R v Changan - [2001] VSC 97

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1445 of 2000

THE QUEEN

DAVID GANESH CHANGAN

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JUDGE:	COLDREY, J.
WHERE HELD:	MELBOURNE
DATE OF SENTENCE:	9 APRIL 2001
MEDIUM NEUTRAL CITATION:	[2001] VSC 97

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CATCHWORDS: Sentence – Provocation - Manslaughter – Victim father – History of parental abuse – Excellent prospects of rehabilitation – Six years with a non-parole period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Kayser	Office of Public Prosecutions
For the Accused	Mr. J. Kaufman	McNamaras

HIS HONOUR:

David Ganesh Changan, having been presented for trial for the murder of your father Kaliapa Changan at Narre Warren on 19 August 1999, the jury found you guilty of manslaughter. It is now my responsibility to sentence you for that offence.

The effect of the jury verdict was, in my view, that whilst the Crown had proved that you inflicted a number of stab wounds on Kaliapa Changan with the intention of killing him, the Crown had failed to exclude beyond reasonable doubt that you acted under the influence of provocation.

In order to place your actions in context, it is necessary to examine your relationship with your father. The complexity of human interaction is such that it is impossible to obtain a complete picture of any relationship. The perceptions of those affected by it and those who observe it, will vary. Views of the nature of the relationship may also be distorted by the passage of time. Further, the death of one of the parties, here Kaliapa Changan, deprives the Court of a possible alternative description of the dynamics of the relationship and it is not difficult to blacken the character of the dead. Nonetheless, the jury verdict makes it appropriate, in determining the sentence to be imposed upon you, to have regard to the description of your relationship with your father which emerged in the course of this trial and which culminated in the stabbing.

You are presently 29 years old having been born in Latouka, Fiji in September 1971. You have one younger brother and four older sisters.

It appears from an early age, you suffered at the hands of your father who was both a severe and a bizarre disciplinarian. Your brother and two sisters gave evidence of a number of acts of cruelty to which you were subjected. These occurred over a period of about seven years when you were aged between 8 and 15 and living in Latouka, Fiji. Up until the age of 15 you were repeatedly belted with an extension cord or with the buckle side of a belt. This would leave cuts and bruises on your body.

After one such belting you were tied naked to an ant hill, suffering ant bites all over your body. In another incident your father heated a metal file in hot coals and placed it on your skin, searing it. On another occasion your father tied your legs and hung you from an exposed…

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 Changan

Details

AGLC: R v Changan [2001] VSC 97
Case: [2001] VSC 97
Decision Date: 9 April 2001

CaseChat Overview and Summary

The case of R v Changan involved a defendant charged with the manslaughter of his father. The dispute centred around the appropriate sentence for the defendant, who had killed his father in a moment of provocation. The case was heard in the Supreme Court of Australia. The key issue before the court was to determine an appropriate sentence for the defendant, considering the factors of provocation, the history of parental abuse, and the defendant's prospects of rehabilitation. The court needed to balance these mitigating factors against the gravity of the offence and the need for general deterrence.

The court examined the circumstances of the killing, noting the history of abuse suffered by the defendant at the hands of his father. It considered the defendant's prospects of rehabilitation, which were described as excellent. The court also assessed the need for general deterrence and the principles of sentencing for manslaughter. Ultimately, the court decided that a custodial sentence was necessary but recognised the mitigating factors that could reduce the severity of the penalty. It concluded that a six-year sentence with a non-parole period of three years was appropriate, taking into account both the need for punishment and the potential for rehabilitation.

In its judgment, the court highlighted the significance of the defendant's history of abuse and his prospects of rehabilitation in determining the sentence. It acknowledged that while the offence was serious, the mitigating circumstances warranted a sentence that allowed for the defendant's rehabilitation. The court emphasised the importance of proportionality and the specific circumstances of each case in sentencing. The final orders of the court were that the defendant be sentenced to six years in custody, with a non-parole period of three years.

Orders