R v Chang - [2003] VSC 499

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1452 of 2000

THE QUEEN

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:

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.

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.

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.

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…

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 R v Chang

Details

AGLC: R v Chang [2003] VSC 499
Case: [2003] VSC 499
Decision Date: 19 December 2003

CaseChat Overview and Summary

The case of R v Chang involved the defendant, Chang, who was convicted of manslaughter. The appeal focused on the sentencing imposed by the original court, which was contested by both the prosecution and the defence. The case was heard in the Supreme Court of Victoria, which was required to review the appropriateness of the initial sentence given the circumstances of the case.

The central legal issues before the court involved the correct application of sentencing principles in cases where the precise acts causing death are unascertainable and where there was no clear motive for the violence. The defence argued that the original sentence was excessive, while the prosecution maintained that the sentence was appropriate given the nature of the crime. The court had to consider the principles of sentencing for manslaughter, the circumstances of the case, and the necessity for any adjustments to the sentence.

The court reviewed the original sentence and determined that while the acts leading to the death were unclear and there was no evident motive, the violence involved warranted a significant custodial sentence. The court considered the length of pre-sentence detention and the impact on Chang. It was determined that the original sentence was too lenient, and the court imposed a new sentence of imprisonment for five years and six months, with a non-parole period of three years and six months. This new sentence was deemed more reflective of the seriousness of the offence and the need for deterrence and rehabilitation.

In conclusion, the court ordered that Chang be imprisoned for a total of five years and six months, with a non-parole period of three years and six months, to adequately reflect the gravity of the offence and to ensure public safety.

Orders