Director of Public Prosecutions v Chang
[2019] VCC 271
•12 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00784
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GABRIEL CHANG |
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JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2019 | |
DATE OF SENTENCE: | 12 March 2019 | |
CASE MAY BE CITED AS: | DPP v CHANG | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 271 | |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sexual Offences
Catchwords: Aggravated burglary – Intentionally causing injury – Threatening to commit a sexual offence
Legislation Cited:
Cases Cited:R v Chang [2001] VSC 78 – R v Chang [2003] VSCA 149 – R v Chang [2003] VSC 499
Sentence: TES: 8 years 6 months’ imprisonment with a minimum of 6 years’ 6months’ before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Lee for plea Ms J. Verkade for sentence | OPP |
| For the Accused | Mr J. Van Arkadie | VLA |
HER HONOUR:
1 At the outset, I advise those listening that the law prohibits the publication of any matter likely to lead to the identification of a victim in a sexual offences case[1]. A pseudonym will be used for the name of the victim in the published reasons.
[1] Section 4 Judicial Proceedings Reports Act
2 Gabriel Chang, you have pleaded guilty to a charge of aggravated burglary, which has a maximum sentence of 25 years’ imprisonment; to a charge of intentionally causing injury, which has a maximum sentence of 10 years’ imprisonment; and to a charge of threatening to commit a sexual offence, which has a maximum sentence of 5 years’ imprisonment.
3 I sentence you on the basis of the prosecution opening[2] which is an agreed summary. I will briefly outline your offending.
[2] Exhibit A
4 At some time on the morning of 22 November 2017, you entered the house of a neighbour, armed with a metal pole and with the intention of committing an assault (Charge 1 - aggravated burglary). Your neighbour, Ms Leith[3], was not home at the time you broke into her house, she having stayed overnight with a friend. In her absence, you ransacked the house, overturning furniture, leaving drawers open and clothes strewn around.
[3] A pseudonym
5 Ms Leith came home at about 9.30am and as soon as she entered the front door, you attacked her with the pole. You hit her many, many times - on the arms, legs, fingers and head, causing her to scream in pain. Then, she realised it was you. She asked you what you were doing, and told you to stop, but you yelled at her to get in and close the door. You advanced on her, still hitting her with the pole, until she was backed up against a wall. As she was trying to get away from the blows you were raining down on her, she hit the back of her head on a corner which caused a large cut (combination of injuries[4], charge 2 – intentionally causing injury) .
[4] See paragraph 21, Prosecution Opening, Exhibit A
6 You shut the front door and ordered Ms Leith to go to the bedroom towards the rear of the house. Ms Leith was crying uncontrollably and terrified, and so did as you ordered. When she noticed the ransacked state of her house, she stopped walking and you hit her again with the pole. As a result of this force, she continued on to the bedroom where she submitted to your demand for her to get on the bed, out of fear of what you would do if she did not.
7 You ordered her to take off her top and bra, and when she refused, first you struck her to the face with your hand, and then you threatened her, saying “Take off your top and bra or I’ll fucking rape you” (Charge 3 – threat to commit a sexual offence). Completely terrified and believing your threat, she began complying with your demand, but you grabbed hold of the front of her bra, ripping it off and leaving her half naked.
8 At some point, you noticed the blood from the cut on her head, and threw her a tea towel to hold against the wound. Although still terrified, Ms Leith began talking to you in an effort to calm you down, and incredibly, she kept this up over the course of an hour, managing to calm you, and even to coax you back to the lounge room. She was then able to get dressed, and although you initially told her she could not leave, she eventually managed to persuade you to allow her to leave on the pretext of having a medical appointment. She left you sitting in her lounge. I note that during this time, you were crying.
9 Ms Leith reported you to police, and later that day, you were arrested at your home, next door. In your interview with police, you falsely claimed that you had been in the city with a friend that morning, and therefore had not committed the offences.
10 Ms Leith was treated in hospital for her injuries, which included significant bruising to her arms and legs as well as the large gash to the back of her head. Apart from the physical injuries you caused, which she said healed over 3 - 6 months, she has also suffered considerable psychological harm as a result of your crimes against her.
11 In her impact statement[5], made 14 months after the events, Ms Leith indicated that she is still unable to feel safe in her own home or garden, and always checks the house and garden carefully before entering the house; that even with her brother moving in with her in an attempt to make her feel safer, she gets a fright if she is caught by surprise seeing him in the house; that she is hyper vigilant to people and sounds; that she was unable to sleep at all for the first month after the crimes you committed against her, and continues to have disrupted sleep with nightmares; that she finds it difficult to be touched, even by members of her family; and that she has suffered significant mental anguish, sadly making numerous attempts at suicide. While Ms Leith had mental health issues before your attack on her, she says that these were managed and, indeed, were improving at the time. I accept that, as a result of your crimes, she has been thrown backwards in her progress.
[5] Exhibit B
12 Even without Ms Leith’s impact statement, I would have had no doubt that a serious attack of this nature would cause significant suffering. But in her own words, which she found difficult to write, Ms Leith has shown me in detail that the impact on her has been particularly severe, and I take that impact very much into account in deciding the appropriate sentence. Without her bravery in persisting with that statement, even though difficult to do, I would not have had that important information.
13 I want to say something directly to Ms Leith. I acknowledge your considerable bravery in calming Mr Chang down, whilst sitting half-naked in your ransacked house, presumably while Mr Chang still had the weapon to hand. I also acknowledge your continued courage in reporting the crimes to police, in the difficult process of making your statement and your victim impact statement, and in doing what you can to move beyond the effects of that day. I wish you well in battling these issues, and I hope for a brighter future for you, with this case finished for you after today.
14 Turning back to you, Mr Chang, there are a number of features that make your crimes serious examples of those types of offences:
· First, you entered a private home armed with a weapon and proceeded to use it;
· Next, you attacked a vulnerable woman in her own home, where she was entitled to feel safe;
· Next, I am satisfied to the requisite degree that you took advantage of your knowledge that she lived alone and did not like others being in her house, which you knew[6] because the two of you had been in a neighbourly relationship for about a year;
[6] See Record of Interview, Depositions pp 148, 152
· Next, the attack was prolonged;
· Next, the sexual threat was made following violent acts and accompanied by a further act of violence and was itself, of course, an act of violence;
· Next, the sexual threat was made in the context of your demand that she go to a bedroom, and get onto a bed;
· Next, you remained in the premises for an extended period after the violence subsided, and I am satisfied to the requisite degree that even though you were no longer engaging in the violent and threatening behaviour, your presence prolonged the trauma for Ms Leith;
· Next, your offending is made more serious by the fact that you were on a community correction order at the time;
· And lastly, the severe impact on Ms Leith, as I have already mentioned.
15 Your moral culpability for these crimes is high. It was a cowardly attack for no reason. I do not accept that any motive suggested in the materials is a valid reason, and certainly there is no excuse for your violent criminality.
16 I turn now to the matters that I must take into account in your favour, in order to reach the appropriate sentence, as required by law.
17 The first of these matters is your plea of guilty, which you expressed an intention to do on the first day of your contested committal. You are entitled to have the plea of guilty taken into account in your favour and I do so. Your plea has saved the community the time and cost of a trial and, importantly in cases involving physical and sexual assaults, you have saved your victim Ms Leith from the need to give evidence at trial.
18 However, while your indication to plead guilty made at the committal stage is to be considered as an early indication in terms of a case going to trial, Ms Leith would have been expecting to give evidence right up until that day, because the case was listed for a contested committal, and so she was not saved from that stress until the day of the hearing.
19 Balancing these various considerations, while the sentence I will impose is less than would have been imposed if you had been found guilty after a trial, I have decided that your plea is an indication of only limited remorse on your part. I say ‘limited’ for the following reasons: because it is clear that there would have been little choice for you but to plead guilty in the circumstances of you being known to your victim; because of your initial false claim to be elsewhere; and because of the timing of the plea indication. I will return to the question of remorse when I consider your prospects for rehabilitation.
20 I have been told something of your personal history and circumstances and I take these into account. You are now aged 50 and were 49 at the time of the offences. Your parents moved from China to Chile, where you were born. Your family left Chile during the Pinochet regime and came to Australia in 1974. You have a younger brother and sister, and they, together with your mother, provide support to you, including visiting you in gaol. This support is vital to your prospects for rehabilitation. Your father passed away in 2015.
21 You were educated to Year 11, after which your father, who worked for V/Line, assisted you to find a job as a railway labourer. After two years you became a painter, and worked in that trade for eight years, obtaining trade qualifications. You then worked as a truck driver for over a decade, but a knee injury from your school years eventually made this occupation too difficult. For 2 - 3 years before, and at the time of, the offending, you were on unemployment benefits, but exempt from looking for work as you were on a public hospital waiting list for knee surgery. Because you went into custody on your arrest, you have not yet had that surgery, and are still in pain, which is managed by medication.
22
You have been in a number of intimate relationships. You have an adult son from a relationship that lasted about 5 years; he was about three when you and his mother separated, but you still have some telephone contact with him. You were then in a relationship for about 20 years from which you have an adult daughter. That relationship ended about 5 years ago, and you have not spoken to your daughter for about three years, despite your efforts. Your former partner died a few weeks before these offences. You were unable to attend the funeral because you were in hospital for asthma related problems. You have been in your current relationship since 2015, and together you were neighbours of
Ms Leith in 2017. Your partner also remains supportive of you.
23 Next, I take into account your criminal history. Your first conviction was at age 18, in 1986 for driving and dishonesty offences. You then remained out of trouble until you were aged about 30, when you killed a woman in November 1999. You were initially found guilty of murder, but on a re-trial following a successful appeal, you were found guilty of manslaughter and sentenced to 5 years 6 months’ imprisonment. There were five other offences associated with the killing to which you had originally pleaded guilty and were sentenced, involving dishonesty (theft and burglary), trafficking cannabis, and recklessly causing injury.
24
Some years after your release from that prison sentence, you committed further drug and burglary offences and in 2015, received a community correction order. You breached this order, and in April 2017, the order was confirmed for 12 months from that date. As I said earlier, you committed the offences against
Ms Leith while on this order, thereby breaching it for the second time.
25 You told Ms Lofthouse[7], a neuropsychologist who provided a report to the court, that you began cannabis use at age 17, but did not use cannabis between the ages of 30 and 45. I note the beginning of this period coincides with you going into custody for the killing at age 30. You told Ms Lofthouse you began using methylamphetamine about the same time as you resumed cannabis use, 5 years ago, and commenced fortnightly use until taken into custody for the offences against Ms Leith. This is different to what you reported to Mr Cummins[8], the psychologist who assessed you for the sentence I am about to impose, whom you told you were smoking daily, up to 3-4 points of methylamphetamine.
[7] Exhibit 3
[8] Exhibit 2
26
Ms Lofthouse assessed you to see if you had an acquired brain injury, as recommended by Mr Cummins, due to your report to him that you fell from a cliff in 1999. Ms Lofthouse found your test results did not indicate you had sustained a moderate or severe brain injury. The mild impairment that did show up she considered could be a normal variance, or possibly a result of your reported drug use, or possibly from the cliff fall. She noted that the fall resulted in a broken wrist which was the focus of your hospitalisation at the time, with no medical report at that time relevant to your brain function. Neither she nor
Mr Cummins refer in their reports to the fact that your fall from a cliff happened in the course of your escape from police after you were found parked just off the Great Ocean Road about to bury the body of the woman you had killed. It seems likely that you did not tell them, or they would have noted it.
27
Ms Lofthouse was of the opinion that your mild intellectual deficits would not prevent you from undertaking rehabilitation programs, which she considered necessary for you to become drug-free, but she thought those deficits were unlikely to be a factor in your offending against Ms Leith. You reported to
Ms Lofthouse suffering from depression and anxiety over the last 10 years, which you stated were related to the breakup of your (second) long term relationship, the estrangement from your daughter of that relationship, the death of your father, and loss of employment. Ms Lofthouse thought your reported chronic drug use, against a background of the psychological symptoms you also reported, played a part in destabilising your behaviour and may have been a significant contributing factor to the offending.
28 You told Mr Cummins that you were using a lot of ‘ice’ (methylamphetamine) at the time of the offences against Ms Leith, had a vague recollection of drinking in your garage with your partner, and falling asleep on the couch there, but “no recall of actually going into [your neighbour’s] place and doing all of this”. You also told Ms Lofthouse that you did not remember the events due to your drug use.
29 By contrast, you told the police in your interview held on the same evening of the offences that you had not had any drugs that morning, and when asked if it could be that you had taken something and merely not remembered the event, your response was, “No, I think I could remember something like that”[9]. This comment was made at the end of an interview where you had given a long and involved, but completely false, account of where you were between 8 and 11am, when the offences were committed.
[9] Depositions p171
30 Mr Cummins assessed your risk of re-offending in a sexual or violent way, using the tools available to him as a psychologist. He assessed you as being a moderate risk of violent re-offending, which he said indicated it is appropriate that you complete a further anger management program, you having told him that you had undertaken 2 - 3 months of a violence program during your parole period of the manslaughter sentence.
31 You reported to both Mr Cummins and Ms Lofthouse that you have never undertaken any drug rehabilitation treatment. I find this somewhat surprising, given that you have received a community correction order on two occasions for possession of methylamphetamine, following your earlier conviction for trafficking cannabis, but as the Criminal History filed with the court refers only to a condition to undertake unpaid community work, this seems accurate.
32 It is not clear from Mr Cummins’ report what part your self-report of the circumstances of your conviction for manslaughter played in his assessment for your risk of future violence. I was referred to that case by your counsel, and I have read the original sentencing remarks for murder[10], the Court of Appeal judgment overturning that conviction[11], and the subsequent sentence for manslaughter[12]. The version you gave to Mr Cummins was not a version referred to in any of those decisions. Both sentencing judges stated they were unable to rely on anything you said about the circumstances of the killing, due to the number of lies you admitted you had told about it.
[10]R v Chang [2001] VSC 78
[11]R v Chang [2003] VSCA 149
[12]R v Chang [2003] VSC 499
33
As a result of the uncertainty surrounding all your reports about the killing, including to Mr Cummins, and the uncertainly as to what part your report to him played in his assessment, I have little regard to the version you gave to
Mr Cummins in reaching my own assessment of your risk of violent re-offending, as part of my decision-making.
34
Mr Cummins did give consideration to the possibility that you suffer from a disorder known as Intermittent Explosive Disorder, but found that on the basis of your comments to him at interview, you did not meet the necessary criteria for that diagnosis to be made. I note that he does not refer to your conviction for manslaughter in considering whether you have this disorder, nor refer to it in his assessment for risk of further violent offending. However, as
Mr Cummins was not called to give evidence, I do not make any findings adverse to you on this basis.
35 Mr Cummins found on the basis of your comments to him that you remained convinced that you had behaved in the manner you did in committing these offences as a result of being intoxicated on methylamphetamine, and on that basis, he thought you attracted a diagnosis of Stimulant Use Disorder.
36 I accept that you have a history of drug use involving both cannabis and methylamphetamine use, and on the face of it, your report of lack of memory of the day you committed the offences supports methylamphetamine use by you, and thus Mr Cummins’ opinion that your use of this drug is a risk factor, seem reasonable conclusions.
37 However, you told police at interview that you did not use drugs that day. Because of your different versions, I am unable to reach a view about the role drug use played in your offending, and what role drug use has in my assessment of your risk for future violent offending. Having said that, I do acknowledge that, whatever your drug use leading up to or at the time of the offending, you have provided evidence of clear urine screens[13] when tested in custody - once in February 2018, twice in May 2018, and three times in June 2018.
[13] Exhibit 4
38 With respect to your risk of sexual re-offending, Mr Cummins assessed you as ‘at least’ a low-moderate risk, he thought most probably low, which he based on the fact that you had not carried through your threat to commit a sexual offence although you had the opportunity to do so.
39 Turning to my own assessment of your risk of reoffending, in summary, you have a serious previous conviction for violence, and two previous convictions for burglary. You have not committed a sex offence before this. I must consider the question of the protection of the community from you and bear in mind the likelihood of your re-offending. In all the circumstances, I consider you are likely to commit further violence offences, but less likely to commit another sexual offence.
40 I find your prospects for rehabilitation are guarded. Your prospects are likely to be enhanced if you undertake further treatment for your violent tendencies, including a thorough exploration of the potential reasons for your violent offending. Despite my inability to ascertain the role drug use played in these offences, because I have found that you do have a history of drug use, your prospects for rehabilitation will also be enhanced by assessment and treatment for this use.
41 Assessment for the need for a sex offender program should also be considered by those managing your time in custody and your eventual release into the community.
42 Lastly, in assessing your prospects for rehabilitation, I return to the question of your remorse. I received a letter written by you[14] which was referred to on the plea, and received by consent of the prosecution after the plea, along with the urine screen results. The letter reads as follows:
[14] Exhibit 5
"Your Honour, I have taken the time to write this letter to express the deep feelings of remorse for my crimes and also to my victim. There is not one day that I don't regret my actions. I wish I could take back what I have done but unfortunately I can't. I am deeply sorry for what I have done and the pain I have caused to the victim and her family and I truly mean that from the bottom of my heart. I understand that talk is cheap and that actions speak louder than words. I will never act in that manner again and I accept the consequences for my actions.
"I hope that one day my victim can forgive me for what I have done and that I can forgive myself for what I have put her and my family through. I pray that what I have done has not had a significant impact on the victim's future or day to day life. I am looking forward to proving myself in the future and becoming a functioning member of the community. Thank you kindly for giving me the opportunity to read this letter in your court. Once again, I am so sorry for my actions and the pain I have caused. Yours faithfully, Gabriel Chang."
43 There are three things to say about that letter: first, you heard read out in court on the plea the severe impact your crimes have had on Ms Leith, and if you did not know before, you know now that what you have done has had a significant impact on her future and day to day life; second, if you are truly serious about proving yourself in future, then that will be to your benefit, and that of the community, who would then be protected from further violence by you; third, I acknowledge the letter reflects remorse for your crimes.
44 Overall, taking all these matters into account, I find you do show some remorse, but it is qualified in all the circumstances, which I have attempted to outline.
45 In fixing the appropriate sentence, I accept the need to provide some chance for you to demonstrate your commitment to your rehabilitation. You are not at the point where there are no prospects for your rehabilitation, but it is up to you to prove yourself.
46 As well as the matters personal to you to which I have referred, including the question of rehabilitation, I must also take into account deterrence. By my sentence, I must seek to deter others from committing the serious crime of aggravated burglary and other violent offences causing injury, as well as sexual offences. Because of your criminal history and the other matters I have referred to at length, I also consider that my sentence must personally deter you from re-offending.
47
You are convicted and sentenced as follows. I do not require you to stand,
Mr Chang, as you are on the video link:
48 On charge 1: aggravated burglary – 7 years’ imprisonment;
49 On charge 2: intentionally causing injury – 3 years’ imprisonment;
50 On charge 3: threat to commit a sexual offence – 18 months’ imprisonment.
51 The sentence on charge 1 is the base sentence. I direct that twelve months of the sentence imposed on charge 2 and six months of the sentence imposed on charge 3 be served cumulatively on the sentence imposed on charge 1 and on each other. That makes a total effective sentence of 8 years 6 months’ imprisonment.
52 I direct that you serve 6 years 6 months before becoming eligible for parole.
53 I declare that the period of time you have already spent in custody is 415 days not including today and these are to be deducted administratively from your sentence.
54 If you had not pleaded guilty, but had been found guilty of all charges after a trial, the sentence I would have imposed is 11 years’ imprisonment with a minimum of 9 years.
55 I have signed the disposal order and that can be handed down.
56 For completeness, I will mark as exhibits the material received after the plea. The urine screen tests will be Exhibit 4 and the letter from Mr Chang will be Exhibit 5.
57 EXHIBIT 4 - Urine screen tests.
58 EXHIBIT 5 - Letter from Mr Chang.
59 Yes, there are no further orders required?
60 MS VERKADE: No, Your Honour.
61 HER HONOUR: Yes, well in the circumstances, Mr Van Arkadie, you cannot go and see Mr Chang but no doubt you will be in touch with him in due course.
62 MR VAN ARKADIE: Yes, Your Honour, I've indicated to him before Your Honour stepped on the Bench that I would be conferring with him later this week.
63 HER HONOUR: Well, I thank everyone for their attendance in court and assistance of counsel and particularly, Ms Leith, in the difficult circumstances of her situation.
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