R v Chang

[2001] VSC 78

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1452 of 2000

THE QUEEN

v.

GABRIEL OMAR CHANG

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JUDGE:	VINCENT, J.
WHERE HELD:	MELBOURNE
DATE OF SENTENCE:	11 APRIL 2001
MEDIUM NEUTRAL CITATION:	[2001] VSC 78

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CATCHWORDS:      Murder – Theft – Burglary – Causing injury recklessly – Traffic in a drug of dependence – Circumstances of aggravation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. R. Elston	Office of Public Prosecutions
For the Accused	Mr. J. Smallwood	Victoria Legal Aid

HIS HONOUR:

1. Gabriel Omar Chang, the jury empaneled upon your trial has found you guilty of the murder, at Melton in the State of Victoria on 8 November 1999, of Dianne Leigh Psaila.  You have also pleaded guilty to the commission of the following offences set out in presentment No. M02579457.1: (a) the theft on the same date of a motor vehicle belonging to Dianne Leigh Psaila (count 1); (b) the entry of the home of the deceased's father at 3 William Street, St Albans with intent to steal (count 2); and the theft of money belonging to him (count 3); (c) the causing of injury to Michael Atkinson at Lorne in the State of Victoria on 12 November 1999 (count 4); (d) and the trafficking at Lorne, on 12 November 1999, in a drug of dependence, namely cannabis L (count 5).

1. It is now my responsibility to impose sentence upon you for each of these offences.  I observe in this context that you have no history of any prior involvement with the law, a consideration that must be taken into account in your favour.

1. The circumstances surrounding the commission of your offence have been canvassed at length during the course of the trial and need to be set out only in a relatively brief form at this stage.  Miss Psaila, whom you had known for many years, attended at your home at Melton on the day of her death for the purpose of delivering to you a section of motor car roof panel in order for you to be able to arrange for some matching paint colour to be obtained.  Apparently a sun roof was being fitted to a vehicle owned by the father of the deceased and you were able to assist with respect to the obtaining of matching paint as you were, at the time, employed by a large paint company.

1. Precisely what occurred on Miss Psaila's arrival cannot be determined from the evidence.  The version of events that you provided to the police, when interviewed, is patently unsatisfactory in a number of respects and in large measure must have been rejected by the jury.  What is clear is that the jury were satisfied beyond reasonable doubt that in the course of a violent assault perpetrated by you upon her, your victim sustained a very severe blow to the head that fractured her skull and caused her death.

1. In view (inter alia) of the duration and character of the relationship between Miss Psaila and yourself, which appears to have been one of friendship and long duration, I accept that there was no premeditation in your conduct.  It is reasonable to infer, I consider, that you acted in a spontaneous upsurge of emotion.  What precipitated this extremely violent response is, at this stage, unknown.  There are bases for speculation concerning the genesis of the situation of the confrontation in the evidence, but, as I indicated during the presentation of submissions, it would not be appropriate to have regard to them for sentencing purposes.  As your counsel remarked in the course of the plea made on your behalf:  "why on earth was there a violent assault upon her?"  his explanation is clearly not satisfactory and no other one ever seems to be forthcoming.  I consider that your counsel was probably correct in his interpretation of your stance as representing an inability to come to terms appropriately with the situation with which you were confronted.  I also accept his contention that whatever happened, it must have happened quickly.  However, the absence of a credible explanation or clear context for your engagement in an act of extreme violence creates a situation in which the court is unable to have regard to any ameliorating factors or considerations that may have been present and could possibly have mitigated your level of culpability in some way.

1. Following the death of Miss Psaila, you very quickly set about the tasks of attempting to divert suspicion from yourself and making good your escape from the situation.  Within a very short period of time, you contacted the brother of your victim and then her father, indicating to them that she had not attended at your home as arranged and inquiring as to their knowledge of her whereabouts.  You placed her body in the boot of a motor vehicle and arranged for the car to be kept in the garage of a friend.  You went to the home of the deceased's father and stole money from a cash box.  You set up or at least became involved in a marijuana trafficking transaction in order to obtain additional money to facilitate your escape.  In this context, it is to be noted that you had a quantity of marijuana in your possession when you were subsequently detected by an observant police member in the Lorne area.  You secured the attendance of a friend to obtain various items that were clearly purchased as part of your plan to conceal your victim's body.  Eventually you took her corpse to a location near the Great Ocean Road near Lorne where you intended to bury it and, possibly using the acid and lime that you had purchased, ensure that it was never discovered.  However, the presence of your victim's motor vehicle on a relatively secluded track leading off the highway was noted by Senior Constable Atkinson as he passed by.  He investigated and came upon a partially dug grave.  When you were located, you were found hiding in the undergrowth nearby.  You claimed to have been abducted and to be in fear of your life.  You appeared to the police member to be in an extremely distressed state and he assisted you back to the police vehicle to call for additional help.  While his back was turned, you attacked Senior Constable Atkinson with a fire extinguisher which you used to strike him and to spray foam into his eyes thus enabling you to escape into the bush.  You were arrested in the general vicinity on the following day.  Fortunately, Senior Constable Atkinson was not severely injured and I understand that he has made a complete recovery.

1. Mr Smallwood, on your behalf, has submitted that you were acting in a state of panic during the period following the death of Miss Psaila.  Whilst I have little doubt that you were very frightened by the possibility that your crime would be discovered, I do not consider that the term "panic" would be appropriate to describe your state of mind.  You were, in my view, concerned almost exclusively with self-preservation and the avoidance of any responsibility for what you had done and you directed considerable attention to this task.  Your conduct in stealing from the home of your victim's father and your decision to attempt to dispose of her body so that it would never be located are not only indicative of determination in this respect, but constitute circumstances of aggravation in the context of the present case.  Had you succeeded, the members of her family and others close to Dianne Psaila would possibly never have learned of her fate and perhaps believed that she had simply abandoned them after stealing her father's money.  I am confident that, at least, you intended that she would simply disappear.  This conduct reflects a degree of callousness on your part with respect to your immediate victim and a total disregard of the situation of those others.

1. The crime of murder which you committed is, as I have no doubt you understand, for practical purposes, the most serious known to our law.  Central to the proper functioning of any civilised community is the clear recognition of the inviolability of the life of every person who dwells in it or who is entitled to its protection.  In your case, the community, and the court through which it speaks, is confronted with the irrevocable reality that a young person has died at your hands, leaving behind her the continuing sense of loss and anguish evidenced in the victim impact statements filed in the court.

1. It is perhaps of value at this point to make some reference to the elements of the crime of murder of which you have been convicted.  There is a need to keep clearly in mind that the jury, through its verdict, has found that you acted without lawful justification or excuse in a conscious and voluntary fashion, and that when you struck Miss Psaila you intended to kill her or at least to cause her really serious physical injury.

1. The courts, through the sentences that they impose, must reflect the seriousness with which such conduct is viewed by the community that they represent.  Further, and in so far as is consistent with the proper application of other relevant sentencing principles, they must endeavour to deter those who may be inclined to act as you have done.

1. Of course, each offence and offender must be considered in the light cast by all of the circumstances relating to the offence and offender concerned.  Accordingly, I turn to your personal background.

1. I observe that you are now aged 31 years, having been born on 24 April 1968.  You came to Australia from Chile with your family, when you were about five years of age, as political refugees.  Your parents were hard-working, decent people who provided a stable and caring environment for you as they endeavoured to develop a new life for themselves and their family in this country.  It seems consistent with the results of a recent assessment of your level of intellectual functioning by an experienced forensic psychologist that, although you experienced some learning difficulties in your early years, otherwise they appear to have been stable and relatively happy.  You attended school until you left after completing six months of Year 11.  I need not set out your subsequent employment history in detail.  It is I think sufficient to state that you have worked in constant, although different, employments from leaving school until the time of your arrest. 

1. I have already adverted to the fact that you have no criminal history and accept that you have generally conducted yourself as a person of good character, although there were emerging from the evidence clearly some aspects of your lifestyle which appear to have been less creditable.

1. I accept that you have experienced deep regret for what you have done and have come to appreciate the profound consequences that your actions have produced to many people, including your own children in relation to whom you possess deep affection and a sense of responsibility for their welfare.

1. Against that background, I am of the view that your prospect for rehabilitation must be regarded as favourable.  In this context, I note that you have a strong and continuing level of family support.  I do not consider that the protection of the public or specific deterrence possess significance as sentencing considerations in your case.

1. I have had regard to the range of sentences handed down in the courts over recent years for the commission of the various crimes involved in this matter, bearing in mind that they can provide only general guidance as each case and offender must be considered separately.

1. In the circumstances and in order to construct an appropriate effective sentence for the series of separate but related offences which you committed, I have decided that there should be only a limited cumulation of the various sentences.  Accordingly, you are sentenced as follows.  On count 1 of presentment M02579457.1, three months' imprisonment;  on count 2, six months' imprisonment; on count 3, six months' imprisonment; on count 4, nine months' imprisonment; on count 5, three months' imprisonment.  On the count of murder, imprisonment for a period of 18 years.  The sentences on counts 1, 2 and 5 are to be served concurrently with the sentence imposed on the count of murder.  Three months of the sentence imposed on count 3 and 3 months of the sentence imposed on count 4 are to be served cumulatively upon each other and upon the sentence imposed on the count of murder.  This creates an effective sentence of 18 years and 6 months.

1. I fix a non-parole period of 13 years and 6 months.  I declare that the period of 90 days that you have undergone as pre-sentence detention be reckoned as having been served under the sentence hereby imposed.

1. I direct that this declaration and its details be entered in the records of the court.

1. I have also signed the other orders which have been handed to me in this matter.

1. MR ELSTON:  Thank you, Your Honour.  There was an order for restitution, forfeiture and disposal.  Pre-sentence detention is calculated at 92 days.

1. HIS HONOUR:  I am quite happy to substitute the period of 92 days, but I had the computer check yesterday.

1. MR ELSTON:  The computer is wrong, Your Honour, with respect.

1. HIS HONOUR:  I will take your word for it.  I say that with a certain level of casualness, because it does happen.

1. MR ELSTON:   Yes.  And there is also an order necessary to be pronounced in relation to a licence.

1. HIS HONOUR:  Yes, and that requires the cancellation of the driver's licence.

1. MR ELSTON:  Yes, a disqualification for whatever period Your Honour deems appropriate, compulsory but nonetheless.

1. HIS HONOUR:  I will cancel his driver's licence and disqualify him for a period of 12 months. 

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