Regina v David Bradley Leonard

[1999] NSWSC 510

CITATION:	Regina v David Bradley LEONARD [1999] NSWSC 510
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	70022/98
HEARING DATE(S):	19 May 1999 to 27 May 1999
JUDGMENT DATE:	28 May 1999
PARTIES :	Regina David Bradley Leonard
JUDGMENT OF:	Sully J

COUNSEL :	Mrs. P. Hock - Crown Miss Leonie Flannery - Accused
SOLICITORS:	Crown Solicitor's Office Legal Aid of NSW
CATCHWORDS:	Criminal Law - Sentence - Murder - Prisoner shot his de facto wife after an argument - Provocation rejected by jury - MT 12 yrs; AT 4 yrs.
ACTS CITED:	Sentencing Act 1989
CASES CITED:	Regina v Peter Paul Dundas: unreported, Studdert J, 15 April 1992 Regina v Whare Tuakana Gerrard: unreported, David Hunt CJ at CL, 3 July 1992 Regina v John Charles Edwards: CCA, unreported, 2 August 1995 Regina v Ismail Capar: unreported, Smart J, 27 October 1995 Regina v Wai Sung Cheung aka Steve Cheung: CCA, unreported, 11 December 1995 Regina v Koroneria Kingi: unreported, Hidden J, 18 December 1998
DECISION:	Penal servitude for 16 years - minimum term 12 years and additional term 4 years. Minimum term to commence 12 October 1997 and expire 11 October 2009. Additional term to commence 12 October 2009 and expire 11 October 2013. Eligible for parole on 11 October 2009

SUPREME COURT OF
NEW SOUTH WALES
CRIMINAL DIVISION

SULLY J

28 May 1999

70022/98 - REGINA v DAVID BRADLEY LEONARD

ON SENTENCE

1   HIS HONOUR: On Wednesday of last week David Bradley Leonard, [“the prisoner”], was presented in this Court for trial upon an indictment charging tht he had murdered, on 12 October 1997 at South Windsor, one Glenda Norris, [“the deceased]”. The prisoner pleaded not guilty, and he was put accordingly upon trial by jury. Yesterday morning the jury returned a verdict finding the prisoner guilty as charged. Submissions on sentence were made yesterday afternoon; and the passing of sentence was fixed for this afternoon. 2   At trial the prisoner did not dispute that he had by an unlawful act caused the death in question; and he did not dispute that such act had been accompanied by the intent either to kill or to inflict grievous bodily harm. The prisoner’s case depended entirely upon his claim that he had acted in response to provocation in the sense recognised by the law as reducing culpability for an unlawful killing from that of murder to that of manslaughter. This issue was clearly articulated; and was fought out, on both sides of the record, with a clarity and an economy that were admirable in their professionalism. 3   The objective facts can be summarised as follows: 4   The prisoner met the deceased in about December 1996. A relationship between them developed; and in late May 1997 they began to live together. The deceased had previously worked as a prostitute, a fact that she disclosed to the prisoner. The two of them discussed that aspect of her past; and, according to the prisoner, they agreed that she would not work in that way while ever they were together. 5   The deceased had other and difficult personal problems. She regularly abused alcohol. She regularly injected methadone and another prescription drug. She appears to have been very self-willed; and she appears to have been capable of speaking and of behaving in a very coarse fashion. She was some 10 years older that the prisoner, who, although not without some prior sexual experience, had lived, certainly by comparison with the deceased, a sheltered and low-key personal and social life. 6   At trial the prisoner gave extensive evidence of what, according to him, had been the course of his relationship with the deceased, particularly from the period July/August 1997, following the death of a man who had been a close personal friend of the deceased. The prisoner supported his account by reference to contemporaneous diary notes. Even if it be accepted, as I think common sense alone would suggest, that the diary notes are at best brief paraphrases of what they describe, it was, nevertheless, not contended at the trial either that they were fabricated, or that they were in some other way wholly unreliable as a source from which an outside observer might obtain a reasonably fair general idea of what the relationship entailed in its day to day existence. 7   The picture that thus emerges is one of a relationship that was, on both sides, emotionally brittle; and that moved in frequent and volatile swings from one of comparative stability and mutual affection, to one of mutual acrimony, of mutual recrimination, and of occasional physical violence. The whole course of the relationship, whatever its particular phase of the moment, appears to have been overshadowed by continuous excessive drinking and drug abuse on the part of the deceased. The prisoner was not a drug abuser, but he, too, seems to have drunk intoxicating liquor, at least from time to time, in excessive quantities. 8   On 12 October, the prisoner and the deceased went to the South Windsor RSL Club which was situated a short drive away from where they were then living. Their relationship was, at this time, very strained. They had been arguing, according to the prisoner, almost continuously since 9 October. At the Club, the deceased was approached by a man whom it seems she knew from her days of active prostitution. During a temporary absence of the prisoner, the deceased apparently agreed to leave in the company of this other man. Before she could actually do so, the prisoner returned; saw what was happening, and had a major confrontation with the deceased outside the Club premises. Their argument was loud, abusive and public. Persons nearby, and who gave evidence at the trial, described how the deceased had asked one of them to stop the prisoner from harassing her. In the end, the deceased went off with her acquaintance, leaving the prisoner, in his own words, “angry, depressed, hurt”. 9   There was evidence from one Crown witness that she had heard the prisoner, as it were, fire a parting shot at the deceased in these words: “I’ll be waiting at home to kill you”. The prisoner himself gave evidence that he could not now recall whether or not he had said so. I can imagine that it was just the thing that the prisoner might well have said, given the ambient emotional temperature; but there is no evidence to support the one Crown witness’s recollection of the words, and I think that the fair approach would be to give the prisoner the benefit of the doubt. 10   After the foregoing events, the prisoner left the Club. He drove home, being sufficiently in possession of his faculties to realise that he was not driving safely, and to stop, accordingly, until he had composed himself. He drove to his place of work; parked outside for a period; and then decided to go home, pack his bags and leave. 11   Upon his arrival home, the prisoner began to pack his bags. He was, in his own words, “shattered, angry, hurt, upset”. As he packed, he came upon an old, but functioning, revolver stored among his clothing, and a quantity of ammunition. He loaded the revolver with six rounds of ammunition, intending to take his own life. He realised that the notion was, in his own word, “insane”. He telephoned his mother and she tried to calm him down. While he was so engaged, the deceased returned home. 12   The deceased was intoxicated and aggressive. She and the prisoner had a fiercely abusive argument during the course of which she tormented him about his sexual prowess and about what she had been doing, and was planning to go on doing, in pursuit of what she described as “having a good time”. The prisoner, by this time, had placed the loaded revolver in the back of the waistband of his jeans. At the height of the exchanges between him and the deceased, he pulled out the revolver, cocked it, took up the firing stance of an experienced shooter, - which the prisoner in fact was, - said “bye bye baby” or “bye bye dear”, and, from a distance somewhere between one and three feet, shot the deceased though the forehead, killing her instantly. 13   The prisoner realised immediately the enormity of what he had done. He tried to fire a second shot through his own jaw, but only managed to fire in such a way that the bullet skimmed across the side of his neck and lodged in the ceiling. Thereafter, and in a highly agitated state, he called the ambulance and the police. He was arrested very late on the evening of 12 October and has been in unbroken custody since the arrest. He co-operated fully with the investigating police. 14   It is, I think, beyond questioning that the verdict of the jury expresses a conclusion, reached beyond reasonable doubt, that an ordinary person in the position of the prisoner at the time he shot the deceased could not have responded to any demonstrated provocation offered by the deceased by so far losing his self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased. With such a conclusion I entirely agree. 15   It must follow, in my opinion, that the shooting by the prisoner of the deceased was a crime of very high culpability. It is the paramount purpose of the rule of law in any truly civilised society to protect unflinchingly the sanctity of human life. In such a society it is the paramount duty of the Courts to give, unflinchingly, full and public effect to that purpose. That purpose and duty are especially important in such a society as our own, where mutual marital fidelity has been largely supplanted by extra-marital liaisons of various kinds, many of which, as the daily experience of the Court makes plain, are all too apt to break down in circumstances of great bitterness. That entails, in its turn, that there cannot, and must not, be allowed to develop in society any perception that it is in any way permissible for an aggrieved party to such a breakdown to lash out in self-absorbed frustration to the extent of killing, - or, indeed, of inflicting any other bodily harm upon, - either the other party to the breakdown, or any third party, who is thought to be involved in, or responsible for, the breakdown. 16   It is, of course, necessary to take into proper account for present purposes not only the objective gravity of the prisoner’s offence and its concomitant need for 59 17   deterrence and retribution in aid of proper public protection, but also the demonstrated personal circumstances of the prisoner. They can be summarised as follow. 18   The prisoner was born on 15 August 1969. He was aged a little over 28 years at the time of the killing; and is now aged 29 years and some 9 months. He has no criminal antecedents. 19   The prisoner was educated at school to year 10. Thereafter he worked at various times in catering-related employment; in a scrap-metal business of his own; and in the Army. Shortly before October 1997 he had commenced working in a factory; and there is in evidence, as Exhibit 1 on sentence, a commendatory reference from that employer. Additional, and more personal, commendations are in evidence as Exhibit 2 on sentence. I accept what is said in Exhibits 1 and 2. 20   The prisoner, as I have previously noted, appears to have led a fairly sheltered private life until he began his liaison with the deceased. He seems to have been genuinely attached to her in his own way; but the available evidence suggests tht the relationship was in truth a mismatch. I am satisfied that during the course of the relationship the prisoner had, at least for much of the time, and to speak colloquially, a lot to put up with. 21   The prisoner expressed, from the very moment of the shooting, remorse for what he had done. I have seen video-taped evidence of such remorse and I did not get any impression that what I was seeing was insincere. I think that the prisoner is genuinely remorseful for what he did. 22   The prisoner’s history while in prison to date has some positive, and some troubling negative, features. 23   On the negative side, the prisoner has made an attempt on his life by slashing his wrists. He has received medical and psychological treatment to which he appears to have responded reasonably well. He is held in protection; in part, I should think, because of that history; but in part, as I understand the fact, because of threats made against him, although not actually to him, by another prisoner who has, it would seem, some connection with the deceased and her children. The prisoner does not know the name of this other inmate; but know only that he is serving a term in the order of 5 years for some robbery related offence(s). All of these factors will make the continuing imprisonment of the prisoner more than normally difficult, at least for the foreseeable future. 24   On the positive side, the prisoner appears to have made a real effort to improve his educational level and his vocational prospects. The relevant details are certified in the various documents comprising Exhibit 3 on sentence. These efforts of the prisoner are commendable, and I will give him proper credit for them. No doubt all those who are hereafter concerned with the prisoner’s management will give him all proper encouragement to continue his efforts. 25   I am satisfied that the prisoner is not a likely danger to the community and that personal deterrence, although a proper matter for consideration, does not play as large a part in his case as it might do in other and different cases. 26   I have found it no easy matter to bring into what I would regard as a proper overall balance the objective and subjective considerations that I have canvassed in my present remarks on sentence. Learned counsel for the prisoner referred me to a number of unreported decisions: Regina v Peter Paul Dundas: unreported, Studdert J, 15 April 1992; Regina v Whare Tuakana Gerrard: unreported, David Hunt CJ at CL, 3 July 1992; Regina v John Charles Edwards: CCA, unreported, 2 August 1995; Regina v Ismail Capar: unreported, Smart J, 27 October 1995; Regina v Wai Sung Cheung aka Steve Cheung: CCA, unreported, 11 December 1995; Regina v Koroneria Kingi: unreported, Hidden J, 18 December 1998. I have scanned them all; but I have found them to be, at best, of general indicative assistance. 27   I have come to the conclusion that a fair sentence would be an aggregate sentence of penal servitude for 16 years, divided between a minimum term of 12 years and an additional term of 4 years. 28   I have considered the matter of “special circumstances” of the kind contemplated by section 5(2) of the Sentencing Act, but I have decided not to alter the division as stated. There are two reasons for that. First, I am of the opinion that a minimum term, - that is, a time actually to be served , - of less than 12 years would not reflect adequately the seriousness of the point-blank and intentional shooting of the deceased. Secondly, I have not been persuaded by the available evidence that the proper rehabilitation of the prisoner back into the community after he has served that minimum term calls for a longer period of supervision than one of 4 years.

David Bradley Leonard: for the crime of the murder of Glenda Norris, you are convicted. You are sentenced to penal servitude for 16 years, divided between a minimum term of 12 years and an additional term of 4 years. The minimum term will commence on 12 October 1997 and expire on 11 October 2009. The additional term will commence on 12 October 2009 and expire on 11 October 2013. You will be eligible for parole on 11 October 2009.

I direct that a copy of these remarks on sentence be furnished forthwith to the Commissioner of Corrective Services; and I recommend that such copy remain with the prisoner’s Corrective Services file.

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Last Modified: 06/07/1999