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[2003] VSC 499
defendant. Sentenced to imprisonment for 5 years and 6 months for manslaughter, non-parole period fixed at 3 years and 6 months; declaration of pre-sentence detention of 710 days to 19 December 2003; applied...
Teague J re-sentenced Gabriel Omar Chang for manslaughter after a jury verdict. The judge found the accused's account unreliable, accepted that he committed a violent unlawful act causing death but not with intent to kill, identified serious aggravating post-offence conduct, avoided double punishment for offences already sentenced, and applied Court of Appeal principles in Stares to provide effective credit for time served. Chang received 5 years 6 months imprisonment, a 3 years 6 months non-parole period, and a declaration of 710 days pre-sentence detention to 19 December 2003 (paras 5-8, 12).
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1,770 words · generated 17/07/2026
Gabriel Omar Chang was re-sentenced for the death of Dianne Psaila. The jury returned a verdict of manslaughter on 9 December 2003 and Teague J was required to impose sentence (para 1). The factual picture was problematic: the judge explicitly rejected large parts of Chang's account and found that, although he could not specify precisely how the death occurred, the evidence established a violent unlawful and dangerous act by Chang that caused Dianne's death, but that his state of mind did not reach an intention to kill or to inflict really serious injury (para 7). After the death, Chang engaged in a sequence of callous acts, removing and tightly wrapping the victim's top around her head, striking her with a meat tenderiser, bundling her into the boot of her car, deceiving family about her whereabouts, leaving her in the boot for days and preparing to treat the body chemically in a shallow grave, conduct treated by Teague J as aggravating (para 8).
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Procedurally, Chang had earlier been tried and convicted of murder in February 2001 before Justice Vincent, who in April 2001 imposed an aggregate sentence: 18 years for murder plus other sentences for five linked offences, producing an effective head sentence of 18 years 6 months and a declared 92 days pre-sentence detention with a non-parole period of 13 years 6 months (para 3). In September 2003 the Court of Appeal ordered a new trial, meaning the murder conviction could not stand; the sentences for the five other offences remained (para 4). Teague J concluded those other sentences, when stripped of the murder sentence, resulted in an effective 12 months imprisonment that must be treated as already served between April 2001 and April 2002 (para 4). He therefore declined to include that 12-month period in the declaration of pre-sentence detention now required for the manslaughter sentence, and, applying the Court of Appeal's guidance in Stares, gave an effective credit so as not to penalise Chang for the altered sentencing structure (paras 4-5, 12). The sentence imposed was 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months, and a declaration of pre-sentence detention of 710 days to 19 December 2003 (para 12).
Two strands dominate the reasoning. First, Teague J determined the factual and moral culpability established by the evidence. He expressly disbelieved the accused's version, noted forensic inconsistencies and the accused's admitted lies, and yet recognised evidential limits: the autopsy did not disclose a precise cause of death and there was no apparent motive (paras 6-7). From that factual slate he concluded the killing was violent, unlawful and dangerous but did not involve intent to kill or to inflict really serious injury; that assessment shaped sentence severity, substantial, but not the very highest end of the range (para 7).
Second, the judge addressed complex procedural and cumulation problems created by appellate intervention. Justice Vincent's prior sentencing had been carefully structured as an aggregate; the Court of Appeal's order setting aside the murder conviction altered that architecture and left sentences for linked offences intact. That produced a factual situation in which Chang had actually served 12 months under the remaining sentences (paras 3-4). Teague J considered that there was no precise statutory entitlement to an additional credit for those six months that had been effectively cumulated under the murder sentence, but relied on the Court of Appeal's principles in Stares to provide an appropriate effective credit so that the re-sentencing would not produce an injustice by double-counting or omitting credit for time genuinely served (paras 5, 12). He also emphasised the need to avoid punishing twice for aggravating conduct already the subject of separate sentences (paras 2, 8). These two procedural constraints (crediting time and avoiding double punishment) materially influenced the final imposed term and the declaration of pre-sentence detention.
In short, sentencing reflected both an assessment of culpability on the manslaughter facts and careful adjustment to the practical consequences of the prior aggregate sentence having been disturbed on appeal.
Before the re-sentencing exercise the case had reached a position in which a judge (Justice Vincent) had imposed aggregate sentences after a murder conviction and pleas/sentences for related offences (para 3). The Court of Appeal's order in September 2003 changed that structure by ordering a new trial for the murder count, meaning the previously structured aggregate sentence could not continue to govern the defendant's overall position (para 4).
Teague J's decision shows how a sentencing judge, when confronted with an appellate disturbance of an earlier aggregate sentence, may use the Court of Appeal's principles (here, cited as Stares) to provide an equitable credit for time actually served that would otherwise be encompassed in the earlier aggregate order. Teague J explicitly recognised that a precise statutory right to the exact credit was not available but that application of Stares principles permitted an effective credit (paras 5, 12). The decision therefore illustrates the practical application of appellate guidance to avoid anomalies and injustice in re-sentencing after successful appellate intervention.
This judgment does not alter statutory sentencing law, but demonstrates judicial practice in reconciling earlier aggregate sentencing structures with later re-sentencing, by applying appellate principles to avoid unfair penal consequence.
Para 5: "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."
Para 7 (first part): "I do not accept that the death of Dianne Psaila happened as described by you. ... 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."
Para 8: Listing of post-offence acts (removal of top, wrapping, striking with meat tenderiser, placing in boot, deceiving family, leaving in boot, preparing chemical treatment).
Para 12: Sentencing order and application of Stares: "I sentence you to prison for a period of 5 years and 6 months ... I fix a non-parole period of 3 years and 6 months ... I make a declaration as to pre-sentence detention of 710 days..."
This decision is directly engaged when:
Practitioners should look to this decision when representing clients in re-sentencing contexts where earlier aggregate sentencing has been eroded by appellate action, and where careful calculation of credit and avoidance of double punishment is necessary.
This judgment itself records reliance on an earlier Court of Appeal authority (Stares) for crediting principles (paras 5, 12) and refers to the Court of Appeal's order that required re-sentencing (para 4). The judgment does not contain any discussion of subsequent appellate treatment of Teague J's orders or further appellate exposition of his application of Stares. Consequently, this judgment demonstrates a trial judge applying appellate guidance; it does not report any later appellate consideration of Teague J's exercise. To understand how later courts have treated the particular application here would require post-2003 research beyond the text of this judgment.
The judgment leaves some practical and doctrinal questions open or only partially addressed:
For these reasons, while R v Chang demonstrates practical approaches to re-sentencing and crediting in the wake of appellate disturbance, detailed applications will often depend on the precise prior sentencing architecture and the extent to which courts articulate quantification rules for equitable credit in subsequent decisions.
[2003] VSC 499
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.
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.
2 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.
3 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.
4 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.
5 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.
6 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.
7 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.
8 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.
9 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.
10 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.
11 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.
12 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.
R
Chang [2003] VSC 499
Sentenced to imprisonment for 5 years and 6 months for manslaughter, non-parole period fixed at 3 years and 6 months; declaration of pre-sentence detention of 710 days to 19 December 2003; applied principles from Stares to provide effective credit and avoided double punishment relative to earlier sentences (paras 12, 5, 2, 4).