R v Piper
[2008] VSC 569
•16 December 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1422 of 2008
| THE QUEEN |
| v |
| DAVID PIPER |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2008 | |
DATE OF SENTENCE: | 16 December 2008 | |
CASE MAY BE CITED AS: | R v Piper | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 569 | |
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CRIME – Sentencing - Armed robbery 2 counts – newsagency - kitchen knife – balaclava helmet – mature age – no prior convictions – full confession to police - plea of guilty – first count 2 years second count 4 years.
Murder – defacto partner – initial strangulation by hand then subsequent strangulation by ligature – full confession to police – plea of guilty – mature age – gravity of offence – general deterrence – 16 years imprisonment - total effective sentence 19 years with 15 years non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Cannon | Office of Public Prosecutions |
| For the Accused | Mr D. Sexton | Victoria Legal Aid |
HIS HONOUR:
David Piper you have pleaded guilty to two counts of armed robbery and one of murder.
On Monday 28 April 2008 you walked into the Prahran Police Station and reported that you had just strangled Wendy Chow to death.
Subsequently you confessed to two armed robberies carried out in February and July 2004.
You were born on 24 November 1971 and were 32 years old at the time of the armed robberies and 36 years old at the time of the murder of Ms Chow.
Both the armed robberies took place at the Orrong Newsagency in Caulfield North. On each occasion you entered through a public entry at the rear of the premises wearing a black balaclava helmet pulled over your head. You are a large man in the order of 1.88 metres tall.
On each occasion you produced a kitchen knife with a blade of approximately 15 cm in length. You entered the staff area behind the service counters and told staff ‘This is a robbery’ and demanded access to the cash tills. On the first occasion you opened the Tattslotto and Post Office cash tills and removed $3,240 in cash, which you placed in a hessian bag. You then walked out of the premises and ran away.
The robbery caused the two staff members you had threatened shock and emotional trauma. Members of the public were also present.
On the second occasion you threatened another staff member and said ‘I don’t want to hurt you, this is a robbery, give me your money’. You then removed $4,234 in cash from the till. Again members of the public were present. When witnesses followed you out the rear door, you said ‘Don’t follow me, it’s not worth it’, and then fled the scene.
When interviewed by police you stated that you committed the first offence because you ‘wanted to know what it felt like’. You further told them that the second robbery was carried out because you needed money to pay bills and rent.
On your plea counsel submitted that both the offences occurred in circumstances where you were under financial pressure arising from the desire to support yourself and your then partner on casual wages, at a time when both of you were using drugs. I accept they occurred in this context.
It is also to be noted that these offences occurred when you had reached a relatively mature age and had no prior convictions.
On each occasion you used a combination of physical bulk, a balaclava helmet and a large knife to threaten and intimidate female staff. The knife was a dangerous weapon capable of inflicting very serious injury. The robberies were traumatic both for the staff involved and for members of the public who were present.
The amounts stolen were not trivial.
The robberies were carried out in broad daylight in the presence of members of the public, at a shop forming part of a local community centre. They were carried out in circumstances inherently likely to cause alarm, shock and distress to other persons.
Both robberies were clearly premeditated and carried out with a deliberate and sustained threat of violence.
The second robbery must be regarded as a particularly serious offence. First, you went back to the same shop as that which you had previously robbed, in order to intimidate and again rob those present at it. Secondly, you had had time to reflect on your first offence. Whether or not the first offence was committed in part to find out what it felt like, as you told police, the fact is that by the time of the second offence you did know precisely what was involved in what you proposed to do. You knew the order of probable financial gain and the manner in which the apprehension of violence could and would be created by you in order to achieve that gain.
As against these matters you are entitled to the benefit of your pleas of guilty, and in the present case it is acknowledged that but for your confessions, you would almost certainly have escaped detection as the perpetrator of the robberies. Accordingly, your co‑operation with police is a significant factor.
I will say more about your personal circumstances in connection with your conviction for murder but can I say at this stage that I do not accept that financial stress resulting in large part from a history of drug abuse, can be regarded as in any way justifying or mitigating the gravity of the robbery offences.
I turn then to the murder of Wendy Chow. Ms Chow was 35 at the date of her death. She had attended secondary school in Melbourne and worked principally in Melbourne, but also for a time in Hong Kong. Following the separation of her parents when she was relatively young, she had lived most of her life with her father and her sister.
In late 2007 she moved from her father’s home to a rental unit in Toorak Road, Toorak.
At the end of 2005 you and she had met and commenced a spasmodically intense relationship. That relationship broke down but then recovered so that in late 2007 Ms Chow agreed to you moving into the Toorak Road flat.
On 21 December 2007 Ms Chow reported to Prahran Police Station that she had been assaulted by you. It is appropriate to record that compared with you she was diminutive in stature, being only 153 cm in height and weighing approximately 50 kg.
Police interviewed you and an intervention order was subsequently granted by the Melbourne Magistrates’ Court on 27 December 2007, the conditions of which prohibited you from approaching Ms Chow.
In consequence you stayed first at a crisis centre and then with a friend.
In January 2008 Ms Chow became reconciled with you and you moved back to the flat. It appears that thereafter you continued an emotionally tumultuous and argumentative relationship.
On Sunday 27 April the two of you argued while shopping. The argument escalated to the point Ms Chow told you that she wanted you out of the flat and gave you one week to move.
That evening you slept on the couch in the living room and Ms Chow slept in the bedroom. During the course of the night you wished her dead.
At 7:00am on the Monday morning Ms Chow was in the bathroom, getting ready for work. You told her you did not want to move out. She said it was all over and she insisted that you move out. The discussion became an argument and in turn the argument degenerated into violence. You told police:
I followed her into the bedroom to try and say, “Listen, you know, do you realise what you’re gonna do to me? I don’t have friends, I don’t have family. You’re gonna put me out on the street where I - I’ve got nowhere to live.” She just told me to go and fuck myself again, and I basically grabbed her by the shoulders and I tried to get her to – to face me so she’d realise what it meant to me, and she just punched me in the face, and then I grabbed her round the throat and threw her to the ground, and I’ve just proceeded to choke her.
You elaborate the exact sequence of events somewhat differently elsewhere, but what is clear is that after argument you totally overpowered Ms Chow physically. I am satisfied from the statements that you made to police that you first forced her to the floor and then sat on her chest, pinning her arms to the floor with your knees. You then placed your hands around her throat and strangled her for some minutes. At some point before strangling Ms Chow you said to her ‘I am going to fucking kill you.’
When Ms Chow appeared dead you removed your hands from her throat, but then when you observed her chest was still rising and falling, and that she was making gurgling noises in her throat, you grabbed a pair of her underpants and stuffed them into her mouth as far as you could.
When Ms Chow continued to make noises you ripped out the cord of her mobile phone charger and wound it around her throat, pulled it tight and knotted it.
When you were satisfied she was finally dead, you had a cup of tea, smoked some cigarettes and got changed. In the course of this you said to yourself “Serve yourself right for treatin’ me like a cunt.”
You then presented yourself to Prahran Police Station and gave full and detailed admissions concerning Ms Chow’s death.
The reason you gave for killing Ms Chow, was that you were ‘…sick of being abused in our relationship, both physically and mentally…’ and ‘…sick of being threatened about being put out on the street due to my circumstances with Wendy, and it all came to a head this morning …’.
The pathologist’s report confirms that the probable cause of death was strangulation, resulting from the ligature ultimately applied by you. I accept your counsel’s submission that I cannot be satisfied beyond reasonable doubt that Ms Chow was conscious after the initial manual strangulation, but conversely of course the further strangulation is demonstrative of a sustained, brutal and vicious attack.
There are a series of aggravating circumstances associated with your conduct. First, I am satisfied Ms Chow was entirely within your physical power, given the difference in your respective physical sizes.
Secondly, you killed her in her own home, a place to which she had invited you back, trusting that you would treat her well.
Thirdly, this was not the first time you had employed physical violence against her and you had had previous occasion to reflect on the unacceptability of such conduct and its unlawfulness.
Fourthly, the termination of your relationship was an experience of a kind undergone by many, many adults. It was not a situation justifying or encouraging violence.
Fifthly, there is a disturbing lack of empathy in your description to police of what you did to Ms Chow and I am satisfied you acted as you did with no regard for her suffering.
Sixthly, your conduct involved protracted, brutal and deliberate violence. You were not satisfied with the initial manual strangulation which you inflicted, but persisted in the deliberate murder of Ms Chow with a ligature. I do not accept that you simply ‘snapped’ as your counsel submitted, if that term is meant to imply that what occurred was some momentary loss of control. This was an attack of sustained and deliberate viciousness.
It was submitted on your behalf that you were motivated in large part by love of Ms Chow. I reject this submission. You may have desired her and you may have sought the security of a long term relationship with her, but your actions were not those of love. Indeed it would be perverse to so describe them.
It was also put on your behalf that you were emotionally vulnerable to the threat of expulsion from the flat. I do not accept that such vulnerability is in any way a justification for what you did, but I do accept that for you the loss of both the relationship with Ms Chow and of accommodation at the flat, were confronting and challenging and that it was in the circumstances of this challenge that you responded as you did.
I turn then to your personal background. You are one of two children born to parents who separated when you were three. Your mother first took you to live with your paternal grandmother. In this household you were regularly beaten as was your sister. Further between the ages of approximately five and nine you were sexually abused by older children who lived at the premises. You were required to perform sexual acts upon them.
When you were 14 you moved to happier circumstances at the home of your maternal grandmother. When you were 17 your mother remarried and you left her to make your own way shortly thereafter.
This period in your life signalled the start of significant cannabis and alcohol usage, together with experimentation with other illegal substances. It also de‑stabilised the relationship that you had with your mother and commenced periods of extended estrangement from her. These occurred in a situation where you had no ongoing relationship with your father or other family.
At school you had been something of a loner. Nevertheless you completed Year 10 and went on to successfully undertake an apprenticeship with Ansett Airlines as a structural engineer. You worked for that airline with some interruption over a period of 13 years, until the business collapsed. Since then you have been employed in a shifting range of semi‑skilled and manual jobs.
When you were 25 you met a woman whom you married, but that relationship broke down dramatically shortly thereafter. The failure of your marriage rendered you emotionally vulnerable to fears of failure of subsequent relationships. In 2002 you formed a relationship with a woman named Kate. Both of you used illicit drugs and the two armed robberies were committed at a time when you were trying to support two adult drug users on a casual income. You broke with Kate by the end of 2004 and it seems that you then moved away from the use of cannabis to greater alcohol consumption and increasing use of ecstasy.
At the end of 2005 you met Ms Chow and commenced the relationship to which I have already referred. That relationship was as I have said, a turbulent one. You were using ecstasy and friction occurred between you over this and over financial matters. Both Ms Chow’s sister and her best friend describe frequent arguments, and refer to both you and Ms Chow as being strong‑minded personalities who would often clash.
Evidence was called on your behalf from Mr Patrick Newton, a forensic psychologist. His view is that your childhood experiences have left you with profound social deficits and that you are deeply conflicted about interpersonal relationships. On the one hand, you feel threatened by others and fear that you will be exploited, but on the other hand, you believe you will not be able to cope with the challenges of life without recourse to stronger and more dominant parties.
Mr Newton’s opinion is that your maladaptive traits are entrenched and he believes you have a psychological make‑up warranting the formal description of a personality disorder, with mixed borderline, anti‑social and avoidant features. In simple terms, as he put it in evidence, you have an inadequate personality. More fully he described your condition in evidence as follows:
…the borderline features which it encompasses are emotional volatility, superficiality of attachments; and oscillation between an approach and avoidance tendency within the interpersonal domain, that is to say, a quick change between what feels subjectively to him an intense connection with the individual and then rapidly alternating from that to an intense feeling of dislike or hatred for the individual. That has been evident across his relationships, as he informs me. Objectively, his relationship connections would be described as superficial, but subjectively to him they are experiences intense and pervasive so that he speaks in somewhat hyperbolic terms of his relationship attachments, but when you look at the actual conduct and nature of the attachments, the way in which he purports himself in relationships, it is a somewhat adolescent or superficial style of relating to the individuals involved. Those are the borderline features.
For the antisocial features, Your Honour, there's tendencies towards impulsivity towards alienation from society more broadly, towards risk taking behaviours. The avoidant features relate to a considerable need for acceptance or social contact, but in the context of a deep-seated fear of humiliation and rejection. Mr Piper wouldn't meet the criteria for a borderline personality disorder, antisocial personality disorder or avoidant personality disorder, but he has features, significant features, of each of those disorders and in combination a combined level of pathology in his personality is, in my view, sufficient to warrant a diagnosis of a personality disorder with mixed features of those personality sub-types.
In Mr Newton’s view your relationship with Ms Chow mirrored the personality instability he describes, reflecting both positive attraction and disturbance.
In turn he expresses the view that at the time of your final confrontation with Ms Chow you were stressed at the prospect of losing the relationship and by the practical consequences of being put out on the streets with limited resources. In turn, Mr Newton says and I accept that the fragility and general level of inadequate functioning that you manifest made the impact of that stress more intense than would be the case in a robust or psychologically stable individual.
Mr Newton records that you have expressed heartfelt sorrow for your actions and that you are preoccupied with rumination on your culpability and the gravity of your crime.
In mid 2008 you suffered a major depressive incident, involving self‑harm and requiring psychiatric treatment. You are still suffering residual symptoms of depression and are taking an anti‑depressant, which you find to be of considerable assistance.
In Mr Newton’s view you will be at heightened risk of further depression during incarceration and will require active monitoring and treatment. Further it is his view that you will require professional help to overcome the entrenched effects of your personality disturbance, to provide ongoing drug and alcohol counselling, and to address your depressive symptoms. It is his view, which I accept, that such treatment would be facilitated by provision for a relatively extended period of parole.
Ultimately I must impose sentences which reflect the gravity of your offending and express denunciation of your conduct.
The deliberate taking of another human life is an act which contravenes the most fundamental values of our society and calls for condign punishment. The woman you killed was dearly loved by her family and friends. In consequence you have inflicted upon them a loss and emotional pain which will remain with them for the balance of their lives. The victim impact statements which have been filed give voice to the tragic consequences of your acts. They are moving and eloquent documents.
I must also give weight to the fact of general deterrence. The taking of a partner’s life in the context of relationship breakdown, is a gross and recurrent blight upon our society. Those contemplating it must understand that the consequences of such killing will always involve very significant penalties.
In turn I must give weight to the issue of specific deterrence and the protection of the public. You have now committed three offences involving significant elements of threatened and actual violence. Further you come to the murder of Ms Chow in the context of an intervention order granted as a result of prior violence.
As against these matters, I must give due weight to your plea of guilty. I accept that it reflects remorse, albeit remorse formulated within the mental framework Mr Newton describes.
I also accept that your immediate response to the killing of Ms Chow was to go to the police and co‑operate fully not only with respect to the circumstances of her killing, but also with respect to the two prior offences to which you have pleaded guilty before me.
I further accept that your childhood experiences, subsequent history of failed relationships as an adult, and personality traits contributed to strong emotions when confronted with the breakdown of the relationship with Ms Chow.
I accept that the instability of your working life in association with drug use, also rendered you vulnerable if she expelled you from the flat. You had been reminded of this vulnerability in the period following the granting of the intervention order at the commencement of the year. It is likely this also added to your emotional state at the time of the killing as Mr Newton suggests.
I accept the submission of your counsel that, although you engaged in some homicidal ideation in the night before the killing, the killing itself was not a carefully premeditated act, but rather occurred in consequence of the final argument and confrontation that you had with Ms Chow.
Insofar as your present condition is concerned, I accept that since your arrest you have had an episode of major depression and that you remain vulnerable to depression and in particular vulnerable to a materially greater degree than that of the ordinary prisoner. In this respect it is likely that this will make incarceration more onerous for you than for the ordinary person.[1]
[1]Cf R v Verdins (2007) 16 VR 269.
Insofar as your prospects of rehabilitation are concerned I accept that you have the support of your mother and a friend and that you have re‑engaged in a potentially positive relationship with your father. I accept that you are seeking to rehabilitate yourself and that you have now busied yourself with employment in the prison environment. Whilst I am not prepared to go as far as Mr Newton and conclude that there are grounds for ‘guarded optimism’ as to your prospects of re‑adjustment to the community at large, I am satisfied that you are not without some prospects of rehabilitation. In this regard I am satisfied Mr Newton was correct to express the view that your ‘…maladaptive traits will remain prominent parts of [your] personality for the foreseeable future in the absence of significant and substantial comprehensive intervention…’. [2]
[2]T 49.
Ultimately it appears that such intervention is unlikely to be feasible unless and until you are placed on parole.
Putting these matters together I sentence you to:
· Two years imprisonment on Count 1 of armed robbery;
· Four years imprisonment on Count 2 of armed robbery; and
· Sixteen years imprisonment on Count 3 for the murder of Ms Chow.
I direct that one year of the penalty for Count 1 and two years of the penalty for Count 2 be served cumulatively upon the penalty for Count 3, resulting in a total effective sentence of 19 years imprisonment.
I fix a non‑parole period of 15 years.
I declare and direct that it be noted in the records of the Court that but for your pleas of guilty I would have sentenced you to a total effective sentence of 24 years and fixed a non‑parole period of 20 years.
I declare pursuant to s 18(4) of the Sentencing Act 1991 that you have already served a period of 232 days in custody and I direct that this declaration be noted in the records of the Court.
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