Director of Public Prosecutions v Belmore
[2024] VSC 213
•3 May 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0114
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| LACHLAN BELMORE | Accused |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 May 2024 |
DATE OF SENTENCE: | 3 May 2024 |
CASE MAY BE CITED AS: | DPP v Belmore |
MEDIUM NEUTRAL CITATION: | [2024] VSC 213 |
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CRIMINAL LAW – Sentencing – Manslaughter – Unlawful and dangerous act – Early guilty plea – Young offender – Complicity – Shooting – Unknown shooter.
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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 J Desmond with Mr S Ranjit | Emma Turnbull Lawyers |
HER HONOUR:
Lachlan Kyle Belmore, you have pleaded guilty to a single charge of manslaughter by unlawful and dangerous act.
The maximum penalty for this offence is 25 years’ imprisonment. It is not a standard sentence offence. The maximum penalty increased from 20 years imprisonment to 25 years imprisonment in 2020.
As manslaughter 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 apply. None of those circumstances appear to be relevant here.
You were originally charged with the murder of Griffin Harris but that charge was only very recently withdrawn.
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-accused Peter Batsanes and Troy Smith banged on the front door of the house, you and Dean Bell climbed over the rear fence of the property from an adjoining construction site wearing balaclavas. You were carrying a longarm rifle that you had brought with you in your car.
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, Mr Bell climbed back over the fence and you followed close behind, carrying the rifle. You returned to your vehicle and drove home to Mickleham.
Mr Harris was declared dead at 5:58am.
The prosecution agrees that they cannot prove beyond reasonable doubt that you were the shooter or that you went into the house. However, you accept that you entered into an agreement, arrangement or understanding with Mr Bell to threaten Mr Harris with a rifle.
Pre- and post-offence conduct
Your involvement in this crime extends beyond your attendance at the house in the middle of the night. The events were set in motion as a result of a dispute between you and Mr Harris over a drug debt of only around $250 and your response created the occasion for the tragic death.
At the beginning of September 2022, you repeatedly contacted Mr Harris for the repayment of a debt from a previous supply of drugs. Mr Harris grew angry at your insistence that he repay this amount and damaged your partner’s car on 14 September.
You once again asked for the money and, on 19 September 2022, Mr Harris threw a brick, this time at your car. This latest escalation prompted you to contact a series of friends, expressing a desire to retaliate against Mr Harris. You rounded up Mr Batsanes, Mr Smith and Mr Bell and planned the attack on Mr Harris’ property.
You also brought a rifle with you, although you expressed reluctance to carrying it in your car in the lead up to the offending. Nevertheless, you did elect to bring the rifle to Kalkallo and, shortly before climbing the fence into Mr Harris’ property, you doubled back to retrieve the rifle from the passenger seat of your car.
After the offending, at approximately 8:11am, you departed your property in the company of Mr Batsanes to dispose of the rifle, which has not been recovered.
Mr Harris
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.
Co-accused
Dean Bell has pleaded guilty to homicide by firearm and is awaiting sentence in this Court.
Troy Smith and Peter Batsanes pleaded guilty to home invasion and were sentenced together in this Court.
Victim impact statements
I have had regard to victim impact statements prepared by the father of the deceased, Mr Kevin Harris, the mother of the deceased, Mrs Lorraine Harris, and the sister of the deceased, Ms Melanie Smorthwaite.
Mr Kevin Harris writes that he has no enjoyment in his life and visits the grave of his son multiple times a week. His family’s lives have changed immeasurably since this senseless tragedy and there is an emptiness to Christmas, Easter and birthdays. He struggles with day-to-day life and hates leaving the house.
Mrs Lorraine Harris feels that a part of her is gone forever. Her life is filled with a sense of loss, despair and heart break and she is finding it increasingly difficult to maintain a brave front. She experiences panic attacks and trouble sleeping. The Court was assisted by a letter from Mrs Harris’ GP who speaks to the severe emotional distress and physical suffering experienced by Mrs Harris.
Ms Melanie Smorthwaite has felt sad, scared and withdrawn since learning of her brother’s death and it is placing a significant strain on her family life. She attends counselling on a monthly basis to cope with her grief and anger.
Personal circumstances
You were born on 2 August 1998 in the western suburbs of Melbourne and grew up in a caring household. Your parents remain supportive of you and hope for you to reside with them upon your eventual release.
You were 24 years old and living in Mickleham with your partner at the time of the offending. You have maintained your relationship with your partner while in custody.
You attended Whittlesea High School and completed Year 10. You commenced an apprenticeship in sheet metal and have completed three of the four years of that apprenticeship after making a brief foray into carpentry.
You commenced using cannabis at the age of 16 before becoming addicted to methylamphetamine from the age of 17. You have been abstaining from drug use since being remanded.
I am told you are a promising rapper and that your reputation was growing prior to your arrest.
Criminal history
You admit your criminal history. Your criminal history consists of matters determined in the adult and children’s court jurisdictions and includes drug, driving, possession of controlled weapons and dishonesty offences. The last sentence prior to this offending was in 2018. The offending currently before the court represents a significant escalation in your conduct and is your first violent offence.
Consideration
Sentencing factors
The offence of manslaughter is serious by definition. The life of a young man - a son, brother, and partner - has been lost because of your criminally dangerous behaviour. You have heard the victim impact statements, in particular those of Mr Harris’ parents, which make it plain that when a child predeceases his parents, it reverses the natural order of things.
As to the seriousness of your offending, the following can be concluded.
The parties have agreed that you are not to be sentenced on the basis that you were the shooter or that you entered Mr Harris’ home. You are to be sentenced on the basis that you were involved in the commission of the offence of manslaughter and that you and your co-offender, Mr Bell, came to an agreement, arrangement, or understanding to confront and threaten Mr Harris with a firearm.
The form of manslaughter relied on is manslaughter by unlawful and dangerous act. This means that you did not enter into an agreement, understanding or arrangement to kill or cause Mr Harris really serious injury. That would be murder. Instead, your plea accepts that you participated in conduct that was unlawful and dangerous. A reasonable person in your position would have realised that in producing a rifle in those circumstances, Mr Harris was being exposed to an appreciable risk of serious injury. In fact, during the confrontation, Mr Harris was shot in the chest, causing his death.
You were central to the planning of the confrontation and secured the rifle. Your actions were crucial to the execution of the plan to commit violence. The rifle you organised for the confrontation was an inherently dangerous and deadly weapon.
This plan also resulted in Ms Sleddon being confronted in her home by a person wearing a balaclava holding a rifle pointed at her head. Ms Sleddon and Mr Harris were entitled to feel safe in their home.
In assessing the seriousness of your crime, I have taken into account that you were not the shooter. However, as I have said, you were the instigator of the plan, organised for the co-accused to participate and facilitated the commission of the offending.
I consider this a serious example of manslaughter.
As to an explanation why you committed this offence, it seems, as I said, that it came from a desire to retaliate against Mr Harris for his acts of aggression towards you involving some minor property damage and a drug debt of approximately $250. Little emerges from the material provided to the Court that explains why you acted in the way you did. Given your unremarkable family background, apparently stable upbringing, and lack of any mental health conditions, it remains puzzling why you planned and engaged in such a serious and highly culpable criminal act.
Furthermore, instead of seeking assistance for Mr Harris, you drove off and then took steps to dispose of the rifle.
Guilty plea and remorse
You offered to plead guilty to a single charge of manslaughter at an early stage, prior to the committal. You are therefore entitled to the benefit of a plea of guilty made at the earliest opportunity. Your plea has facilitated the course of justice and is of utilitarian value.
I consider in the circumstances of this case, where you could have chosen to run a trial in the hope of an outright acquittal, that pleading guilty and foregoing that chance indicates some remorse.
Age and rehabilitation prospects
You were 24 years old at the time of the offending. You can be described as a young adult close to the threshold of those considered youthful. You are still young enough to engage principles concerning young offenders, albeit in a more limited way.
As Croucher J said in R v Cicekdag [2017] VSC 781:[1]
All else being equal, a younger person is less likely to appreciate risk or consider consequences … Mr Cicekdag was, at the time of the offence, and still is at an age where his values and attitudes were and are still being formed. It is of course a great pity that he has had to continue to develop those values and attitudes while in prison, but that, of course, is an unavoidable consequence of the nature and gravity of his crime. He has already spent two-and-a-half years in prison, and, as will be seen, he must remain there for some time yet. But one of the great aims of the criminal law is to rehabilitate young offenders. And Mr Cicekdag was, and is, young enough, and his history and character are such, that rehabilitation remains an important consideration in this case.
[1]R v Cicekdag [2017] VSC 781, [94]-[95].
You commenced using methylamphetamine at 17 years of age and the trajectory of your life changed for the worse. Your drug use and involvement in drug dealing has contributed to this tragic situation for yourself and, more importantly, for Mr Harris.
You will continue to benefit from your family’s support once you are released from prison. This is not the case for Mr Harris, who also had a supportive family. You have a career in the music industry that you hope to return to and skills in carpentry and sheet metal.
Since being on remand, you have abstained from drug use, have undertaken educational courses in prison and are employed in the kitchen.
I consider your prospects of rehabilitation are certainly open. Your success in this regard will depend very much on the use you make of your time in prison.
Hardship in custody
I accept that your time in custody has been harder than usual, by reason of the murder charge persisting until now. 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:[2]
It is not disputed that you are also entitled to an additional discount called a Worboyes discount, something which arose during the early stages of the COVID-19 pandemic. However, that additional discount will be a very modest one, given that the Supreme Court has long since cleared its pandemic backlog, and custodial conditions are back to what they were before the pandemic.
[2]DPP v Batsanes & Smith [2023] VSC 693, [52] (citations omitted).
Parity
Mr Batsanes and Mr Smith have been sentenced for different charges and, as such, their sentences are not relevant to your case.
Mr Bell has pleaded guilty to a more serious offence, homicide by firearm, which has a standard sentence of 13 years. His plea arises from the same events but I am not able to take the issue of parity any further at this stage as Mr Bell has not been sentenced.
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.
The community should understand that your actions in organising and bringing a firearm for the purpose of threatening another person is denounced by the Court. Even though you did not shoot Mr Harris or enter the house, it was you who made the decision that Mr Harris should be confronted and you who secured the rifle.
This conduct is denounced by the courts and will result in a substantial term of imprisonment. The penalty to be imposed upon you reflects your agreement with Mr Bell to commit an unlawful and dangerous act which took the life of another human being. It recognises that Mr Harris’ family will forever bear the sadness of his death.
While the need for specific deterrence must be given some weight, that need is moderated by your plea of guilty, remorse and reasonable prospects of rehabilitation. I have also considered your background and the support of your family.
I have had regard to your criminal history, which coincides with the time you commenced using drugs.
For all of these reasons, I do not consider that the sentence I impose is required to give particular weight to the future protection of the community. On all the material, including your limited criminal history, I consider that upon your eventual release you are not likely to pose a significant risk to the community.
I have been referred to a number of authorities to assist me with the range of sentences for manslaughter in circumstances such as this.[3] Insofar as the offence of manslaughter permits, I have had regard to current sentencing practices.[4]
[3]Director of Public Prosecutions (Vic) v Latuhoi [2024] VSC 136; The Queen v Albert Biba [2021] VSC 327; The Queen v Samaras [2019] VSC 120; The Queen v Omer Cicekdag [2017] VSC 781; R v Jeffrey [2023] VSC 538.
[4]Sentencing Council, Sentencing Snapshot No. 274 – Manslaughter.
Sentence
Mr Belmore, 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 manslaughter, I sentence you to imprisonment for nine years.
Considering the desirability of giving you a lengthy parole period, I order that you serve five-and-a-half years 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 11 years imprisonment with a non-parole period of seven-and-a-half years.
Pre-sentence detention
I further declare that you have served 571 days of pre-sentence detention, not including this day.
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