological testing, the applicant had 'extremely severe scores' for anxiety, depression and stress. The Beck Depression Inventory indicated that she had severe depression.

14 The symptoms reported by the applicant included a depressed mood for most of the day, markedly diminished interest and pleasure in activities, insomnia, fatigue, and feelings of worthlessness and guilt. In particular, Ms Wong noted that the applicant had persistent feelings of sadness and depression, initial intense emotional reactions and anxiety, anger, insomnia, loss of interest in activities, and guilt feelings concerning her ambivalent feelings about her son-in law. Her bereavement symptoms included: reliving images of her daughter walking around her; frequent nightmares of rushing to cuddle her daughter; seeing images of the deceased in places that they had visited together in the past; frequent dreams; frequent memories of the past, particularly when Selina was a child; and memories of discussions in which Selina told her of abuse by the respondent and Selina's requests to her husband to support her.

15 Tests conducted by Ms Wong in the Chinese language indicated that the applicant was suffering significant levels of depression, and Ms Wong made a differential diagnosis of severe grief reaction, feelings of emptiness, loss and hopelessness. Based on her symptoms, and the testing, Ms Wong concluded that the applicant has a persistent complex bereavement disorder.

16 In her report, Ms Wong recommended that the applicant undergo a further 12 sessions of counselling of 90 minutes each. In respect of the applicant's prognosis, Mr Wong stated:**

Ms Cheng's current symptoms is suffering persistent complex bereavement and the symptoms she is experiencing is severe. It is not relevant to provide a definite prognosis, at this stage is poor as she is finding it hard to accept the loss. However based on my current observations of Ms Cheng's attitude, her kindness, tolerance, and willingness to help her son in law, and her keenness to solve her problems in life, and wish to act on changes to improve her poor physical and psychological health, including counselling focus on a non-pathological approach to bereavement but considerations for positive healing through strategies ... it is aimed at a good prognosis.

**17 The respondent appeared in person on the hearing of the application. She was assisted by an interpreter. At an earlier directions hearing, I had drawn to her attention the pro bono service provided by the Victorian Bar, however she did not avail herself of it.

18 The applicant was unable to attend the hearing of the application. However her counsel, Ms Ryan, had instructions to proceed in her absence, as it was not intended to supplement the affidavit material with any viva voce evidence. Ms Zhuang indicated that she did not wish to ask the applicant any questions in cross-examination.**

**19 Section 85B(1) of the Act provides that if a court finds a person guilty, or 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. Section 85B(2) provides that a compensation order may be made up (inter alia) of amounts for the pain and suffering experienced by the victim as a direct result of the offence, and for the expenses actually incurred, or reasonably likely to be incurred, by the victim for reasonable counselling services as a result of the offence. Section 85A defines 'injury' to include mental illness or disorder, or 'grief, distress or trauma or other significant adverse effect'.

20 Section 85H is relevant to the present application. It provides:**

(1) If a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.

(2) A court is not prevented from making a compensation order only because it has been unable to find out the financial circumstances of the offender.

**21 The principles, relating to the construction and application of s 85B, have been considered in a number of decisions of this Court, and need only be restated briefly.[3]

22 The requirement, in s 85B(1), that the applicant's injury be a 'direct' result of the offence, does not mean that there must not be any step between the cause (the offence) and the consequence. Nor does the adjective 'direct' require that the injury be immediate, proximate or obvious.[4]

23 In general, the principles that relate to an assessment of damages at common law are applicable to the assessment of compensation under s 85B of the Act.[5] However, the order that is made under s 85B is for compensation, and not for damages.[6] Unlike at common law, grief and trauma are compensable under s 85B.

24 The approach to the determination of compensation for 'grief or trauma', under s 85B, was discussed by Neave JA in DPP v Energy Brix Australia Corporation Pty Ltd[7] in the following terms:**

In my view the factors which should be taken into account in assessing damages for grief or trauma under section 85B include the following:

• The circumstances in which the death occurred;

• The effect on the applicant on hearing of the events causing loss;
• The closeness of the relationship between the person seeking compensation and the person who has been killed;

• The age of the person seeking compensation; and

• The extent of grief and psychological suffering experienced as a result of the loss.

25 Section 85H provides that a court may, in determining the amount, or method of payment, of the compensation, take into account the financial circumstances of the offender. That provision has been construed as reflecting a concern by parliament as to the potential adverse effect, on an offender's rehabilitation, of an award of compensation against the offender. Accordingly, if a court decides that compensation should be paid by an offender to a victim, in determining the amount, and method of payment, of the compensation, it is relevant to consider the prospects for the offender's rehabilitation, and the extent to which, if any, an award of compensation might adversely impact on the offender's rehabilitation.[8] However, that consideration does not necessarily require that the court moderate the amount of compensation awarded to cater for the offender's rehabilitation. It has been described as a 'relevant but not controlling consideration'.[9] As Bell J stated in R K v Mirik:[10]

Admitting the significance of these considerations, there are cases where the court could exercise its discretion to order compensation despite the offender's lack of means and the burden that payment of compensation would impose. In such cases, the interests of giving the victim just civil compensation will have priority over the interests of the offender in avoiding that result in criminal proceedings.

**26 I am well satisfied, on the affidavit evidence, that the applicant has suffered very significant grief and distress as a result of the death of her daughter, Selina Lin, and as a result of the traumatic circumstances in which that occurred.

27 Selina was the applicant's only child. From an early age, the applicant made a number of sacrifices on her behalf. The applicant and her husband worked hard to enable Selina to come to Melbourne to study in 2007. In 2008, the applicant travelled to Australia to help Selina change to a girls' senior middle school. In 2010, she also visited Australia to assist Selina to take care of Alfred when he was a two month old baby.

28 As I have stated, the circumstances of Selina's death must have been particularly traumatic for the applicant. When Selina returned to China in July 2011 with Alfred, due to the abuse of her by the respondent, the applicant was particularly concerned for her welfare. She tried to persuade Selina to remain in China, and to divorce her husband. In her victim impact statement, she said that she was heartbroken at Selina's decision to return to Australia. The applicant was in China when she heard that her daughter had been murdered by her mother-in-law, the respondent.

29 It would seem that the distressing circumstances of Selina's death were somewhat compounded by the difficulties attending her burial. Initially, in accordance with tradition, the applicant had wanted her daughter's ashes to remain in the house in which she was murdered, so that her spirit would be honoured in that place. However, because of the circumstances of her daughter's death, she was concerned that her daughter would not be left at peace in that situation. Ultimately, the issue was resolved by the applicant purchasing a burial place for her daughter.

30 In the above circumstances, it is not surprising that the applicant has experienced a severe grief reaction as a result of her daughter's death, and the circumstances in which it occurred. It is clear on the evidence that her grieving process has been intense, lengthy and unresolved. As she stated to the psychologist, she has not been able to find an appropriate space in which to work through the complex issues connected with her grief. She has the responsibility for the care of Alfred, and the pressure of raising him. She has conflicted feelings concerning her son-in-law, although her guilt feelings about her attitude to her son-in-law have been improved with counselling. Understandably she is apprehensive about her future and Alfred's future.

31 In those circumstances, I accept the diagnosis by Ms Wong that the applicant suffers from a persistent complex bereavement disorder. I am also satisfied that the applicant continues to experience recurrent major depressive episodes, and that the level of her depression is severe.

32 In terms of the future, I am satisfied, on the evidence of Ms Wong, that the prognosis, at this stage, is poor, notwithstanding that the counselling provided by Ms Wong is directed to a better outcome. On the balance of probabilities I am satisfied that the applicant will continue to experience significant grief and distress, and depression, for the foreseeable future.

33 Neither party put any evidence before me as to the financial circumstances of the respondent. As recorded in my sentencing remarks, the respondent owned the house at Bundoora in which Selina and her husband were residing at the time of Selina's death. Counsel for the applicant informed me that that house is the subject of a restraining order, presumably pursuant to s 15(1)(e) of the Confiscation Act 1997. Otherwise, I do not have any information as to the financial circumstances of the respondent. As the evidence on her plea reveals, the respondent does suffer from depression. I also note from the reasons for judgment of the Court of Appeal that, as a result of a change in legislation, the respondent will be deported to China at the conclusion of her sentence. While those matters are of concern, in the absence of appropriate evidence as to the respondent's financial means, I do not consider that they are sufficient to warrant any moderation of the compensation to be paid by the respondent.

34 In the circumstances, I am persuaded that it is appropriate to make a substantial order for compensation in favour of the applicant. As I stated, she has suffered, and will continue to suffer, significant grief and distress, and depression, as a result of the murder of her daughter at the hands of the respondent. She has lost her only child, to whom she was particularly devoted. It is understandable that, as a parent, her loss, and grief, will always be with her. In those circumstances, I propose to award compensation for pain and suffering pursuant to s 85B(1) of the Act to the applicant in the sum of $125,000. The applicant has been paid compensation in the sum of $15,000 under the Victims of Crime Assistance Act 1996. Pursuant to s 85I of the Sentencing Act, I am required to deduct that amount from the compensation to be awarded to the applicant.

35 Accordingly, and subject to any submissions from counsel as to the appropriate form of the order, I propose to order that the respondent, Huajiao Zhuang pay compensation to the applicant, Shui Ying Cheng, in the sum of $110,000.**

[1] DPP v Zhuang [2014] VSC 371.

[2] DPP v Zhuang [2015] VSCA 96.

[3] See, for example, R K v Mirik & Anor [2009] VSC 14; (2009) 21 VR 623 (Bell J); Stevens v Baxter [2009] VSC 257 (T Forrest J); Creamer v Creamer [2015] VSC 625 (Beale J); Zhu v Chalmers [2010] VSC 241, [12] (Osborn J); Tanner v Smart [2010] VSC 463, [25] (Lasry J).

[4] Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405, 410-411 [24]-[25] (Buchanan JA), 417 [56] (Nettle JA); R K v Mirik [2009] VSC 14; (2009) 21 VR 623, 655 [117] (Bell J).

[5] Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252, [51] (Williams J); Stevens v Baxter [2009] VSC 257, [5] (T Forrest J).

[6] Esso Australia Pty Ltd v Robertson [2005] VSCA 138, [29] (Warren CJ, Batt and Chernov JJA); Stevens v Baxter [2009] VSC 257, [5].

[7] [2006] VSCA 116; (2006) 14 VR 345, 356-7 [50].

[8] Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252, [50]; Shepherd v Kell [2013] VSC 24, [30]-[32]; R K v Mirik [2009] VSC 14; (2009) 21 VR 623, [39], [143]; Creamer v Creamer [2015] VSC 625, [20].

[9] Stevens v Baxter [2009] VSC 257, [5]; R K v Mirik [2009] VSC 14; (2009) 21 VR 623, [135]-[143]; Shepherd v Kell [2013] VSC 24, [30] (Lasry J).

[10] [2009] VSC 14; (2009) 21 VR 623, [138].