R v Leonboyer
[1999] VSC 422
•5 November 1999
SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION Do not Send for Reporting Not Restricted
No. 1488 of 1998
DPP
v
MICHAEL ERICK GONZALEZ LEONBOYER
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JUDGE: | Cummins, J. | |
WHERE HELD: | Melbourne | |
DATE OF SENTENCE: | 5 November 1999 | |
CASE MAY BE CITED AS: | DPP v. Michael Erick Gonzalez Leonboyer | |
MEDIA NEUTRAL CITATION: | [1999] VSC 422 | |
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Criminal law – murder – sentence – defence of automatism – dissociation – domestic killing – lack of premeditation – accused postgraduate law student – considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. C. G. Hillman and Mr. R. J. Barry | Office of Public Prosecutions |
| For the Accused | Mr. C. L. Lovitt Q.C. and Mr. B. M. Young | Lethbridges |
SENTENCE
HIS HONOUR:
Mr Leonboyer, you have been found guilty by a jury of the murder at Carlton on 6 May 1997 of Sandra Morales. At the time of her death, Ms Morales was but 19 years of age. She had her life before her. Her family are grievously afflicted by her loss. Ms Morales was born in Colombia on 11 January 1978. With her sisters – her mother having earlier come here – she came to Australia in May 1993. The family made Australia their permanent home. Ms Morales attended secondary school here in Melbourne and was a student in Year 11 at the time of her death. Shortly after arriving here she met you. You were five and a half years older than she. You were born on 10 July 1972 in Chile and came with your family to Australia when you were two and a half years of age. Your family also had made Australia their permanent home. You had assiduously applied yourself to your studies and after completing your secondary education were awarded a scholarship to study commerce and law at Bond University, Queensland. You had graduated with degrees in commerce and in law from that University, had returned to Victoria and had undertaken the post-graduate degree of Master of Laws at Monash University. You were within six weeks of completing that degree when you killed Ms Morales. You had intended to pursue your academic studies to the level of a Doctorate of Philosophy in law before, you hoped, becoming admitted as a legal practitioner in this State. At the time of Ms Morales’ death you were almost 25 years of age.
Shortly after you and Ms Morales met, you and she commenced a relationship. She was living with her family in Essendon and then Maribyrnong; you were living with your family in Carlton. You and she became engaged on her eighteenth birthday, 11 January 1996. Often thereafter she stayed with you at your family home, or you with her at hers. The relationship between you was a passionate and uneven one. You showed solicitude for her bettering her education, and especially improving her English; but you also sought to dominate and control her. Within a year, Ms Morales broke off the engagement. She returned to live permanently with her family. You sought to re-establish the relationship. You wrote to her, sent her flowers and love songs, and succeeded in re-establishing an at first occasional relationship together. You and she slept together on a number of occasions. You both went to Phillip Island for Easter 1997 but because of your conduct towards her Ms Morales insisted upon returning home after one night. You continued your attentions towards her. Unknown to you she had during the period of your break-up commenced having a relationship with an older man, Fernando Gonzales. Ultimately, your attentions were successful and you and she decided to take an apartment together in St. Kilda, and for you upon the imminent completion of your Master of Laws to postpone your Doctorate and to obtain remunerated employment. Thus it was that on Monday, 5 May 1997 you met Ms Morales here at the Supreme Court Library and together went to St. Kilda where you entered a lease for an apartment in St. Kilda. You and she were seen by others to be blissfully happy together. You bought her clothes in Ackland Street and you dined together. On the way home she had a pregnancy test which was negative. You both returned to Carlton in the evening and with your family watched television and lovingly sat together. She fell asleep on the couch; you nodded off also. She retired to your bedroom after 10.30 pm and you followed about half an hour later. A short time later – about five minutes – a loud female scream was heard from your bedroom. Your family rushed in. You were lying on your bed staring at the ceiling and Ms Morales was on the floor. You had stabbed her 25 times with a knife. She died the next day.
Some things can be demonstrated physically to have occurred in the bedroom. You had taken a knife, usually kept in a closed position, and fatally stabbed Ms Morales. Nearly all the wounds were highly directional and were inflicted from behind. There were nine stab wounds to the head, being eight to the skull and one to the right ear. The wounds to the head were some four to five millimetres in depth and did not penetrate the skull. There were twelve stab wounds to the centre of the back, four of which penetrated the right lung and three of which penetrated the left lung. There was an incised injury to the groin, to the right upper arm, and to the left elbow. There was probably also an incised injury to her left breast (which was overlaid by surgical intervention in the medical attempt to save Ms Morales’ life). Although Ms Morales was conscious when the family rushed in – indeed she stood and took two steps unaided before falling – and was immediately taken by ambulance to the nearby St Vincent’s Hospital, Ms Morales died the next day. (Thus the charge of murder is expressed to have occurred on 6 May 1997). Upon autopsy the cause of Ms Morales’ death was found by the pathologist to have been blood loss secondary to multiple stab injuries compounded by the collection of blood and air within the chest cavity.
Although you had attacked Ms Morales with a knife and had repeatedly stabbed her, on her hands and arms there were no defence injuries. Not one. You took her by surprise.
Ms Morales had had sexual intercourse with you on the Saturday night, 3 May 1997 and with Mr Gonzales on Sunday 4 May. At autopsy, a vaginal swab revealed the presence of semen of each of you.
Other things can be demonstrated analytically to have occurred in the bedroom. You have twice given false evidence about what occurred. You have said that when you went into the bedroom you raised with Ms Morales a topic which had been discussed briefly between you earlier in the day, namely relationships of members of her family splitting up, and that you said to Sandra “You’re not concerned about that happening to us; we’re different, aren’t we?” That Sandra replied “I’m not sure we are”. That you then said: “What do you mean?” That Sandra said she did not love you any more. That she had been seeing someone else. That you said: “What are you trying to say? Are you having sex with him?” That Sandra then suddenly announced in anger that she could fuck anyone she wanted to fuck, she had been fucking somebody else, and that (spoken in Spanish) he did it better than you did. You gave evidence that you remembered nothing further until after the stabbing apparently had occurred. At trial the prosecution contended that what had occurred in the bedroom was that Ms Morales, after a loving day and on the threshold of a new life with you together in the apartment at St. Kilda, told you that she had had another relationship in order that you and she could go forward on a truthful footing. Whatever she said, it is demonstrated that your account is false. When Ms Morales spoke to you, she was undressed, in your family home, with your mother and siblings at hand, on the sixteenth floor of an apartment block at nearly midnight and with no transportation of her own. She did not taunt and deride you. She and you had lovingly been together the day and night long. A month later you told a friend that Ms Morales had told you “She’d been having an affair.” At trial your evidence – that she said angrily to you “I’ll fuck whoever I want to fuck” and “He did it better than you” – was an attempt by you to avoid or reduce your legal liability for your actions: either as a foundation for unconscious and involuntary conduct by you (involving complete acquittal) or for provocation (involving reduction of murder to manslaughter). On the evidence the jury found proved beyond reasonable doubt that your actions in fatally stabbing Ms Morales were voluntary and conscious. As a matter of law, for the legal reasons I stated in Ruling no.4, provocation does not here arise. You are not to be punished for your untruthful evidence and you are not. The relevance of stating what I have stated is twofold: to remove the slur on Ms Morales that you have sought to perpetuate as her final words; and as a delimitation of the remorse you are said to feel for your victim.
There is a substantial history of your seeking to dominate and control Ms Morales. When on the fatal night she told you that she had had an affair, you in a rage killed her because she had exercised her independence in a way you would never accept. There is no lawful excuse for your deadly conduct. After I had ruled as a matter of law that provocation did not arise in this case, your senior counsel spoke (Transcript, p.1229) of “political correctness”. That wearying cliché has no place in the legal lexicon; nor is its perverse logic any substitution for the fundamental premise of the criminal law – the respect for human life. The most fundamental right is the right to life. The law does not excuse from liability the murderous conduct of a man who in anger cuts down a woman because he is told of her infidelity.
An aggravating factor is that the crime you committed was in the home. Ms Morales came into your home believing it was a place of safety. She was entitled to rely upon that belief. Instead of offering her the protection of your home, you killed her there.
A number of things stand in your favour on sentence. First and importantly, your crime was not premeditated. That sets your case apart from those cases which involve contemplation and planning and it significantly reduces the sentence I otherwise would have imposed upon you. You committed the crime in a state of emotion, not as a consequence of calculation. The psychiatric and psychological evidence establishes that you were a rigid, possessive, controlling person with an idealised worldview especially of your relationship with Ms Morales and of your future together. Second, you have significant prospects for reformation. You are comparatively young and I take into account the psychiatric and psychological evidence led on your behalf in that regard. Third, you have no prior convictions. Again, that is an important matter. At trial, sensibly your character was not put in issue because of the forensic difficulties that would have caused you by reason of your prior oppressive conduct towards Ms Morales. But you have no prior convictions. Fourth, you have had an afflicted upbringing by reason of your father’s violence and abuse over many years since your birth. You had a traumatic episode with your father but three weeks before 5 May 1997 which affected you. Fifth, you have a long and commendable history of study, with all the self denial that that involves, and you had an overall aim to make a worthwhile contribution to society. Your ultimate goal – to be a legal practitioner – is now denied to you. Sixth, you have had the burden of a very lengthy period of uncertainty as to your fate, including two trials, and I take into account the oppressive quality of that period, as well as its quantity. Finally, you have remorse for your actions. However, the remorse you have is not full remorse. I have already stated that it is delimited by the evidence you have twice given about Ms. Morales. Even on the day of her death, your demeanour in the Homicide interview exhibit “J” betokened a ready preparedness to seek to blacken the family of the deceased, accusing as you did one member of “statutory rape” (answer 205). Indeed your alertness in responding to questions about others – so evident on the video – stands in contrast to your recalcitrance about your own actions. Your counsel on plea submitted that your sentence should be significantly reduced because on the evidence it was clear that your fatal actions were committed in a state of significant dissociation albeit (on the jury’s verdict) short of automatism. I do not agree. You knew what you were doing when you did it.
I take into account in reduction of sentence the matters I have stated.
General deterrence and reformation are the pre-eminent, competing, principles in sentencing which apply in your case. Punishment is relevant. Special deterrence is of least relevance.
You have served 914 days in pre-sentence detention. Pursuant to s.18 (4) Sentencing Act 1991 I declare that period of 914 days as already served under the sentence I impose and I so certify.
Mr Leonboyer, for the murder of Sandra Morales I sentence you to 18 years’ imprisonment. I direct that you serve a minimum period of 14 years before becoming eligible for parole.
Mr Leonboyer may be removed immediately.
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