R v Changan [2001] VSC 97

Supreme Court of Victoria|2001-04-09|Before: COLDREY, J.

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.

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 beam. A hot plate of ashes was placed underneath you and was sprinkled with some chillies so that the fumes rose into your eyes and face.

In 1987, you followed your family to Australia and initially lived in the family home. Whilst the physical violence now ceased, the evidence of your siblings was that your father consistently "put you down" verbally. For example, while you were working with him at the spare parts department of Melbourne City Toyota, your father would tell other salespersons to ask you if you were the son of a Negro or an Aboriginal person. Apparently this was because, of all the family, you had the darkest complexion. For some reason your father, although himself a Fijian Indian, harboured the view that whites were superior to blacks. Subsequently he would abuse you by calling you "Blackie" or black bastard.

Despite this abuse, you showed respect towards your father as part of the Indian tradition. There was no evidence that you were ever aggressive towards him.

Although by now you were about 19, you had to give your pay packet to your father and you would receive about $10 per week for your expenses. There was an episode where you took $1 from that pay packet to add to the $2 you had in order to buy some red apples. These were apples favoured by your younger brother Danny but were $1 dearer than the green ones usually purchased by your father. The removal of the money from the pay packet and the purchase of the expensive apples so angered your father that he expelled you from the family home.

After a period of separation you returned to the family home, then at St Albans, where you continued to suffer verbal humiliation. On one occasion such humiliation occurred in front of some guests and, thereafter, you went to the bathroom and slashed your wrists. Upon discovering this your father laughed and said, "Oh he can't even commit suicide, he is that stupid. He can't even commit suicide properly".

In about March 1999, your parents separated. Thereafter you became embroiled, unwillingly, in their domestic disputes. Indeed it appears that your mother requested you on a number of occasions to attempt to organise the killing of your father. You were uncertain as to whether she was serious or not, but in any event, you resisted her entreaties.

The next traumatic episode in your life, which may be regarded as having some relevance to this killing, occurred about two weeks before the fatal altercation with your father. You were the subject of a sexual assault in the workplace perpetrated by a fellow employee. That assault involved the grabbing of your testicles. You were seen on 6 August by your general practitioner, a Dr Gary Murdoch, who described your testicles as tender and bruised and your mental state as distressed, depressed, and embarrassed.

On 10 August 1999, he described you as being further withdrawn and exhibiting very low self-esteem. On 16 August you were still distressed and Dr Murdoch described your condition as having deteriorated further because of additional family pressure. In a psychiatric report by Dr Lester Walton, a consulting psychiatrist, the view is expressed, based upon Dr Murdoch's observation, that you were the subject of a "reasonably significant psychiatric disturbance".

From information contained in the report of Dr Walton, it also appears that your father was not coping well with the breakdown of his marriage. From August 1997, he was under the regular care of a Dr M. Pinto, a specialist psychiatrist. Later there were admissions to psychiatric hospitals, the last being on 2 August 1999 where your father was treated for bipolar mood disorder. Assessments conducted throughout August by a Dr Pragastis elicited a report that your father was irritable throughout the month of August, would have been almost impossible to live with, and had the potential to be violent. It may be that the psychiatric diagnosis provides a clue to the past behaviour of the deceased, and even to his attitude on the fatal evening. It should be noted, however, that there is no evidence of any physical violence perpetrated by the deceased on the evening of his death.

As fate would have it, you, in your fragile mental state and he, freshly discharged from hospital, were to meet in the early hours of 19 August. It appears that your initial reason for travelling to Melbourne from your current home in Moulamein was to provide assistance to your younger brother who was attempting to retrieve a television and other personal items from former flatmates. Failing to locate him, you ended up at your father's house at Narre Warren. A conversation with him, which began amicably over a few drinks, later degenerated. It is not necessary to attempt to summarise your garrulous account of the subsequent events. You told police, in effect, that in the course of the conversation with your father, he once again criticized the family, expressed the intention to cheat your mother of her property and was dismissive of the advice you proffered in an endeavour to resolve your parents' domestic dispute. In essence, you talk in the record of interview of being stressed, of the pressure building up in your head and, when faced with your father's attitude, just exploding.

It is fair to say that the death of your father bears the hallmarks of a frenzied killing consistent with a person out of control. On your account, your assault on your father commenced with you punching him two or three times to the head and pushing him to the ground. You again struck him when he tried to get up and you described retrieving a knife from the adjacent kitchen area, cutting his throat and stabbing him. It appears that, in fact, two knives were used. One with a bent blade retrieved from a knife block on the kitchen sink and a second which snapped, leaving the knife blade protruding from a wound in the left side of the chest. The pathologist, Dr Ranson, described the cause of death as the incised wound to the front of the neck which severed the larynx, right carotid artery and right jugular vein. He observed six wounds to the chest and abdomen of the deceased, not including the incised injuries to the hands, which could be described as a defensive wound. Dr Ranson said that about seven or eight passes of a knife would have been involved. Bruising, abrasions and lacerations to the deceased's face were consistent with the application of blunt force.

After the killing you fled to a sister's house which was also in Narre Warren. Among other things that you said was that your father was calling everybody names and you could not take it any more and had either hurt him or killed him, depending on the meaning attributed to the Hindi word "mara". You also kept saying: "My God my God I can't believe I did that. I've got a wife. I've got two children."

You subsequently drove back to New South Wales where you were arrested by the police.

Although at one stage you told the police that, in effect, you had done it for your mother, I regard this, in all the circumstances, as a retrospective rationalization of your actions. I note Dr Walton's opinion that, at the time of the killing, you were suffering an acute depressive disorder which had developed in the aftermath of the sexual assault at work. Further, he expresses the view that your aggression, which was quite out of character, represented the discharge of anger and tension which had built up over the years and has now been replaced by depression. Your mental state may be regarded as lessening your moral culpability to some extent.

I now turn to matters personal to you which are relevant to the sentence to be imposed. In Latouka you had attended a local high school called Shai Vevka to approximately Year 11. In Australia you completed your education at Caulfield Secondary College leaving, apparently at the insistence of your father, half-way through Year 11. You then obtained employment in the spare parts department of Melbourne City Toyota where your father also worked. While there, you attended Richmond TAFE as part of a spare parts apprenticeship you were pursuing with Toyota. You completed three quarters of that apprenticeship, but it appears that in order to avoid ongoing conflict with your father, you moved to Sydney in about 1991. There you worked for 18 months with a Sydney branch of Toyota. Because of homesickness you returned to Victoria and, after a period of unemployment, managed to obtain work with Toyota in Coburg as a courier driver. In 1997 you married, and there have been two daughters of that union, currently aged two and four. You remain happily married. Subsequent to your marriage you moved to rural New South Wales, initially performing some farm work on your parents-in-law's property and then, having initially been employed by the local Wakool Shire Council as a labourer, you were promoted to the position of truck driver. Your permanent residence is in the New South Wales town of Moulamein.

There are a number of matters which may be put in your favour. At 29 years of age you have no prior convictions whatsoever. Indeed you have never before exhibited aggression. You were referred to by your family as "a gentle giant". You have a history of hard work and you have been a loving husband and father. In short, up until this offence, your life has been a blameless one.

You are also fortunate to have the ongoing support of all your family members.

On your plea evidence was given by the Reverend Allan Lockwood, the Uniting Church Minister at Moulamein. He had known you for some three years and spoke of the support you had given your wife Jill in her activities with the local youth group. He described you as a quiet gentle man, a devoted and caring father and a man well respected in the community. That assessment is corroborated by a number of character references tendered to the Court. Mr Joe Devereaux, the Deputy Fire Captain of the Moulamein Town Fire Brigade worked with you at the Wakool Shire Council and described you as trustworthy, honest and easy to get along with. He was pleased to call you a friend. Mr Lee Pattinson, the President of the Moulamein Lions Club spoke of you having been invited to join the club following valuable assistance you provided for many projects the club had undertaken. He described you as "a gentleman and upright man". Mr S.W. Hunter, an overseer with the Shire of Wakool, wrote of your work with the council concluding: "I have no hesitation in recommending David for any position, which he believes he is capable of undertaking, on the basis of his demonstrated ability to perform well on any task that he was asked to carry out."

Finally, a letter from Mrs Sylvia Wallace, the principal of the Moulamein Public School (and your mother-in-law) records the high standard of your maintenance work for that school when, for a period of time, you worked in a casual position of General Assistant.

Also tendered was a certificate recording your successful completion of an Anger Management Program conducted at Port Phillip Prison.

In the course of the plea, the Crown conceded, correctly in my view, that you were remorseful for what happened. It was also agreed by the Crown that you had always been willing to plead guilty to manslaughter and you are entitled to receive credit for a plea offer.

All of the personal factors, to which I have just adverted, point to your excellent prospect of rehabilitation. Indeed, given the circumstances of this offence, specific deterrence would appear to have no role in the sentencing process.

Of course, provocation manslaughter is a serious offence and the Court must be seen to uphold the sanctity of human life. Moreover, the Court should endeavour to deter the use of violence as a problem solving technique. There is no right to take the life of a person because their behaviour may be regarded as despicable and the Court must not appear to condone such actions.

However, the sentence to be imposed for the crime of manslaughter necessarily varies widely according to the circumstances of the offence and the antecedents of the offender.

In the light of the history of these events and the factors to which I have previously adverted, I have concluded that the denunciation of the taking of human life and the reflection of the principle of general deterrence may, in this case, be accommodated by a sentence which is also merciful, particularly in relation to the minimum term.

Balancing as best I can the principles of sentencing set out in the Sentencing Act, I have concluded that the appropriate sentence is that you be imprisoned for a period of 6 years.

I fix a minimum of 3 years before you become eligible for parole. I further declare that the period to be reckoned as already served under this sentence is 599 days inclusive of today's date. I direct that there be noted in the records of the Court the fact that such declaration is made and its details.

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