Director of Public Prosecutions v Bell
[2024] VSC 576
•19 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0113
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| DEAN BELL | Accused |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 September 2024 |
DATE OF SENTENCE: | 19 September 2024 |
CASE MAY BE CITED AS: | DPP v Bell |
MEDIUM NEUTRAL CITATION: | [2024] VSC 576 |
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CRIMINAL LAW – Sentencing – Homicide by firearm – Complicity – Shooting – Early guilty plea – Aboriginal offender – Specific application of Bugmy v The Queen (2013) 249 CLR 571 – Parity – Genuine remorse – Standard sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J Warren with Ms J Ellis | Office of Public Prosecutions |
| For the Accused | Mr G Casement with Ms S Joosten | Victorian Aboriginal Legal Service |
HER HONOUR:
Dean John Bell, you have pleaded guilty to a single charge of homicide by firearm in relation to the death of Griffin Harris.
The maximum penalty for this offence is 25 years’ imprisonment. It carries a standard sentence of 13 years.
As homicide by firearm is a Category 2 offence under the Sentencing Act 1991 (‘the Act’), s 5(2H) requires the Court to impose a custodial order unless one of the exceptions set out in the Act applies. None of those circumstances appear to be relevant here.
You were originally charged with the murder of Mr Harris, but that charge was withdrawn prior to your plea.
Circumstances of the offending.
Your offending occurred on 21 September 2022. You were one of four offenders who attended the home of Alison Sleddon and Griffin Harris in the early hours of the morning while the couple was sleeping.
At approximately 4:10am, while your co-offenders Peter Batsanes and Troy Smith banged on the front door of the house, you and Lachlan Belmore climbed over the rear fence of the property from an adjoining construction site. Mr Belmore was in possession of a longarm rifle as he climbed over the fence, and you were holding an unknown shorter object. Both of you were wearing balaclavas.
Shortly after you climbed the fence, Ms Sleddon was confronted by a male holding a rifle inside the hallway of the house. She escaped through the front door and sought refuge at a neighbouring property.
Subsequently, Mr Harris was confronted in the house by an offender with a firearm and was struck to the head, left arm and abdomen. At some point, Mr Harris was shot through the upper chest. At around 4:12am, you climbed back over the fence, followed closely by Mr Belmore carrying the rifle. Mr Harris was declared dead at 5:58am.
You returned to your home in Wallan with Mr Smith. Mr Belmore, in a separate car, returned to his home and later disposed of the firearm. You were not involved in the disposal of the firearm.
For this plea, the prosecution alleges that the male that entered the house was Mr Belmore and accepts without reservation that you did not enter the house.[1] I previously sentenced Mr Belmore, who pleaded guilty to a charge of unlawful and dangerous act manslaughter, on the basis that he also did not enter the house. However, it was never asserted in that matter that it was you who entered the house. This fairly obvious inconsistency was explained by counsel on the basis that the prosecution could not point to any evidence linking you to entering the house. On the other hand, in relation to Mr Belmore, it was put that the prosecution’s position was that it could not prove beyond reasonable doubt that Mr Belmore entered the house, and a resolution was reached on that basis.
[1]Summary of prosecution opening dated 22 May 2024 (Exhibit P2), 7 (‘Prosecution Opening’).
It is further accepted without any reservation by the prosecution that you did not possess the firearm at any time during the event. However, by your plea, you accept that you entered into an agreement, arrangement or understanding with Mr Belmore to confront and threaten Mr Harris with a loaded firearm. Such conduct constitutes an unlawful and dangerous act, and a reasonable person would have realised that such an act exposed Mr Harris to an appreciable risk of serious injury.
Co-offenders
Your three co-offenders have already been sentenced for their role in the offending.
Mr Smith and Mr Batsanes pleaded guilty to home invasion and were sentenced together in this Court. As I have mentioned, I sentenced Mr Belmore for unlawful and dangerous act manslaughter to nine and a half years’ imprisonment with a minimum non-parole period of five and a half years.
Victim impact statements
Before I continue, I want to say something about the effect your offending has had on others. Griffin Harris was only 22 years old at the time of his death. He had recently moved to the property in Kalkallo to live at the home of his girlfriend, Alison Sleddon, and her two young children.
I have had regard to victim impact statements prepared by the deceased’s father, Mr Kevin Harris, the deceased’s mother, Mrs Lorraine Harris, and the deceased’s sister, Ms Melanie Smorthwaite.
Mr Kevin Harris visits the grave of his son multiple times a week and misses talking to him. Family events have changed and are empty without the presence of his son. Mr Harris finds that he no longer receives enjoyment from his activities and work. He struggles with day-to-day life and hates leaving the house.
Mrs Lorraine Harris feels that the loss of her son has changed every aspect of her life. She is filled with a sense of loss, despair and heartbreak and is finding it increasingly difficult to maintain a brave front. She experiences panic attacks and trouble sleeping. Mrs Harris’ GP speaks to the severe emotional distress and physical suffering experienced by Mrs Harris in a letter to the Court.
Ms Melanie Smorthwaite attends counselling monthly to cope with her grief and anger and has felt sad, scared, and withdrawn since learning of her brother’s death. It has placed a significant strain on her family life.
Personal circumstances
I now turn to your personal circumstances.
You were born on 12 December 1990 and were 31 years old at the time of the offending. You are now 33 years old.
You are an Aboriginal man of the Taungurung people from central Victoria and you were raised in Seymour.
Your family life in your early years can be described as complex and unstable. Your parents separated when you were only a year old, and you subsequently had only infrequent contact with your father.
Your mother re-partnered with a man who was physically violent towards your mother and heavily abused heroin. Your brother Zeke, with whom you share a close bond, was born from that relationship. Zeke’s father has had minimal involvement with you and Zeke after the relationship with your mother ended.
Zeke has a number of complex health issues, including spina bifida, serious heart issues, and an intellectual disability. He requires significant support. As a result, you were, in your own words, ‘bounced around’ during your early teens to ease the caretaking burden on your mother.
This led to a particularly unhappy period in your life. Feeling resentful and abandoned, you lived intermittently with your father, nan, and uncle. You experienced physical abuse at the hands of your uncle and reported that you were sexually abused by an older cousin. You briefly returned to live with your mother before moving out with friends by the age of 16.
There was a lack of consistency in your early education and you experienced learning and behavioural difficulties. You eventually left school around Year 7 and began to work with your uncle. You hoped to undertake an apprenticeship as a jockey, but opted not to pursue that opportunity and you have subsequently had limited employment beyond some casual labouring. You were unemployed at the time of your offending.
You have an extensive history of substance abuse. You began using cannabis and alcohol from the age of 13. By your late teens, those vices had been replaced by ecstasy, amphetamines, methylamphetamine and GHB. Your only periods of abstinence were during your incarceration.
In 2014, when you were 23 years old, you were in a serious motor vehicle accident which has had lasting impacts on both your physical and mental health. That same year, your father died of a heroin overdose. You experienced tremendous grief at this loss, and indulged in dangerous levels of methylamphetamine use to repress those emotions.
You have four children, aged between eight and 15 years old. Your relationship with them has been damaged by your drug use, poor mental health, and criminal offending. You have had limited contact with your children for some years but have made steps towards re-engaging with your sons in recent months. You have indicated a desire to be a part of their lives and have expressed guilt at contributing to a cycle of broken homes.
Your most recent relationship ended shortly before your offending on amicable terms.
Report from Dr Mathew Barth
The Court was assisted by a report from psychologist Dr Mathew Barth, who assessed you in late July of this year.
Dr Barth identifies that you suffer from depressive and anxiety-related symptoms of moderate intensity, but that these symptoms are not sufficiently severe to meet diagnostic criteria for a mood disorder, anxiety-related disorder, or adjustment disorder.[2] On his current evaluation, Dr Barth determines that your intellectual functioning is in the low-average range.[3]
[2]Report of Dr Matthew Barth dated 6 August 2024 (Exhibit D1), 6 (‘Barth Report’).
[3]Ibid, 7.
Dr Barth indicates that you demonstrate a noteworthy dysfunction in interpersonal and behavioural adjustment and that you engage in impulsive and aggressive behaviour to mask a sense of helplessness.[4] These interpersonal and behavioural issues are exacerbated by a severe stimulant-use disorder.[5] While your substance use is in remission in the controlled environment of custody, you are only in the early phases of addressing this problem and your insight is limited.[6]
[4]Ibid, 11.
[5]Ibid.
[6]Ibid, 7.
Dr Barth conducted a detailed violence risk assessment and considered that you are at a moderate-high risk of recidivism, based on your criminal history, antisocial personality traits and behavioural problems.[7]
[7]Ibid, 10.
Criminal history
You have a relevant criminal history, consisting of various drug and violence offences. Your previous offending appears to be related to your drug abuse. You were on a Community Correction Order at the time of this current offending.
Nature and gravity of the offence
Although it is agreed that you did not enter the property or confront and shoot the deceased, you are to be sentenced on the basis that you entered into an agreement, arrangement or understanding with Mr Belmore to confront and threaten the deceased with a loaded firearm. You knew that a loaded firearm was brought to the scene and that Mr Harris was to be confronted with this loaded weapon.
Two people were confronted in the house: Ms Sleddon, who was approached by an offender wearing a balaclava and holding a longarm rifle pointed toward her head, and the deceased. The prosecution aptly described this as an intentional surprise attack.
You and your co-offenders fled the scene without seeking assistance for Mr Harris, a man you have said was your friend. Leaving a friend in such circumstances, without seeking assistance, beggars belief.
You did not plan the attack or organise for the co-offenders to attend Mr Harris’ address. You did not organise or provide the firearm that was brought to the scene.
Instead, you told Dr Barth that you asked Mr Smith to pick you up to get some ‘ice’ and together you smoked about two grams.[8] On your version, Mr Smith told you that he had to make a stop and that Mr Harris was going to get bashed. You said that you otherwise do not remember much as you were ‘cooked from the shard (the Ice)’.[9] This account is at some odds with the prosecution opening for plea which is not contested. In that summary, it is stated that between 11.00pm and 12.00am Mr Smith received a phone call from you and that Smith said ‘Don’t worry, I’ll be there, what’s the address?’.[10] The prosecution submits that this evidence suggests your actions were not impulsive.
[8]Barth Report, 6.
[9]Ibid.
[10]Prosecution Opening, [21].
The evidence supports the fact that you were brought into the events at a late stage. You told police in the record of interview on 11 October 2022 that you did not enter the house, you did not shoot Mr Harris and you couldn’t say where you were when the shooting happened.[11]
[11]Ibid, [71].
You did not enter the house and did not at any stage have possession of the firearm. While your decision to become involved was not spontaneous, it was late in the piece. It is, in fact, unclear why you became involved.
Given the circumstances of your participation in the offending, I consider the objective gravity of your offending is at the lower end of seriousness.
Principles of Bugmy
Your counsel submits that your dysfunctional upbringing, tainted by violence, enlivens the principle from Bugmy v The Queen in both a general and specific sense.[12] However, the prosecution submits that the asserted connection between your upbringing and offending is not sufficiently clear to demonstrate a causal nexus.
[12]Bugmy v The Queen (2013) 249 CLR 571; Defence written submission on plea dated 14 August 2024, [34]–[35].
In his psychological assessment, Dr Barth identifies that your childhood instability and abandonment was the genesis for the range of interpersonal and behavioural difficulties you have experienced throughout your life.[13] He suggests that your lack of a solid childhood base was the primary contributor to your difficulty in making good decisions.[14] This has made you prone to foreclosing on solutions based on surface features, such as salience, availability, or speed of implementation, rather than seeking long-term solutions. This simplistic social reasoning has invariably led you to fail to consider the full ramifications of your actions and your struggles with impulse control. This impulsive decision making is intensified during emotionally challenging situations and when you are using drugs.[15]
[13]Barth Report, [39].
[14]Ibid.
[15]Ibid, [40].
Dr Barth further considers that the primary coping mechanism you have developed from the distressing experiences of your childhood is to ‘act out’ a sense of powerlessness through substance abuse and aggressive behaviour. This has contributed to a vicious cycle in which your destabilised behaviour has repeatedly led you into the orbit of antisocial influences and the legal system.[16]
[16]Ibid, [41].
The impact of disadvantage is complex and not easily measured. The High Court has recognised that serious childhood deprivation is likely to make an offender less morally culpable than an offender whose formative years were not damaged in that way. As Dawson J said in Postiglione v The Queen, ‘[e]qual justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them’.[17] The extent to which social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of disadvantage could be seen to be in any way explanatory of the offending.[18]
[17](1997) 189 CLR 295, 301.
[18]Sabbatucci v The Queen (2021) 98 MVR 256, 259 (Maxwell P and Emerton JA).
I consider that in the circumstances of your offending, the instability, abandonment, and distressing experiences of your childhood make you less morally culpable than an offender whose formative years were not marred in that way. I would go as far as to say that there is a nexus between your childhood disadvantage and the offending behaviour. In this case I consider, based on Dr Barth’s opinion, that your social disadvantage appears to be explanatory of the offending conduct. It is open for me to conclude that your childhood experiences contribute to your difficulty making good decisions, which intensifies when you are using drugs. On the night of the offending, you made the terrible decision to go to Mr Harris’ home to ‘rough him up’ in response to circumstances that did not involve you. You considered Mr Harris a friend. It made no sense. You agreed to be a part of the attack, and you clearly failed to consider any of the consequences of your actions. These traits and behaviours, as Dr Barth said, find their genesis in your childhood experiences. I consider that there is sufficient link between the nature and circumstances of the offence, your involvement in the offending, and your severe disadvantage, such that your upbringing is to an extent specifically explanatory of your offending conduct.
Sentencing factors
Guilty plea and remorse
Dr Barth reports that you have expressed remorse about your involvement in the offending and that you ‘hate yourself’, ‘feel shit’ and are ‘deeply sorry’ that your conduct resulted in the death of Mr Harris.[19] You have expressed your remorse to your cousin, Victoria Velt, who is in regular contact with you.
[19]Barth Report, 6.
You agreed to plead guilty to homicide by firearm very soon after the charge of murder was removed from the indictment. You did this unconditionally without seeking a sentence indication. You are therefore entitled to the benefit of a plea of guilty that was entered at an early opportunity. Your plea facilitates the course of justice and serves a utilitarian value, saving the family of the victim from having to engage in a lengthy trial and give evidence.
I accept that your expressions of remorse and early plea reflect your genuine remorse for your involvement.
Age and rehabilitation prospects
The prosecution submits that your previous periods of incarceration have not served to deter your conduct. However, these periods pale in comparison with the length of time you will spend in custody for this offending. Dr Barth considers that your risk of recidivism is moderate-high and suggests that your behavioural issues and serious offending militate against optimism.
Against Dr Barth’s opinion is your progress while you have been on remand. You have taken every opportunity available to you to better yourself. The Court received certificates demonstrating your completion of numerous educational courses including Certificate II in Engineering, Certificate I in Access to Vocational Pathways, Certificate II in Kitchen Operations and Certificate I in Skills for Vocational Pathways. You have a billet in the kitchen. You have demonstrated commitment to your education in circumstances where you were last enrolled in school in Year 7. You are to be commended for your efforts. Importantly, you have engaged for the first time in Aboriginal cultural programs. You are part of the Torch program and I was shown your artwork. These cultural programs will hopefully help you in your rehabilitation by connecting you to culture and helping you to find positive ways forward. You have also expressed motivation to be a better role model for your children, and this may well prove a protective factor for you.
Additionally, Dr Barth considers that you have Stimulant-use Disorder, which he notes is in remission in the controlled environment of custody. You have spent over 700 days on remand and have remained drug-free, suggesting that you are making substantial progress. You have achieved this in the absence of any specified drug and alcohol treatment or program.
I considered Mr Belmore’s relative youth a significant factor in his sentence. He was 24 at the time of the offending, whereas you were 31 years old. Nevertheless, you remain of an age where you have the possibility of changing the trajectory of your life.
Although your rehabilitation is in an early phase and bearing in mind Dr Barth’s opinion, the progress you have made is encouraging. I consider your prospects of rehabilitation to be better than guarded and would say they are reasonable.
Hardship in custody
I accept that your time in custody has been harder than usual, by reason of the murder charge persisting until March of this year. It is reasonable to assume that you would have been burdened by the thought that a possible murder conviction would lead to a significant period of incarceration.
In relation to the impact of COVID-19 on your time in custody, I adopt the position of Hollingworth J in sentencing your co-offenders, Mr Batsanes and Mr Smith, that any discount will be very modest now that the pandemic backlog has cleared.[20]
[20]DPP v Batsanes & Smith [2023] VSC 693, [52].
Parity
Mr Batsanes and Mr Smith have been sentenced for different charges and, as such, their sentences are not relevant to your case.
Mr Belmore has pleaded guilty to manslaughter, arising from the same factual circumstances.
Despite the inconsistencies I referred to at paragraph [10], the circumstances of your participation and offending are less serious than those of Mr Belmore.
I sentenced Mr Belmore earlier this year to a term of imprisonment of nine years, with a non-parole period of five-and-a-half years.
I have had regard to yours and Mr Belmore’s personal circumstances, the roles you played in the offending and your respective culpability. On the agreed facts in this plea hearing, Mr Belmore was the principal offender. He had the ongoing dispute with Mr Harris. He organised for the co-offenders to attend the deceased’s address. He sourced the firearm and ensured it was brought to the scene. He was in possession of the firearm upon entering the backyard of the property and had to be in possession of the loaded firearm when he entered the house. He departed the scene with the rifle and was responsible for discarding it.
Even though Mr Belmore was sentenced on the basis that he did not enter the house, I considered his participation in the offending to be instrumental; as was put by counsel for the prosecution, the attack would not have happened but for Mr Belmore. The prosecution further agreed that your involvement was much less serious than Mr Belmore’s. It is consistent across the facts in both pleas that Mr Belmore’s moral culpability and the objective gravity of his offending is significantly higher than yours.
In considering parity between you and Mr Belmore, I have also had regard to your age difference and your criminal history, as compared to Mr Belmore’s lack of any relevant criminal history.
Standard sentence
As I have already noted, homicide by firearm is standard sentence offence. Pursuant to s 5A(1)(b) of the Act, the standard sentence of 13 years’ imprisonment represents the appropriate sentence for mid-range offending, considering only objective factors.
As required by s 5B(2) of the Act, I have taken this standard sentence into account as a relevant factor in the sentencing exercise.[21]
[21]Brown v The Queen [2019] VSCA 286, [4].
With regard to only the objective factors of the offending, I consider that these circumstances fall well below the middle range of offending that attracts the standard sentence. Further, as the prosecution submitted, the consideration of the standard sentence must necessarily yield to the importance of parity. I accept the submission that you should not be unduly punished by virtue of the standard sentence consideration where your guilty plea facilitated the resolution of the matter.[22]
[22]I have also had regard to current sentencing practice and note that there has not been any other sentence for homicide by firearm.
Parsimony
Section 5(3) of the Act relevantly provides that ‘a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose for which the sentence is imposed’. This reflects the common law principle of parsimony. I have applied this provision when considering the appropriate sentence in this case.
Sentencing Purposes
I now turn to the purposes of sentencing.
Section 5(1) of the Act provides that the only purposes for which sentence may be imposed are: general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
I consider that specific deterrence has a significant role to play in your sentence. You have a relevant history of violent offending, but this will represent your most significant period of incarceration by a long way. The imposition of a sentence must reflect the need for you to learn that an involvement in violence is not the only possible trajectory for your life.
Sentence
Mr Bell, would you please stand.
Balancing, as best I am able, the competing considerations laid down in the Act and having regard to the matters I have just discussed, for the offence of homicide by firearm, I sentence you to imprisonment for seven and a half years.
Considering the desirability of giving you a lengthy parole period, I order that you serve four years and six months before becoming eligible for parole.
Section 6AAA declaration
I have imposed on you a less severe sentence than I otherwise would have because you pleaded guilty to this offence. Pursuant to s 6AAA of the Act, I declare that but for your plea of guilty, I would have sentenced you to nine and a half years imprisonment with a non-parole period of six and a half years.
Pre-sentence detention
I further declare that you have served 710 days of pre-sentence detention, not including this day.
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