R v Chang

[2003] VSC 499

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1452 of 2000

THE QUEEN

v

GABRIEL OMAR CHANG

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JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 - 9 December 2003
DATE OF SENTENCE:	19 December 2003
CASE MAY BE CITED AS:	R v Gabriel Omar Chang
MEDIUM NEUTRAL CITATION:	[2003] VSC 499

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Criminal Law - Sentencing - Manslaughter - Precise acts causing death unascertainable - no motive - violence - Re-sentencing considerations - Pre-sentence detention declaration supplemented - Prison for 5 years 6 months - Non-parole period 3 years 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Horgan SC	Office of Public Prosecutions
For the Accused	Mr G. Thomas SC with Ms G. Tsirmbas	Falcone & Adams

HIS HONOUR:

1. Gabriel Omar Chang.  On 8 November 1999 at Melton, you killed Dianne Psaila.  Last week, on 9 December, a jury empanelled to try you on a charge of her murder, found you guilty of manslaughter.  I must sentence you for that manslaughter. 

1. Before I turn to the circumstances of the death of Dianne Psaila, I will shortly summarise the position as to four special difficulties affecting your sentence.  One, to which I will return, relates to the circumstances of the killing.  Another concerns the number of days to be declared by way of pre-sentence detention.  The third concerns the approach to be adopted by me as to cumulation.  The fourth concerns the need for me to expressly differentiate between two aspects of your conduct after the killing.  As to the fourth, you must not be punished twice for the aggravating features of the manslaughter, and for the offences for which you have been sentenced earlier by Justice Vincent.  To that earlier sentencing I now turn.

1. In February 2001, after a trial before Justice Vincent and a jury, the jury found you guilty of the murder of Dianne Psaila.  In April 2001, Justice Vincent sentenced you not only as to the murder but also as to five offences linked to the killing, as to which you had pleaded guilty.  The sentence was an aggregate sentence.  The sentence was carefully structured by Justice Vincent.  For the murder, a term of 18 years was imposed.  For other offences, terms of 3 to 9 months were imposed.  Orders for cumulation were made. The effective head sentence was 18 years and 6 months.  Pre-sentence detention was declared at 92 days. A non-parole period of 13 years and 6 months was fixed.

1. In September 2003, the Court of Appeal ordered a new trial.  The sentence for murder could no longer stand.  The other sentences stood.  The precise structure of the sentence imposed by Justice Vincent could no longer be seen to apply.  Because it had been carefully structured, parts remained unaffected.  Included in what remained unaffected were the sentences imposed as to the other five offences.  As to them, there was a sentence of 9 months prison on count 4, and there was cumulation of 3 months on count 3.  Statutory provisions made the sentences otherwise concurrent.  That sentence, stripped necessarily of the murder sentence, and the non-parole period, provided for a total of 12 months imprisonment to be served.  Despite the submissions of Mr Thomas to the contrary, I am satisfied that that term of 12 months in prison must be treated as having been served between April 2001 and April 2002.  The declaration that I am about to make as to presentence detention for the manslaughter sentence that I am about to impose cannot include that period of 12 months. 

1. The fact that I have not included in the declaration the 12 months that you have served does not mean that I should or will ignore it.  There is a potential for injustice which I must and will address.  The sentence of Justice Vincent provided for a period of cumulation of 6 months on the murder sentence as to the other five offences.  Because of the setting aside of the sentence for murder, you have now actually served 12 months in prison as to those five offences.  There is not a precisely definable statutory right to be given a credit for the extra 6 months.  But I propose to apply principles articulated in the Court of Appeal decision in Stares.  A credit will thereby effectively be provided.

1. I turn back now to the circumstances of your killing Dianne Psaila.  She and you had been friends since school days.  She came to your Melton home on 8 November 1999.  It was not the first time she had been there.  There was a particular reason for her going there that day.  It related to her dropping off with you a car sunroof panel belonging to her father.  There may have been another or other reasons.  There are difficulties associated with my making precise findings as to that fact, and as to many other facts.  The main difficulty stems from my having no confidence that your version of events on that day, and during the days that followed, can be believed.  That position arises in part because of your later acknowledgements that you chose to lie as to many matters.  It arises too because the forensic evidence is inconsistent with your version of events.

1. I do not accept that the death of Dianne Psaila happened as described by you.  That said, I cannot say in any detail how it happened.  The difficulty is the greater given that there was no apparent motive for you to act violently towards her, and that the autopsy did not lead to a precise finding as to the cause of death.  I am well satisfied that there was a violent attack by you on her.  You caused her death by an act that was violent, that was unlawful and that was dangerous.  However, at the time, your state of mind was not such that you intended to kill her or to inflict really serious injury.  The sentence that I will impose reflects a rejection of much of your version of events.  Acceptance of that version would have led to a lower sentence.  On the other hand, given my inability to more precisely identify the nature and level of the violence, a sentence towards the higher end of the range is also not appropriate.

1. After you had killed Dianne Psaila, you dealt with her body in ways that warrant my treating them as aggravating circumstances.  In this regard, I  refer to matters distinct from those that led to your pleading guilty to the separate offences for which you have been sentenced by Justice Vincent.  Those offences relate to the theft of her car, the entering of her father’s home to steal money, the theft of that money, the trafficking in cannabis and the injuring of a police officer by striking him from behind with a fire extinguisher.  The aggravating matters consisted of a series of separate callous acts, to which you have admitted.  They included: removing Dianne’s black top; wrapping the black top tightly around her head; striking her to the head with a meat tenderiser; bundling her into the boot of her car; deceiving her father and brother with calculated indications of concern as to her location; leaving her in the boot for some days; and preparing to subject the body to chemical treatment in a shallow grave.

1. I have read the transcript of the submissions put to Justice Vincent in March 2001, and the evidence given before him by Jurgen Mares, and the exhibits then tendered, including the report of the psychologist, Bob Ives.

1. I have also read, and with attention to the detail the victim impact statements of Dianne Psaila’s mother and father, of her brothers and of her sister-in-law.  With the approval, but noting the concerns of Mr Thomas, I read other like materials less formally prepared. My reading them will have done you no harm.  It will have done the cause of community acceptance of the sentencing process a little good.  The statements and other materials convey movingly the pain, and the deep and continuing sense of loss, that those close to Dianne have suffered through her death.

1. I turn to your personal background.  You are now 35 years of age, having been born in Chile in April 1968.  The story of your family’s movements from China to Chile to Australia is detailed in the report of Bob Ives.  It is clear that there is a strong sense of family, and that the family is law-abiding and hard-working.  The prospects of rehabilitation can only be treated as good.  You have a strongly supportive family.  You have support from Veronica Pum, the mother of your daughter, Cassandra.  You have support from the family of the mother of your son, Beau.  Save during that week in November 1999, you have acted responsibly towards your children.  I take account of several other mitigating factors.  You had no convictions prior to the events of November 1999.  You have a good work record.  You have commendations and support from others like Jurgen Mares.  Since being in prison you have done appropriate courses.  You have taken on the added responsibilities of a prisoner listener.  I also accept that you have shown remorse for the death of Dianne Psaila.

1. I have signed the orders as to the disposal of certain property and as to the taking of a body fluid sample.  I sentence you to prison for a period of 5 years and 6 months for the manslaughter of Dianne Psaila.  I fix a non-parole period of 3 years and 6 months.  I expressly note that, in line with the decision in Stares that I earlier referred to, I have made an appropriate reduction in both periods to allow for my not being in a position to make an order as to cumulation in the form made by Justice Vincent.  I make a declaration as to pre-sentence detention of 710 days to today, 19 December 2003. I direct that that declaration be recorded.