DPP v Turner [2009] VSC 409

[2009] VSC 409

CRIMINAL LAW - Sentencing - Manslaughter - Unlawful and dangerous act - Victim's eye penetrated with scissors in domestic struggle - Accidental injury - Victim died 2 weeks later, after multiple hospital admissions, from rare fungal infection caused by initial injury - Lower end of scale - Full co-operation with police - Youthful offender - Serious depressive disorder - Sentenced to 4 years imprisonment with non-parole period of 2 years

1 Raegan Turner, you have been found guilty by a jury of the manslaughter of David Dalgleish.

2 On 3 November 2007, you assaulted Mr Dalgleish, your former partner, and accidentally injured him with a pair of scissors, leading to the loss of sight in his right eye. He eventually died of complications from that stab wound, on 16 November 2007. He was 26 years old at the time of his death.

3 You met and began a relationship with Mr Dalgleish when you were 13. You had two children together: a daughter, born when you were 15, and a son, born when you were 17.

4 Your relationship with Mr Dalgleish was fairly volatile and intermittent, marked by episodes of fighting and violence, followed by periods of separation. At the time of the offence, Mr Dalgleish lived with his father in Pakenham, and you and the children lived with one of your sisters in Moe. Mr Dalgleish would come and visit you and the children on weekends, a process you hoped would lead to you getting back together.

5 It was on such a weekend that the incident occurred. On the evening of 3 November 2007, you, Mr Dalgleish, the children and some friends went to a local community bonfire. You all returned home at about 9 p.m.

6 Mr Dalgleish went across the road to drink with a neighbour, while you stayed at the house, drinking and listening to music with your sister and friends. At some point, you looked through Mr Dalgleish's mobile phone, which he had left at the house. You found a photograph of a woman's breast, which was tagged "Rachel". You became very angry and upset at the thought that Mr Dalgleish might be seeing Rachel, a former girlfriend, given that you were under the impression that you and Mr Dalgleish were trying to get back together.

7 Mr Dalgleish arrived back at your house shortly after you found the photo. You confronted him as soon as he opened the door, screaming and swearing at him. There was a short struggle in the hallway, with you pushing and shoving each other, and with Mr Dalgleish restraining you and, at one stage, holding you by the scruff of your neck at a safe distance. You were crying and yelling "How could you do this to me?"

8 You told Mr Dalgleish to get his stuff and get out and he started to pack up his belongings. You also gathered some of them and threw them out the front door, taking some of his CDs to the front porch and smashing them. He came back several times to gather up his things. On one such occasion, you threw a pot plant at him as he was walking away. You also rushed at him as he tried to collect his belongings from the front yard, leading him to retreat.

9 You went back inside the house and grabbed a pair of scissors that were on the coffee table in the lounge room. You went outside and ran towards Mr Dalgleish, with the scissors in your right hand. You pushed him in the back with both hands and, during a short struggle, you both fell to the ground, after tripping on something in the garden. At some stage, at or around the time you both fell to the ground, the scissors penetrated Mr Dalgleish's right eye, causing him to swear and jump up off you. The prosecution accepts that Mr Dalgleish's eye was injured accidentally.

10 You gave several explanations as to why you had grabbed the scissors. You said you wanted him to leave, but at the same time you didn't want him to leave. In your first record of interview, you said you didn't want to scare him with the scissors. In your second interview, you said you just wanted to scare him away. You said you weren't thinking, you didn't know what you were doing. Given the history of the relationship, and your emotional state on the night, I accept that you grabbed the scissors in a confused state, and with no intention of using them to injure him.

11 Nevertheless, running towards someone, pushing them in the back and scuffling with them, while holding scissors, is both unlawful and inherently dangerous.

12 Mr Dalgleish went across to the neighbour's house; you followed to check that he was alright. An ambulance was called and he was initially taken to Latrobe Regional Hospital. Given the seriousness of his injuries, he was transferred to the Eye and Ear Hospital in Melbourne. Despite surgery, the sight in Mr Dalgleish's right eye could not be saved.

13 Tests showed that the scissors had not only penetrated the eye, but also the orbital wall into the cranial cavity, penetrating the right lobe and causing some haemorrhaging in the brain. Expert medical opinion was that no further operation was needed, and the doctors expected the injury to the brain to heal itself. On 8 November 2007, four days after his initial admission, Mr Dalgleish was discharged.

14 Unfortunately, the injury did not heal itself. On 10 November, Mr Dalgleish attended Dandenong Hospital, complaining of a headache, neck pain and speech disturbances; he was examined and sent home. He returned the following day, presenting with weakness and speech disturbances. He was transferred to the Monash Medical Centre, where an MRI scan showed that he had suffered a stroke: death of brain tissue due to a lack of blood in part of the brain stem. The cause of the stroke could not be established at that time.

15 Mr Dalgleish's condition continued to deteriorate over the next few days, and he died on 16 November 2007.

16 A post-mortem examination found the cause of death to be complications from the eye injury. The main complication was the stroke, which was caused by a fungal infection that damaged Mr Dalgleish's brain stem.

17 The evidence disclosed two possible causes for the fungal infection. The first was due to direct implantation of fungus into the brain during the stabbing; the scissors had been used to cut up marijuana and there were still traces of vegetable material present, which could have caused the fungal infection. The second possible cause was that fungus was already present in Mr Dalgleish's sinus cavity, and was carried into the cranial cavity by the scissors penetrating that area.

18 Fungal infections in the brain are very rare and very difficult to diagnose. Mr Dalgleish showed no obvious symptoms of such an infection. Doctors do not ordinarily prescribe anti-fungal medication in a preventative way, as they would with antibiotic medication, because of the rarity of fungal infections and because of the serious side-effects of such medication.

19 The fungal infection in the brain was an unexpected and untreated complication of the stab wound to Mr Dalgleish's eye. Nevertheless, in reaching a verdict of guilty, the jury must have been satisfied beyond reasonable doubt that the injury you caused Mr Dalgleish was a substantial and operating cause of his death.

20 The maximum sentence for the offence of manslaughter is 20 years' imprisonment. The circumstances which may give rise to a conviction for manslaughter are, however, so various, and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases.[1] It is therefore necessary to have regard to the particular circumstances of the offence, and the factors personal to you, in determining the appropriate sentence.

21 You have been found guilty of unlawful and dangerous act manslaughter. The prosecution has conceded that, in terms of severity, it is towards the lower end of the spectrum of offences of this nature.[2] It was never the prosecution's case that you intentionally stabbed David Dalgleish in the eye with scissors.

22 I accept that this is very much towards the lower end of the spectrum. Grabbing the scissors, running towards Mr Dalgleish and scuffling with him, while still holding the scissors, were foolish and potentially dangerous acts, undertaken by you in an emotionally-charged state. But the actual injury to the eye was entirely unintended. And Mr Dalgleish's death, almost two weeks' later, after considerable medical intervention, was an unforseen consequence of that initial injury. This truly was "a tragic conjunction of events."[3]

23 In saying that, I do not ignore the fact that the injury occurred at the end of a series of events, which involved pushing and scuffling, and throwing a pot plant at him, as he attempted to retrieve his belongings.

24 It also remains the fact that the offence of manslaughter involves the unlawful taking of a fellow human being's life. Mr Dalgleish's father, Chris Dalgleish, has spoken in his victim impact statement of his enormous grief, pain and depression at the loss of his son, with whom he had a special bond. He is particularly distressed by the thought that his grandchildren will grow up without their father.

26 You were born in Morwell in July 1986 and have recently turned 23.

27 You were orphaned when you were 7, after your mother died from cancer and your father from a heart attack.

28 You and your two sisters went to live with your maternal aunt, who already had five children of her own to care for. This was not an easy transition, and you began using alcohol and marijuana at a young age. Your behaviour was disruptive, and there were problems with truancy and fights with your aunt, eventually requiring the involvement of the Department of Human Services when you were about 12. Thereafter, you spent periods of time alternating between temporary foster care and living with your aunt. However, even before your parents' deaths, DHS had been involved with your family, and you had experienced short periods of foster care.

29 You dropped out of school after year 7 and have never been employed.

30 You met and began a relationship with Mr Dalgleish when you were 13 and living in some sort of refuge. He was about five years older than you. You initially lived with him at his father's place. When you fell pregnant, around the age of 15, DHS became involved again and they moved you to your own place in Moe. You lived together on and off for five years, during which time your two children were born.

31 As mentioned earlier, your relationship with Mr Dalgleish was volatile and violent. Intervention orders were put in place, but were regularly breached.

32 Mr Dalgleish received a sentence of four months' imprisonment in February 2006, for damaging your house, but you attempted to live together again after his release. Your on-again, off-again relationship resulted in further offending and further breaches of intervention orders. Sometimes you involved the police, other times you chose not to contact them.

33 Mr Dalgleish was jailed again in February 2007, with an aggregate sentence of 13 months and a non-parole period of six months, for various offences, including assaults upon you. When Mr Dalgleish was released, once again you attempted to get back together, and he began to see you and the children on weekends, as was the case when these events took place.

34 As mentioned earlier, you started drinking and using drugs around the age of 12. Although you had previously experimented with marijuana, you became a regular user once you were with Mr Dalgleish. You began using amphetamines and gradually increased to regular intravenous use approximately three years ago. You have also injected yourself with crushed morphine tablets. Your alcohol usage escalated to the point where you were becoming intoxicated on a daily basis. However, it seems that you did not become addicted to drugs or alcohol.

35 At the time of the incident, you had drunk eight cans of bourbon over a period of roughly eight hours. You maintained that you were not intoxicated at the time of the offence, and that seems to be supported by the evidence of those who saw you on the evening.

36 The psychiatric report of Dr Lester Walton, prepared for sentencing purposes, noted that you told him that you had smoked 24 bongs of cannabis, although it is not clear over what time frame or what effect that may have had on you. There was no evidence led at trial about your marijuana consumption that day, and the police did not ask you any questions about it in either of your records of interview. In those circumstances, it is difficult to know what to make of this part of his report. However, I note that none of the witnesses suggested that you were drug-affected at the time of the incident.

37 Shortly after you learned that Mr Dalgleish had died, you were found significantly substance-affected and could not be roused. This ultimately led to DHS obtaining a protection order for the removal of your children. This was by no means the first time that DHS had been involved in relation to your children.

38 You have subsequently made some efforts to maintain a relationship and contact with your children, who are currently living in foster care in Sale. This has, of course, been difficult for you while in jail. Even when you are released from jail, it is likely that there will be considerable work for you to do, to convince DHS that you are ready to have the children back in your full-time care.

39 As far as your mental state is concerned, Dr Walton notes that at the age of 13 ½ you were admitted to the psychiatric unit of Traralgon Hospital, because you were "out of control." By the age of 16, you were increasingly afflicted by depression. You have been under the care of a private psychiatrist for the last two and a half years. You are being treated with a major tranquilizing medication, Seroquel, and an anti-depressant, Sinequan. Dr Walton has diagnosed you as having a chronic depressive disorder, which has waxed and waned in severity, not entirely independent of your substance abuse.

40 Dr Walton was aware that you had previously, at some unspecified time, been diagnosed with bipolar affected disorder. However, based on your description of the symptoms, he doubted the accuracy of that diagnosis. There is no other evidence before me as to whether or not you are currently suffering from bipolar affected disorder, or whether you were at the time of the offending.

41 Dr Walton described you as having lowish to normal intelligence, with no cognitive deficits, albeit ill-educated. He also described you as a damaged personality, having endured a tragic childhood with behavioural problems and poly-substance abuse.

42 Dr Walton's opinion was that mental illness factors did not play any meaningful role in your offending and the Verdins principles[4] would therefore not apply in your case. Your counsel urged me to reject this part of Dr Walton's opinion. I accept that whether and how the Verdins principles apply in a given case is, ultimately, a matter for the judge, not a psychiatrist, to determine. However, it must be determined having regard to the evidence. Even if I put Dr Walton's opinion to one side, there is no evidence which would enable me to conclude that your depressive disorder (or even bipolar affected disorder) played any or any particular role in your offending.

43 Even though there is no evidence that imprisonment is likely to cause any deterioration in your mental condition, I do accept that a person such as yourself, who suffers from a serious depressive disorder, is likely to find each day in prison more of a burden than would a person of normal health.

44 The question of remorse is not straightforward in this case. On the one hand, you showed immediate concern for Mr Dalgleish's condition, and have expressed some grief and sorrow at the loss of your former partner, who is also the father of your children. You have always indicated a willingness to plead guilty to a lesser charge than manslaughter; this reflects your view of the culpability of your actions. You cooperated completely with the police and made full admissions in the records of interview.

45 On the other hand, you are struggling to accept the full consequences of your actions. Dr Walton's report describes you as being in the grips of an acute stress reaction, with principal features of emotional numbness and a persisting sense of unreality. He states that you acknowledge that arming yourself with the scissors was a potentially dangerous decision, but, given your belief that the death was accidental, you fail to fully acknowledge that you behaved in a criminal fashion. Your response is quite understandable, given the circumstances of both the injury and subsequent death.

46 Between the ages of 14 and 16, you had 5 appearances in the Children's Court for offences including theft, property damage, unlawful assault, threatening serious injury and recklessly causing serious injury. The precise details of those offences are not known to me, but it seems that alcohol and drugs played a role in that offending. No conviction was recorded for any of those offences.

47 You have some outstanding charges relating to offences alleged to have occurred during 2007, which have been adjourned off until this matter is dealt with. They include possession and use of various drugs, intentionally and recklessly causing injury and assault. The assault-type charges apparently relate to incidents between you and female friends, not Mr Dalgleish.

48 There is no suggestion that you offended between the last of your Children's Court appearances in 2002 and the 2007 conduct.

49 You were initially charged with recklessly causing serious injury to Mr Dalgleish. When the charge was changed to murder, you were remanded in custody in February 2008. You remained in custody until you were released on bail in September 2008, after the charge had been reduced to manslaughter. You remained on bail until the jury returned their verdict on 30 April 2009. There is no suggestion of any further offending during those periods when you were not in custody.

50 Your age is a very relevant consideration in sentencing you. You were 21 at the time of the offence. You are now 23. The following general principles are relevant to the sentencing of youthful offenders:

(1) The youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where the matter properly arises;

(2) In the case of such an offender, rehabilitation is usually far more important than general deterrence. Rehabilitation benefits the community as well as the offender;

(3) A youthful offender should not be sent to an adult prison if such a disposition can be avoided, especially if he or she is beginning to appreciate the effect of the past criminality; and

(4) Even when an offender has previously been incarcerated, a shorter period of imprisonment may be justified than would ordinarily be the case.

51 Of course, those principles are not immutable, and due regard must be had in each case to other relevant matters, including the seriousness of the offence. In sentencing you, I am mindful of the fact that manslaughter is a serious offence.

52 I turn to consider your prospects for rehabilitation and questions of specific deterrence.

53 You are poorly educated and have never had a job. You became a mother at a very young age, and have obviously struggled with that role, with few supports, in the context of a difficult, on-again off-again relationship.

54 Although the Children's Court ordered on a number of occasions that you should attend alcohol and anger management counselling, there is no evidence that you did in fact do so.

55 Substance abuse and anger management also seem to have caused significant problems in terms of your care of the children and your dealings with DHS.

56 In May 2008, after you had been charged with murder, I refused a bail application by you, on the grounds that exceptional circumstances had not been shown. As my reasons for refusing bail reveal[5], at that time, based on your past history, I was pessimistic about whether you were willing and able to address your problems of substance abuse and anger management.

57 However, your subsequent behaviour has caused me to be more optimistic about your capacity to change your ways. In September 2008, you were granted bail. During the eight month period between then and the conclusion of this trial, you were subject to random drug and alcohol testing as a condition of bail. You did not return a positive test for either, which was surprising and very much to your credit, given your past history of substance abuse. It is even more remarkable, given that you would have been under the great stress of having this trial ahead of you. Nor did you commit any further offence during that period.

58 This offence is the first time you have been in prison. It has hopefully given you an opportunity to reflect on where your life may be heading, unless you take very serious steps to address your problems with alcohol, drugs and anger management. I believe that you have the ability to address those problems, as demonstrated by your recent behaviour.

59 I also bear in mind that, as mentioned earlier, your various Children's Court appearances as a troubled teenager were disposed of without conviction, and you managed to remain out of the criminal justice system between 2002 and 2007.

60 Whilst there is clearly some risk of you behaving aggressively in the future, particularly if you do not address your substance abuse and anger management problems, the need for specific deterrence in this case is not as important as the need to promote your rehabilitation, particularly having regard to your age and the circumstances of the offence.

61 There is some need for general deterrence, in that people should be deterred from assaulting other people while holding sharp objects, particularly when they are in an emotionally-charged state. However, the need for general deterrence in this case is less than in many other cases of manslaughter, given the accidental nature of the injury and the rare and unexpected cause of death.

62 There is also a need for an element of punishment in any sentence.

63 I have concluded that it is appropriate to order a shorter period of imprisonment than might otherwise be thought justified. I have come to that conclusion having had particular regard to the following matters: your age; your history; the likely effect of the depressive disorder on your imprisonment; the absence of any intent to injure Mr Dalgleish with the scissors; the circumstances surrounding Mr Dalgleish's death; and the prosecution's acceptance that this offence is towards the lower end of the scale. The community, as well as you, will benefit from a sentence which promotes, as far as is possible, your rehabilitation. To say that, is not to ignore the fact that somebody died, tragically and accidentally, as a result of your actions.

64 Given your unfortunate childhood history, and notwithstanding your aunt's attempts to care for you, you have not really had an ongoing, mature figure present throughout your life to give you guidance. In my opinion, your prospects of rehabilitation will be improved if you are subject for some time to the supervision and control of the Parole Board. For that reason, it is appropriate to order a longer period of parole than might otherwise be appropriate, to provide an opportunity to achieve rehabilitation, to turn away from the path which you have been taking.

65 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, I have concluded that you should be sentenced to a period of imprisonment of 4 years. I fix a period of 2 years as the period you must serve before becoming eligible for parole.

66 I declare that the period to be reckoned as already served under the sentence is 345 days, inclusive of today's date, and I direct that there be noted in the court's records the fact that the declaration has been made and its details.

[1] I am aware of and have had regard to the observations of the Court of Appeal in R v AB (No 2) [2008] VSCA 39, concerning the need for sentencing practices for manslaughter to take account of the increase in the maximum penalty from 15 to 20 years.

[2] The learned prosecutor suggested that a head sentence of five or six years, and a minimum term of three to four years, would be an appropriate sentence for you.

[3] To adopt the language of the Court of Appeal in DPP v Lovett [2008] VSCA 262 at [32].

1. [4] R v Verdins (2007) 16 VR 269; [2007] VSCA 102.

[5] [2008] VSC 193.