R v Drummond [2012] VSC 505

3 You and Ms Teusner separated shortly before 27 May 2011, the day on which she had been involved in a motor vehicle collision when her car was struck by a truck. It appears as a result of that collision that she suffered a soft tissue injury to her lumbar spine and thoracic region, and she attended upon her general practitioner, who prescribed analgesics and ordered X-rays. Four days later, Ms Teusner attended at the Ballarat Base Hospital still complaining of pain. You and she had reconciled shortly after the accident, but on 5 June 2011, after an argument, Ms Teusner told you to leave her home at 11 East View Court, Sebastopol, and you then returned to live at Reid's Guesthouse in Lydiard Street, Ballarat. The following day, you reconciled and returned to live at the East View Court address.

4 On 6 June 2011, both you and Ms Teusner were picked up by Ms Teusner's stepfather and his wife, Mr and Mrs Lawrie. They drove the two of you on several errands, and it was said that you and Ms Teusner appeared to be friendly towards each other. After the errands, you and Ms Teusner returned to the house at East View Court and you both began drinking. It is said that you drank quickly and consumed approximately a dozen Vodka Cruisers in three hours and, as a result, Ms Teusner asked you to slow down your drinking, and you replied, "Aren't I even allowed to have a drink now?". After that, the Lawries left the house.

5 On 7 June 2011, Mr and Mrs Lawrie again collected you and Mrs Teusner to run errands relating to the car accident, including taking Ms Teusner to the physiotherapist. During this consultation, Ms Teusner complained to the physiotherapist that she had been bickering with you. You asked to be taken to Reid's Guesthouse to collect your belongings, and after doing so, you met with Ms Teusner and the Lawries, and you were described as being in a "foul mood".

6 You and Ms Teusner began arguing but, despite this, all four of you attended at a bottle shop and purchased a slab of Vodka Cruisers and, at approximately 2.00pm, returned to 11 East View Court and started drinking. Shortly afterwards, Mr Lawrie left to collect his son from school, but Mrs Lawrie remained at Ms Teusner's request. Later, Mr Lawrie returned to the house with his son, and then all the Lawries left. At this time, it was estimated that Ms Teusner had had about four Vodka Cruisers, and that you had consumed over 12.

7 At about 6.30pm, Ms Teusner's brother, Darren Teusner, came to the house to collect some money from you. He observed you to be intoxicated, leaning on the kitchen bench, losing your balance and, at one stage, falling onto another part of the kitchen bench. He saw a number of stubbies and cans and a bong on the kitchen bench. He left at about 7.55pm. A short time later, Sharni Daniel walked from her bedroom to the kitchen. She described her mother then as tipsy, and you as extremely drunk. She said you struggled to keep your balance and moved back towards the garage door, falling against the wall as you did so. At this point, you said to Ms Teusner to "go root Barry", a reference to her former partner, and then you and Ms Teusner went into the garage and Sharni returned to her bedroom.

8 At about 8.14pm, Ms Teusner spoke to Darren Teusner on the phone. She sounded upset and asked him to come to the house. She complained that you were "knocking her around" and asked her brother if he could hurry. Mr Teusner could hear on the phone in the background you saying, "That it had better not be the fucking cops", and he heard his sister say to you she would not do that to him. After this, she again asked her brother to hurry.

9 After a period of time, Sharni Daniel heard a bang coming from the direction of her mother's bedroom. She went to the bedroom and saw you kneeling on top of Ms Teusner, who was lying on her bed. You had one hand on her throat and one hand on her shoulder. You appeared angry and Ms Teusner was saying, "Go on, hit me then". Sharni yelled at you to get off and you responded to Sharni, saying that she was a piece of shit, but you did get off and then you approached Sharni, so Ms Teusner jumped off the bed and came between the two of you. You then grabbed Ms Teusner by the throat with your right hand and pushed her up against the wall and used your left hand to punch her hard to the jaw area.

10 Ms Teusner was trying to free herself from you and threw her mobile phone in the direction of her daughter and told her to call the police. Sharni then walked through the house, into the backyard and rang 000, and as she did, she could hear banging coming from the direction of the garage. She ran back to the house and went to the garage door and saw you forcibly push her mother onto a couch. Sharni continued to walk out the front of the house and onto the driveway. She there met a friend who had arrived to drop off your wallet, which had been found at a nearby store. She took the wallet and returned to the house and went into the garage, and she there saw that you and her mother were still arguing and that her mother was standing beside the couch with a bleeding lip, complaining, "He's fucking hit me". She went to help her mother, and you left the garage. There was blood dripping from Ms Teusner's mouth and Sharni decided to call the police again. She walked into the backyard to do so and, while on the phone, moved to a position where she was able to look through the door of the garage and saw her mother now lying on a different couch. She could see that her head and shoulders were on the armrest and that you were sitting on top of her. You had your left hand around her throat and a pool cue in your right hand which you held above your head. You were angry and yelling at Ms Teusner. On seeing this, Sharni ran back around the house, through the kitchen and hallway and onto the street, all the while talking to the 000 operator. She could hear her mother yelling out her name loudly, but eventually that stopped.

11 Sharni was extremely concerned. She ran back to the house and entered the garage and saw her mother's legs and one of her arms hanging off the couch with a blanket covering her head, shoulders, torso and top of her legs. She lifted the blanket and saw that her mother was face down on the couch. She turned her face and saw that her mothers' mouth was open, with blood coming from it. Ms Teusner appeared to her to be unconscious, choking and trying to breath. Her lips were swollen. Sharni went back into the kitchen where you standing at the kitchen bench, making another drink.

12 Sharni left the house and waited outside and, at approximately 8.25pm, the police arrived. You opened the door to them. You were mumbling and appeared intoxicated. You refused to come outside at the police request and went back inside to the kitchen and made a cup of coffee.

13 The police were directed to the garage, where they located Ms Teusner face down on the couch. She had blood all over her face and was groaning loudly. The police returned to the kitchen and spoke to you again. Again you refused to leave the kitchen and the police arrested you and because of your behaviour, sprayed you with capsicum spray. You continued to resist the police and you were forcibly handcuffed and eventually transported to the Ballarat Police Station.

14 At 8.39pm, the paramedics attended and commenced treatment of Ms Teusner. On initial examination she had no pulse and was not breathing. She was conveyed to the Ballarat Base Hospital and a CT scan revealed extensive subarachnoid bleeding. Neurosurgeons at the Alfred Hospital were consulted. They reviewed the scans and formed the opinion that Ms Teusner's injuries were not survivable and that neurosurgical intervention would not assist. At 4.57pm on 9 June 2011, Ms Teusner died at the Ballarat Base Hospital.

15 A post-mortem examination determined that the cause of death was ischemic brain injury and cardio respiratory arrest complicating acute subarachnoid haemorrhage in the setting of blunt head trauma. Examination of Ms Teusner's head demonstrated a laceration to the chin, as well as multiple bruising, including to the region of the left ear, the deep soft tissue at the right cheek, the deep scalp over the front of the head and in the right temporal muscle. In addition, there were abraded lacerations to the lips and bruising to the inside of the mouth, injuries said to be as a result of blunt force trauma. The concentration of such significant blunt force injuries in the region of the head, the pathologist opined, was very suggestive of directed blows in this region.

16 On Wednesday 8 June 2011, that is, prior to the death of Ms Teusner, a record of interview was conducted at the Ballarat Police Station. In that interview, you stated that you had been arguing with Ms Teusner and she had kept telling you to hit her, and that she started pushing you and that you imagined you hit her, although you could not recall doing so (Q38). You told the police that Ms Teusner had decided that she wanted you to move in with her because she could not cope on her own (Q52) and that was the reason that you checked out of Reid's Guesthouse. You admitted that on the day you had consumed four or six Vodka Cruisers and some rum, and also stated that Ms Teusner was becoming irate with you, and you believed you punched her in the mouth and that she was responsible for scratches on your face (Q143). You assumed that you hit Ms Teusner when she was on the couch because of the presence of blood, but your recollection was hazy, and you thought that Ms Teusner had taken a swing at you. You had no recollection of the events after you say you left the shed (which you referred to as the garage) having seen Ms Teusner sitting on the couch with blood on her face. You denied using a billiard cue to assault her. You stated that you adored Ms Teusner and denied that the relationship was violent, apart from an occasion when you said Ms Teusner broke your ribs. You also told the police that you were on anti-depressants and you suffered from post-traumatic stress disorder. You acknowledged that you had a drinking problem, which you said in the past had been serious.

17 You were charged then with intentionally causing serious injury, but after Ms Teusner's death and on 22 August 2011, you were charged with the offence of manslaughter. You formally acknowledged an intention to plead guilty in March of this year, thus obviating the need for a committal and thereby relieving family members and witnesses the ordeal of giving evidence.

18 Victim Impact Statements of Sharni Daniel and Kylie Daniel, Ms Teusner's two daughters, were tendered in evidence as Exhibits B and C respectively. Also tendered in evidence was the Victim Impact Statement of Ms Teusner's sister, Cheryl Barkla, Exhibit D, and the Victim Impact Statement of Scott Saunders, Kylie Daniel's partner, tendered in evidence as Exhibit E. Each of those Victim Impact Statements, and particularly those of Ms Teusner's two daughters, Kylie and Sharni, are eloquent expressions of the grief and loss suffered as a result of Ms Teusner's death. No sentence this Court can impose can restore to Ms Teusner's loved ones their loved mother, sister and mother-in-law, nor can it ameliorate their sense of grief and loss.

19 I turn now to your personal circumstances. You are 46 years old and have admitted seven prior convictions from five court appearances between 1997 and 2011. Your prior offences, apart from exceeding the prescribed concentration of alcohol and careless driving, may all be said to varying degrees to be offences of violence but, in particular, you have in the past been convicted in respect of one charge of recklessly causing serious injury and two charges of recklessly causing injury. You have on two occasions been sentenced to terms of imprisonment, one of which was partially served, and this present offence occurred during the operational period of a suspended sentence. It appears that your prior convictions have all occurred when you have been affected by alcohol, which was also undoubtedly the case here.

20 Your personal circumstances and antecedents are detailed in particular in the reports of Mr Jeffrey Cummins, psychologist, dated 3 May and 25 June 2012, which were tendered in evidence as Exhibits 1 and 2 respectively and a letter from your mother, Kathleen Drummond, dated 20 September 2012 also tendered in evidence as Exhibit 11. You are the youngest of seven children. Your parents separated when you were four. You attended Doveton Primary School and then completed your primary schooling in Colac, where your mother and the three younger children had relocated. You left Colac High School without passing Form 3.

21 Your mother's testimonial also detailed your family life, confirming the ultimate separation of your parents and your early life and education at Colac. She confirmed that, while at school, one of your classmates committed suicide and that later, when you had left school and were working firstly in a hardware store and later in a timber mill, a lad who used to come to your home also took his own life. You did not receive any counselling for these traumas. Ultimately, at the age of 19, you joined the Australian Army and you were discharged some three years later. While in the Army, you had married and you have a son, Zack, aged 25. You have another son, Clay, now aged 12, from yet another relationship, but with whom you have no ongoing contact. After the Army, you worked in a chemical plant in Dandenong for approximately five years, which appears to have been the longest period of stable employment. Throughout the years, you have variously worked as an unskilled worker interstate and in regional Victoria and, at the time of this offence, you were working part-time as a car detailer.

22 You reported to Mr Cummins that while holidaying in Darwin in 1995, you were stabbed in the elbow and three times in the back, which injuries were not physically serious, but which you said had led to ongoing mental health problems and you reported a diagnosis two years later of post-traumatic stress disorder, for which you were prescribed anti-depressants and for which you receive a disability pension. You reported being hospitalised at Larundel Psychiatric Hospital on perhaps two occasions around 2000 and 2001 in relation to incidents of self-harm. You have smoked cannabis since you were 15, and your alcohol consumption is such that Mr Cummins was of the opinion that you have been suffering from alcohol dependence over many years and that you are inclined to minimise the role of alcohol in your life and in your offending behaviour, and in his opinion, you are at an early stage in terms of accepting that you have a history of committing offences of violence. Mr Cummins has assessed your IQ as between 108 and 116, which falls within the above average category. In his opinion, you do not present as being psychotic or schizophrenic, although your history suggested that you may have an antisocial personality disorder. Mr Cummins was of the opinion that you may have an alcohol induced acquired brain injury, but as funding was not available for an MRI, this was not able to be confirmed. Mr Cummins was also of the opinion that, at the time of reporting, you were still at an early stage in the process of accepting that your actions had caused Ms Teusner's death. You maintained you had no recollection of specifically assaulting Ms Teusner, but you had a vague recollection of feeling frustrated with her because she had become dependent upon you since the accident. You nonetheless expressed your remorse to him.

23 Associate Professor Warwick Brewer, a neuropsychologist, gave evidence on the plea and his reports dated 20 June, 23 June and 3 September 2012 were tendered in evidence. Associate Professor Brewer explained the variants obtained in sub-testing that he performed. It represented, he said, a reduced functioning of the executive level of the brain in respect of your verbal memory relative to your overall intellect. He related this reduction, which he described as a low normal function of your verbal memory, to your emotional distress, which he also described as "unexpressed emotion", cannabis use and depression, which was the manifestation of your distress, and your significant alcohol consumption. Nonetheless, you still have a functional memory and he attributes your lack of memory on this occasion to intoxication by alcohol. This deficiency, such as it is, does not affect your daily life, nor the rigours of life in custody, nor your ability to engage in programs designed to assist your rehabilitation. Indeed, he described you as being highly intelligent.

24 Mr Danos, who appeared on your behalf, submitted that your offending occurred in the context of significant psychological problems and the fact that you resort to violence when drunk is a manifestation of the problem, and for these reasons, the principles of R v Verdins do apply. I do not accept these submissions. Neither expert suggested that you have any serious or even significant cognitive deficits or impaired mental functioning, nor do you have a serious mental illness or any condition which might properly attract the principles of Verdins' case. Although the incidents in your earlier life have been traumatic and have not been appropriately and adequately dealt with by you, with or without professional assistance, the reality is that although you could not and cannot now proffer an explanation for your conduct on this night, you would have known, as is confirmed at least by your prior criminal history, that when you get drunk, you are inclined to resort to serious violence, and that is what occurred on this occasion. This aggravates your offending conduct. Nonetheless, I accept that you present with these aspects of your personality and that you have been assessed by Mr Cummins as being at least moderately depressed. But these matters do not, in my view, establish a sufficient nexus with the offending conduct so as to warrant a reduction in the weight properly to be given to considerations of specific and general deterrence, and nor do they operate to reduce your moral culpability for the offence, or impact upon the way in which you would serve your sentence. Indeed, given your prior criminal history, considerations of specific deterrence carry considerable weight.

25 Various testimonials, including that from your mother, were tendered on your behalf. Your mother speaks of you as considerate and patient, and continues to love and support you. You have resumed contact with your eldest son, Zach, and your previous partner, Pamela Bamford, continues to visit you regularly and continues to love and support you. Rodney Highgate, who has known you and your family since 1982, described you as conciliatory and considerate "without exception", and Malcolm Johnson regards you as very intelligent, well read and a good friend. Clearly, qualities which come to the fore when you are not drinking to excess.

26 A report from a drug and alcohol counsellor was also tendered in evidence as Exhibit 5. That report recorded that you attended for an assessment on 17 May 2011, reporting a significant history of alcohol abuse, which had been a factor, you said, in your recent separation from your partner. You attended one further appointment with the service before these events intervened. You also told Mr Cummins that you had previously participated in an anger management course and would be prepared to do such a course again.

27 The maximum penalty for the crime of manslaughter is 20 years' imprisonment, and clearly, Parliament regards it as a serious offence. On this occasion, although you did not intend to kill or to inflict really serious injury to Ms Teusner, for were it so you would have been charged with murder, you nonetheless did engage in a sustained and severe assault on Ms Teusner, whom you knew to be somewhat incapacitated by her injuries, which assault appeared to involve the use of a billiard cue, such assault occurring in her own home and in the presence of her then 15 year old daughter. Further, you moved back in to Ms Teusner's home to care for her because she was unable to cope as a consequence of the recent car accident and, indeed, you professed to adore her, circumstances in which she might expect, despite the volatility of your relationship, to ensure her safety and comfort. In these circumstances, the offence here committed is a serious example of the crime of manslaughter.

28 In sentencing you, I take into account your plea of guilty and the time at which you acknowledged such plea and give you a discount for it. I take into account also that, by pleading guilty, you have saved the community the expense of a trial and Ms Teusner's family and witnesses the ordeal of one. I take into account also that, by pleading guilty, you have facilitated the administration of justice.

29 I take into account that you have expressed remorse and regret for having killed Ms Teusner, whom you told Mr Cummins you loved. I take into account also that you are beginning to acknowledge the role of alcohol and, indeed, anger in your life and you are prepared to take the appropriate steps to address these issues. I take into account also that you have resumed your relationship with Ms Bamford, who continues to love and support you, as does your mother. In these circumstances, while one must be guarded about your prospects for rehabilitation, it is not without hope, especially if you obtain the appropriate therapeutic counselling and abstain from alcohol. I take into account also that you have been chronically depressed. As to the post-traumatic stress disorder, that does not appear to be independently verified, although I note that you are in receipt of a disability pension in respect of this, but I do take into account that your mental state in the past has required medication and some ten years ago, hospitalisation, and that there are outstanding emotional issues to be dealt with. In short, I take into account all matters which go in your favour, including that through your Counsel you proffered a sincere apology for having caused Ms. Teusner's death.

30 Against these matters stands the nature and gravity of the offence here committed; a serious, sustained and violent attack involving the use of a billiard cue on a woman whom you professed to love, resulting in her death, committed in her home where her young daughter was present. Any sentence imposed must also act in denunciation of your conduct and serve to punish you. It must also give considerable weight to specific deterrence, especially where you have relevant prior convictions and where previous dispositions, including sentences of imprisonment, have failed to deter you from re-offending in a like manner. Indeed, as did the sanction of a suspended sentence to which you were then subject and which had been imposed less than two months earlier. Further, any sentence imposed must also signal to others in the community that such acts of violence resulting in death is not tolerated or condoned and will attract salutary and condign punishment.

31 Accordingly, for the crime of manslaughter, you are convicted and sentenced to 10 years' imprisonment. In order to address your prospects for rehabilitation, guarded though they be, I propose to order that you serve a period of 7 years' imprisonment before becoming eligible for parole. I declare that you have already served a period of 493 days of pre-sentence detention. I declare, pursuant to s 6AAA of the Sentencing Act that, were it not for your plea of guilty, that being only one of the aspects relevant to the sentencing process, I would have otherwise sentenced you to a sentence of 12 years' imprisonment with a non-parole period of 9 years' imprisonment.