DPP v Prasoeur
[2006] VSC 41
•17 February 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1425 of 2005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| PISEY PRASOEUR |
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JUDGE: | BELL J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22-26, 29-31 August, 1, 5-6, 9, 12-17 September, 4, 25 November 2005 | |
DATE OF SENTENCE: | 17 February 2006 | |
CASE MAY BE CITED AS: | DPP v Prasoeur | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 41 | |
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Criminal Law – sentencing – murder of former lover – victim a young wife and mother – offender young (22) – careful premeditation – offender severely depressed - reasonable prospects of rehabilitation – offender falsely accused other person at trial – other person not a “victim” – other person could not make a “victim impact statement” – other person’s suffering not “direct result of the offence” – general and specific deterrence – Sentencing Act 1991 ss 3(1), 95A and 95B.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr D Trapnell and Mr S Reid | Mr S Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr J Dickinson | Balmer and Associates |
HIS HONOUR:
Pisey Prasoeur you have been found guilty by a jury of the murder of Aneta Pochopien on 14 April 2004.
The crime of murder is the most serious known to the law. The maximum penalty prescribed by the Parliament for this crime is life imprisonment, which is the heaviest maximum penalty prescribed for any crime. The deliberate taking of a human life is regarded by the courts as a matter of the utmost gravity.
The circumstances of the offence that I will shortly describe show that your actions were a serious example of this grave crime.
In 2003 you and Aneta Pochopien worked together on night shift at a factory in Mount Waverly. Over time you developed a relationship which became sexual.
In about August of that year, Ms Pochopien became pregnant to you. Without your knowledge or consent, she had an abortion on 19 September 2003, which was your birthday. On that day she sent you a text message by telephone to advise you of what she had done.
You were devastated by this news and felt that on each of your remaining birthdays you would be reminded of the abortion of the child that you wanted to be brought into the world.
You were obsessed with Ms Pochopien and bombarded her with attention. She grew tired of the relationship and eventually did not return your affections, especially after the abortion. She ended the relationship about three weeks after this event. You maintained strong feelings for her and could not get her out of your mind.
The abortion and the end of the relationship had a detrimental effect on your physical and emotional well-being. Your normally good work performance declined significantly, as did your standard of dress. By late 2003 and early 2004 you felt that, having lost Ms Pochopien, you had nothing to live for and would kill yourself. Your old friend, Conrad Tracey, found you to be depressed. He said you were normally a positive person but he could barely get a word out of you.
In early 2004 you sought medical assistance. In February you saw your GP, Dr Seema Sharma. She diagnosed you as being moderately to markedly depressed and suffering from an acute adjustment reaction, although not suicidal. You saw her again on 13 April, the day before the murder. You told her “life was shit” and you were drinking heavily and “smoking a packet a day.” You mentioned you had had suicidal thoughts the previous day but Dr Sharma did not think you were suicidal. She thought you were quite depressed due the end of the relationship with Ms Pochopien. She thought you were starting to lose hope.
On the same day, you worked the night shift at the factory, as did Ms Pochopien. You murdered her at about 5.20am the next morning. After work she drove her car home and pulled into the driveway of her house in Chadstone not far from the factory. You followed her home or laid in wait for her arrival. Before she could get out of her car, you shot her in the head and chest at very close range with a sawn-off rifle. She died from the injuries that she sustained.
You had two cars, one you drove to work and another you left at home, which was around the corner from Ms Pochopien’s house. You had moved there a few months before the murder to be near her. After Ms Pochopien finished work early in the morning on 14 April, you drove one car from work to your home, swapped into your other car, used it to drive around the corner to commit the murder, drove back to your home, swapped cars and drove back to the factory. On the way back to the factory you disposed of the rifle in a drain in a street near the scene of the crime. You disposed of the bolt of the rifle and the bullet cartridges respectively in a drain and in bushes at the factory.
The circumstances of the crime were horrific for the members of the Pochopien family. At the time of the murder, Peter Pochopien, Aneta’s husband, was asleep in his bed, as was their young son Martin. You knew this is where they were likely to be. Peter’s mother, Mrs Krystyna Maruszewski, and her husband, Mr Jack Maruszewski, were asleep at their home not far away. Mr Pochopien was woken by the shots that killed his wife. He found her slumped unconscious in a bloodied state in the driver’s seat of her car with bullet wounds to her head and chest. He did not know whether she was dead or alive. Being in shock, he forgot the emergency number to call. He got the number from Mr Maruszewski by calling him. He was advised by the emergency operator to give his wife mouth to mouth resuscitation to maximise her chances of survival. During the long minutes that passed before the ambulance officers arrived, Mr Pochopien did so, in the car. He displayed extraordinary fortitude. Martin observed at least some of this horrific scene, as did Mr and Mrs Maruszewski, who arrived very quickly.
The evidence is overwhelming that you intended to murder Ms Pochopien, then kill yourself. In the period prior to the murder you engaged in many internet searches in relation to topics that included murder, suicide and firearms. You made a list of things to do, including making a will and saying goodbyes, which were preparatory to a murder-suicide. Late in the evening on the day after the murder you sent a text message by telephone to your friend and fellow employee, Ms Margaret Esse, in which you identified the location of the rifle, bolt and bullets. You told her you loved her and said goodbye and told her where your will was. You asked her not to say anything until after she knew you were dead. You wanted it known that you had committed the crime, but not until you were also dead.
The jury did not have to find that the murder was premeditated but, consistently with their verdict, it is open to me to find that it was. I am satisfied beyond reasonable doubt, as I must be in relation to all matters adverse to your interests, that the murder was premeditated, indeed carefully so. The circumstances leave no other conclusion reasonably open.
On 15 April 2004, in the morning after the murder, you attended at a police station and made a statement. You told the police you had no idea who had or might have murdered Ms Pochopien. You gave a false account of your movements on the morning of the crime. You did not allege, as you did in the trial, that your fellow employee, Mr Rohan Munasinghe, was the murderer.
Later that day you attended at the police station again. Before a formal interview could begin you made a gesture and a remark which implied that you were confessing to the crime. You obtained legal advice and, in the formal interview, declined to answer questions and made no comment, which was your right.
Sometime during the early hours of 16 April 2004 you tried unsuccessfully to kill yourself by cutting the inside of your left elbow and also your left wrist with a blunt Stanley knife. Later, by text message, you asked Ms Esse not to say anything about your earlier message and to forget what the message said.
After committing the murder and attempting the suicide you saw doctors. Therefore I have a reasonably clear idea of your mental state at the time. On 16 April 2004 Dr Sharma found you to be suicidal and referred you to a psychiatric hospital. On that day you went to Box Hill Hospital and were seen by Dr Kerry O’Meara, a second-year resident doctor. She found you to be quietly spoken and quite saddened and depressed. You were also seen by Dr Jennifer Babb, the Psychiatric Registrar. She transferred you to the acute psychiatric inpatient ward. She found you to be suffering from a major depressive disorder, or an adjustment disorder, with depressed mood.
You were arrested in the evening of 16 April 2004.
Between your arrest and the commencement of your trial you continued to deny involvement in the crime. But you did not allege that Mr Munasinghe was the murderer. The first time you did this was in the trial when your counsel put to Mr Munasinghe in cross-examination that he had confessed to committing the crime. It was also put to him that he had sworn you to secrecy on pain of being killed yourself. You alleged Mr Munasinghe had said these things at a conversation with you at the factory in the early hours of 15 April 2004, the day after the murder. You gave evidence in your own defence in which you repeated these allegations. In his testimony Mr Munasinghe denied the allegations. The jury rejected your evidence and found you to be guilty of murdering Ms Pochopien. The allegations were false.
I have been given a victim impact statement by Mr Munasinghe. He states your allegations have caused him immense mental instability and public shame, especially as they were highlighted in the media. He states the allegations have also caused physical and mental stress for him in his family and his work.
Counsel for the Director of Public Prosecutions submitted I should accept Mr Munasinghe’s statement as a victim impact statement under the sentencing legislation and take it into account on this basis. I cannot do so because the definition of “victim” in the legislation is not wide enough in scope to include someone in Mr Munasinghe’s circumstances.
Section 3(1) of the Sentencing Act 1991 defines a victim to be a person who has suffered “as a direct result of the offence…” Under s 95A(1) only a person who comes within this definition can make a victim impact statement. Under s 95B, the statement can include details only of suffering that is this kind of direct result.
The definition of “victim” in s 3(1) extends beyond persons upon whom a crime has been physically perpetrated and their family. A victim can be anybody who suffers as a direct result of the offence. If Mr Munasinghe’s suffering had been a direct result of the murder of Ms Pochopien, he could have made a victim impact statement, even though he was not a member of her family. However, his suffering has been a direct result of the false allegations that you made about him in the trial, which is long after the event of the crime. If you had not made these false allegations, he would not have experienced the same kind or degree of suffering. The definition of “victim” should not be interpreted narrowly[1] but I must still give effect to the “particular language”[2] in which the definition is expressed[3]. Therefore I cannot take Mr Munasinghe’s statement into account as a victim impact statement under the Sentencing Act.
[1]R v Miller [1995] 2 VR 348 at 354 per Southwell, Ormiston and McDonald JJ.
[2]Victims Compensation Fund Corporation v Ainsworth (2001) 51 NSWLR 466 at 472 per Mason P.
[3]I note that the explanatory memorandum relating to the victim impact legislation when it was introduced stated, in reference to the definition of “victim”: “The definition sets out the requirement that the victim is confined to those who suffer directly from the commission of an offence.”
Your actions in this respect are none-the-less relevant to your sentence in another way. You had the right to plead not guilty at the trial and to defend yourself. However, in an attempt to escape criminal liability for the offence, you subjected an innocent man to a blackening cross-examination and gave evidence under oath in which you falsely accused him of committing the crime of murder. Your conduct in doing so is a clear demonstration that you suffer no remorse.
Your motive for murdering Ms Pochopien was revenge for aborting her pregnancy to you and for ending the relationship with you. You believed she had exploited her relationship with you and made your life not worth living. You therefore formulated a plan to kill her and then yourself. After the suicide attempt failed you decided to try to escape criminal liability for the crime.
Several victims have suffered terrible consequences as a result of your crime.
Ms Pochopien was a young woman who was a member of a Polish family comprising herself, her husband Peter, their one child, Martin, who is now aged 12, Peter’s mother, Krystyna, and her husband, Jack.
At the time of her death, Aneta and Peter had been married for ten years. They had been childhood sweethearts. In 1986 Mr Pochopien moved to Australia with his mother. He returned to Poland in 1990 to be with Aneta. They married in Poland in 1992 and Martin was born there in 1993. The young family migrated to Australia in 1993. Before Aneta’s death, the whole family had made Australia their home.
Ms Pochopien lost her life as a consequence of your crime. You took from her the most important human right that she possessed, the right to life itself. She was a young mother and wife with most of the best years of her life ahead of her. She had relationships outside her marriage but this in no way reduces the utmost gravity of the crime you committed against her.
Mr Pochopien and Martin Pochopien lost a wife and mother respectively, and in the horrific circumstances which I have already described.
In a victim impact statement Mr Pochopien describes the consequences of the crime for him and his son. Mr Pochopien lost his business and has not been able to work since his wife’s murder. He had to sell the couple’s house. He takes medication for depression and is nervous and short-tempered. He says words cannot describe how the crime has really affected his life. He is scared and concerned for his son. The family has returned to Poland because it was just too painful to stay in Australia, even though they love this country.
Martin has lost his mother and the impact of this upon him will be profound. The violent loss of his mother will affect him for the rest of his life. He will, however, be supported in his life by his father and his grandmother and her husband.
Mrs Maruszewski has lost a daughter-in-law, with whom she had a loving relationship, as if Aneta was the daughter she never had. In her victim impact statement, Mrs Maruszewski also says that no words could ever describe what the crime has done to the family and the depths of their pain and devastation.
You were born on 19 September 1981. In April 2004 you were 22 years of age. You are now 24 years of age.
Your mother is Samron Kong and your father is Khim Prasoeur. You have a sister, Vorn Prasoeur. Your family gave evidence in the trial and they impressed me as humble and dignified people. Your parents are Cambodians who came to Australia with you as refugees. You were two years old. They came via a refugee camp in Thailand as they had to flee the Khmer Rouge in Cambodia.
You were educated at primary and secondary school in Melbourne to year 10. You left school to work in a department store. When you turned 18 you undertook a security guard course. You were employed in that capacity in various positions on a part-time basis. You obtained part-time employment at the factory in 2002. You continued your studies until you secured your full qualification.
In 2003 you commenced working full-time at the factory. Until your physical and mental decline in 2003 you were a competent, reliable and well regarded employee. The decline in your performance and standard of dress was noticed by your managers for the very reason that you had previously been an exemplary employee.
You were described by Mr Tracey as a fairly quiet person. He said you wanted to become a police officer. He noticed that the abortion and the end of the relationship had a very detrimental impact upon you. It is clear from the way that Mr Tracey spoke of you that you have the capacity to inspire affection and loyalty in people around you and form meaningful relationships with friends.
You deserve credit for the fact that, prior to committing the crime, you were a person of good character with no prior criminal history and no history of violence. I have taken these matters into account in your favour.
Your attempted suicide and implied admission to the police may be indications that, in the immediate aftermath of the murder, you were experiencing some feelings of remorse. However you did not act upon those feelings. You have not expressed any remorse to me and I can discern none in your demeanour or conduct at the trial. So completely lacking in remorse were you in the trial that, as I have said, you falsely alleged that Mr Munasinghe was guilty of the murder.
As to your prospects of rehabilitation, there are indications both positive and negative as to what these prospects are.
On the positive side, you come from a good family and I have no reason to think they will deny you support. Your personal history up to April 2004 suggests that you have a propensity to obey the law, not to break it. You are a person of a comparatively young age who should mature with time. You murdered Ms Pochopien in a state of severe depression from which you should not suffer to the same extent in the long term. The fact that you access a counsellor in prison when you need to suggests you are developing an awareness of the impact of this condition.
There is evidence that you appreciate the need to improve your personal development and utilize the positive resources available to you in custody. Ms Anne Hooker is a youth development officer at Port Phillip Prison. She has worked closely with you in the Remanded Young Offenders’ Program. You have been an active participant in the Program. You have completed several units of study, including communication skills, anger management and consequential thinking. Ms Hooker describes you as a model prisoner.
While in prison you have also completed a number of TAFE preparatory units of study. This suggests you are preparing yourself for further study to supplement your modest level of education.
On the negative side, you have committed a carefully premeditated murder and expressed no remorse. There is very little, if anything, before me to indicate that you appreciate the seriousness of what you have done, and are sorry.
In the circumstances, I consider that, in the long term, you will probably rehabilitate and are not likely to re-offend. Much will depend on whether you come to accept personal responsibility for your actions.
I come now to weigh the various sentencing considerations and announce your sentence.
As your offence was murder and your actions constituted a serious example of this grave crime, the most significant sentencing consideration must be the denunciation by this Court of the criminal conduct in which you engaged. Your moral culpability for murdering Ms Pochopien, and for the tragic consequences suffered by her family, is no less because you had been in a relationship with her. Anger, hurt or disappointment over the termination of a relationship, or a person’s conduct in a relationship, does not justify violence of any sort, let alone murder. The fact that Ms Pochopien aborted her pregnancy to you without your knowledge or consent did not justify her murder.
The sentence must reflect the need generally to deter people from committing such a crime. Those who would commit the crime of murder must understand that they will receive a punishment proportionate to the grave nature of the crime. This applies equally to men who kill women with whom they have been in a relationship.
The sentence must also reflect to an appropriate extent the need specifically to deter you from committing crime in the future.
There is a distinction between a premeditated murder and one committed in a momentary act of passion. Your criminal conduct was premeditated, which is an aggravating factor.
I have taken into account the impact of the crime upon the Ms Pochopien’s husband, son and mother-in-law.
There are three significant mitigating factors. The first is your good character and clean record to date. The second is your comparative youth and prospects of rehabilitation. The third is your mental ill-health at the time of the murder. I take all of these factors into account in your favour and make the following additional remarks about the second and third.
As to your comparative youth and prospects of rehabilitation, you were 22 years of age when you committed the crime and are now aged 24. Youth, including comparative youth, is taken into account as a mitigating factor because the degree of moral culpability of an immature young offender may be less than that of a mature adult. Maturity is not just a matter of chronological age. A young adult aged 22 years may be emotionally very immature and probably will rehabilitate over time. I think this is an accurate description of you and I take it into account in your favour.
I have taken your immaturity and prospects of rehabilitation into account as much as I can in the circumstances of this case. However, the crime being murder, and taking the circumstances of the offence into account, I can go only give a certain amount of weight to these mitigating factors.
As to your mental ill-health, at the time you committed the crime your capacity to reason was impaired to some extent by the severe depressive illness from which you were suffering. The illness influenced your decision to engage in the criminal conduct that resulted in Ms Pochopien’s death. Therefore, to some extent, my assessment of the moral responsibility you bear for your criminal conduct, and the weight I should give to general deterrence as a sentencing consideration, should be sensibly moderated. However, you were not suffering from a serious psychiatric illness. You knew what you were doing. Therefore, despite your illness, you still bear a very substantial degree of moral responsibility for your crime and general, as well as specific, deterrence remain significant sentencing considerations.
In all of the circumstances, for the murder of Aneta Pochopien you are sentenced to be imprisoned for 20 years. I fix a minimum of 15 years before you become eligible for parole. Pursuant to s 18 of the Sentencing Act I declare that the time that you have spent in custody in relation to these proceedings is 673 days (inclusive of today) and I direct that it be reckoned as a period of imprisonment already served under the sentence imposed.
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