Bruce v The Queen
[2022] VSCA 100
•26 May 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0231
| MATTHEW BRUCE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and KENNEDY JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 February 2022 |
| DATE OF JUDGMENT: | 26 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 100 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1321 (Judge Stuart) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking 4.8 times large commercial quantity of methylamphetamine – Trafficking cannabis – Possession of firearms – Contravention of Firearm Prohibition Order (‘FPO’) – Possession of traffickable quantity of firearms – Discharge firearm at premises – Arson – Total effective sentence 21 years and 6 months – Non-parole period 15 years – Whether manifestly excessive – Powerful firearms – Flagrant disobedience of FPO – Further acquisition of firearms after police seizure – Very serious offending – Moral culpability at highest level – Specific deterrence – Community protection – Orders for cumulation reflected significant and separate criminality – Sentences within range – Open to judge to differentiate between co-offenders – Leave refused – DPP v Kumas [2021] VSCA 215, Atkinson v The Queen [2021] VSCA 127 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr CK Wareham | Theo Magazis & Associates |
| For the Respondent | Mr JCJ McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
KENNEDY JA:
Summary
Over a two month period in early 2019, the applicant (‘MB’) committed a series of very serious offences. Throughout the period he was trafficking in methylamphetamine (‘ice’) in such large quantities that his most serious offence was trafficking in a large commercial quantity of the drug (‘LCQ trafficking’). For that offence, he was sentenced to 12 years’ imprisonment.
He also pleaded guilty to a charge of possessing firearms in contravention of a firearm prohibition order (‘FPO’), for which he was sentenced to 6 years’ imprisonment, and to the offence of ‘discharge firearm at premises’, relating to a drive-by shooting which he instigated. On that charge he received a sentence of 8 years and 6 months’ imprisonment. There were separate charges of arson (3 years) and possession of a traffickable quantity of unregistered firearms (3 years).
Altogether, MB pleaded guilty to nine indictable offences. The total effective sentence was 21 years and 6 months’ imprisonment. A non-parole period of 15 years was fixed. MB now seeks leave to appeal against sentence on the following grounds, namely, that the individual sentences on the FPO charge and the ‘discharge firearm’ charge are manifestly excessive; that excessive cumulation has led to a total effective sentence which is manifestly excessive; and that it was not reasonably open to the judge to differentiate as he did between MB and one of the co-offenders in the sentences imposed for the drive-by shooting.
This was very serious offending indeed. Unlike the more familiar ‘spree’ of offending, which typically involves a string of similar offences committed over a short period in order to satisfy a drug addiction, these were all quite separate offences, involving different activities and different criminal objectives. Moreover, as the judge said in his comprehensive sentencing reasons, the offending was
marked by a singlemindedness and a determination to carry out [the] offending. [MB] relied on not inconsiderable occasions on third parties to carry out the actual acts. [He] coordinated and [he] planned what [he] wanted to be achieved avoiding at all times as best as possible [his] detection in this series of offences. [His] moral culpability for [this] lawless conduct in all of this offending is complete.[1]
[1]DPP v Bruce [2020] VCC 1321, [159] (‘Reasons’).
The grounds as filed also challenged the 12 year sentence for LCQ trafficking as manifestly excessive. When, however, the Court drew counsel’s attention to the recent decisions in Quah v The Queen[2] and Al Janabev The Queen,[3] that complaint was sensibly abandoned. The sentence of 12 years’ imprisonment was modest in the circumstances, given that the maximum penalty for the offence is life imprisonment and MB trafficked 4.8 times the large commercial quantity of ice. As the judge noted, MB was the sole principal of the trafficking business, he was purchasing quite large quantities for on-sale, and his sole motive was profit.
[2][2021] VSCA 164.
[3][2021] VSCA 252, [32]–[34].
For reasons which follow, we would refuse leave to appeal. As explained below, the firearms offences were very serious, each having its own separate characteristics which the judge carefully identified. The purpose of an FPO is to ensure that people like MB are not in possession of weapons, yet MB possessed six weapons which the judge described as being ‘of great lethality’.[4]
[4]Reasons, [84].
Nor is there any basis for challenging the sentence imposed on MB for the drive-by shooting, an offence of reckless endangerment. MB was the instigator, planner and director of the shooting, and the supplier of the powerful weapon which was used. Consistently with his practice, MB enlisted two others to carry out the attack. The sentence of 8 years and 6 months, and the differential between MB and his co-offender, were well within the scope of the sentencing discretion.
As to cumulation, the nature of the individual offences, and the significant and separate criminality involved in each, meant that there needed to be significant cumulation. And it needs to be borne in mind that the base sentence (for the offence of LCQ trafficking) was 12 years’ imprisonment. The total effective sentence was no greater than was warranted when regard is had to the aggregate criminality involved, the obvious need for deterrence and community protection, and the judge’s unchallenged finding that MB’s moral culpability was ‘complete’.
We wish in particular to acknowledge the great care with which the sentencing judge approached this difficult task. In addition to having to deal with the circumstances of the various offences, some of them quite complex factually, and with expert evidence about the various firearms, his Honour also had to deal with a number of co-offenders. The summary of prosecution opening ran to some 120 pages. Importantly, his Honour had the benefit of high quality plea submissions from both sides.
Circumstances of the offending
The offences to which MB pleaded guilty and the sentences imposed were as follows:
Charge on Indictment C1912466A.1
Offence
Maximum
Sentence
Cumulation
1 Trafficking in a drug of dependence (large commercial quantity) Life imprisonment and 5000 penalty units 12 years Base 4 Possession of a firearm or firearm related item in contravention of a firearm prohibition order 10 years’ imprisonment 6 years 30 months 5 Negligently dealing with proceeds of crime 5 years’ imprisonment 4 months — 6 Possession of a traffickable quantity of unregistered firearms 10 years’ imprisonment 3 years 1 year 7 Trafficking in a drug of dependence 15 years’ imprisonment 15 months 6 months 8 Attempting to obtain property by deception 5 years’ imprisonment 15 months 6 months 10 Arson 15 years’ imprisonment 3 years 15 months 11 Discharge firearm at premises 15 years’ imprisonment 102 months 42 months
12 Possession of a drug of dependence 1 year’s imprisonment and 30 penalty units 7 days — Related summary offences
6 Commit indictable offence whilst on bail 30 penalty units or 3 months’ imprisonment 1 month 1 month 9 Possession of cartridge ammunition without licence 40 penalty units $800 — 14 Make false report to police 120 penalty units or 12 months’ imprisonment 1 month — 30 Possess controlled weapon without excuse 120 penalty units or 12 months’ imprisonment 3 months 1 month 33 Drive whilst authorisation suspended 240 penalty units or 2 years’ imprisonment 3 months 1 month Total Effective Sentence
21 years and 6 months’ imprisonment
Non-Parole Period
15 years
Pre-sentence detention
551 days declared
Section 6AAA statement
Total effective sentence of 27 years, non-parole period of 19 years.
Other relevant orders:
1. Forfeiture and destruction of items in schedule
2. Forfeiture of items in schedule
The full details of MB’s offending are set out in the sentencing reasons.[5] For present purposes, it is necessary to recount only the facts relevant to the sentences which are directly challenged, namely, the FPO offence, the ‘traffickable quantity of firearms’ offence and the ‘discharge firearm’ offence.
[5]Ibid.
As to the first of these offences, MB was served with the FPO in August 2018. The effect of the order was that, for a period of 10 years, MB was prohibited from possessing or using any firearm or ammunition. Within a few months, however, intercepted communications revealed that MB was storing four firearms, including a semi-automatic assault rifle, at the home of an associate, Matthew Bentley. He treated Bentley’s home as a safe house, in the belief that it was a ‘clean’ address, that is, a place where the guns could be stored without the risk of police attention. It was clear from the intercepted communications that Bentley was knowingly storing these firearms for MB.
Intercepted communications indicated that MB was in the possession of the assault rifle, and was test firing and attempting to sell it. The judge noted that the rifle was ‘a semi-automatic of Chinese manufacture modelled on the classic Russian AK47 rifle’.
On 29 January 2019 police searched Bentley’s home and found four firearms stored there:
·a .303 bolt action rifle;
·the SKS military assault semi-automatic rifle, with ammunition;
·a cut-down shotgun, with ammunition; and
·a handgun in a pillow case, which was in fact a cut-down .22 longarm rifle.
At one point, MB’s sister contacted him and asked, ‘Hey need a pic of any bang bangs for sale and the ak’. MB sent her a photograph of a black machine gun, stating: ‘That’s 25k tho that’s all there is.’ This was a reference to the assault rifle. MB told his sister that he was selling it for $25,000 and that it came with a large amount of ammunition. MB then sent his sister a message containing a photograph of the assault rifle. The following day, MB sent a threatening message to an unknown male, asking: ‘Does he want me to bring my machine gun up there?’
Later that day, MB sent the sister of his partner a message containing a photograph with him holding the assault rifle in his bathroom, with his one-year-old daughter in the background. Later that evening, he spoke to his sister and conveyed his impatience about wanting to sell ‘the machine gun’. He said he would send her a video ‘but it’s gonna be blurry as it lets off three shots in one and then I only did a single shot as I didn’t realise the power in it’. Later again, MB sent an unknown person a multi-media message containing a photograph of the assault rifle with boxes of ammunition lying on the bed inside his home.
MB again spoke to his sister about selling the assault rifle. He mentioned again that he had over 380 rounds of ammunition, which he thought would help with the sale. If the potential purchaser wanted the ammunition, MB said, the price would be $27,500. The following morning, MB spoke to his partner about going to a remote location to test-fire the machine gun. He said he wanted ‘to make it work on full auto’ and he wanted her to make a video of him doing so. As the judge noted, previously MB had only been able to fire the weapon on single shot mode and semi-automatic mode (a three shot burst). Before the test firing could occur, police arrived at the associate’s home, where they located and seized the assault rifle as well as the other three weapons.
In relation to the cut-down .22 long arm rifle, the judge noted that
it had been fitted with a white pistol grip or hand grip. It had no magazine, it would have to be manually loaded one shot after the other. At the end of the cut-down barrel, a thread had been put on it, which according to the firearms expert could only have been used for the attachment of a silencer. No silencer was found.[6]
[6]Ibid [79].
MB subsequently acquired two further firearms. One was an Adler lever action shotgun (later used in the drive-by shooting). The second was a handgun, variously described as a Beretta or Colt. The judge commented that it was ‘a staggering feature’ of the acquisition of these firearms that MB acquired them after the police raid and seizure of the four firearms referred to earlier.
A few days after the police seizure of weapons, MB made arrangements to take possession of the Adler lever action shotgun. This weapon was
single-barrel and … it was capable of rapid fire and with a shotgun shell in the breach, together with a maximum of six shells in the magazine. This weapon could fire seven times without reloading.[7]
[7]Ibid [94].
A week later, on 15 February 2019, MB made arrangements with David McGlone for the drive-by shooting, which occurred the following morning at 3:30 am. His Honour commented, ‘Those bare facts speak to your determination to continue on your lawless conduct’.
Having purchased the Adler shotgun for $5,500, MB arranged for what he described as the ‘big thing’ to be collected and provided to McGlone. Late in the evening, MB gave McGlone his instructions for the shooting and then drove McGlone past the house that was to be ‘shot up’. In order to avoid police detection, MB did not use his own vehicle but used a hire car for the purpose of showing McGlone the target address. Unbeknown to him, authorities had installed a tracking device in the hire car.
At 1:39 am, MB called McGlone and asked how far away he was. By this time, McGlone had enlisted Robbie Brooke to be the driver, which would leave McGlone free to shoot from the passenger seat as the car was driven past the target address.
At 3:07 am, MB again called McGlone and asked if he had done the drive-by shooting. McGlone responded that it would be done in 10 minutes. At about 3:30 am, he carried out the shooting at a house occupied by two people, one male and one female, who were both at home at the time. The house in question is located in a built-up area, surrounded by other houses.
The judge described the shooting in these terms:
Shortly prior to the shooting, Mr McGlone had swapped the driver’s seat with Mr Brooke. The car drove around the corner and Mr McGlone in the passenger seat shot no less than four shots from the Adler shotgun at the house. At the time, the two occupants were asleep in the house. [The female occupant] was asleep on the couch in the living room, which is situated at the very front of the house. One of the bullets passed through the living room window and hit the wall just above where she was laying. She was covered in shattered glass. [The male occupant] was also asleep, in the bedroom at the front of the house. A number of their neighbours were home and also heard the shots being fired.
Pellets from the four-shotgun cartridges fired by Mr McGlone hit the following locations of the premises: the mailbox, the front window of the house, garage doors, side fence, rubbish bin and some internal walls. Indeed, other pellets from one of the blasts penetrated so far through a metal garage door of the premises, through a metal fence and into the hot water service of the premises next door. Such was the capacity for penetration of the pellets in the shotgun cartridges, later described as a small grape or buckshot.
After the shooting, Mr Brooke and Mr McGlone drove away. Mr Brooke got out of the car and Mr McGlone drove to Embleton Chase and returned the shotgun to you and Ms Shields. She then drove the hire car to Balmer Grange, where the shotgun was stored again into the horse float on that property.
At 3:41 am, you called Mr McGlone and instructed him to throw the shotgun shells down the drain. He said that he had already done so. He stated that he would not burn the car out tonight. You told him that you would drive past the premises the following day and have a ‘looksie’.
….
The weapon used was a shotgun. The shot was capable of significant penetration of windows, steel, garage doors, without stopping the shot from penetrating other items. No less than four cartridges were fired in rapid succession to the centre of the house and the garage area. At least two of those shots peppered the area near the front entry in the loungeroom. It is, as I have said, fortunate indeed that [the female occupant] was not in fact wounded by anyone or more of those shots.
In conversation also that occurred after that shooting, you attempted to establish with Mr McGlone whether the window or windows had been shot.[8]
[8]Ibid [116]–[119], [121]–[122].
As noted earlier, MB was sentenced on this charge to 8 years and 6 months’ imprisonment. McGlone was sentenced to 6 years’ imprisonment and Brooke to 3 years and 3 months’ imprisonment. MB’s parity complaint, as drafted, contended that there was too great a differential between the sentence imposed on MB and those imposed on each of the co-offenders. In the course of argument, however, counsel for MB (who did not draw the written case) confined his attention to the sentencing differential between MB and McGlone. We return to this question below.
The firearms offences
Charge 4 concerned MB’s possession of six firearms: the four which were stored by Bentley on his behalf and the two which he acquired subsequent to the seizure of the first four. His possession was a direct breach of the FPO. In his reasons, the judge said:
All six firearms were in working order. Thus, you as a prohibited person possessed firearms of great lethality, considerable variety and, in some cases, concealability.[9]
[9]Ibid [84].
Charge 6, of possessing a traffickable quantity of firearms, related to the first four weapons, those seized from Bentley’s home. As the judge noted, a traffickable quantity of firearms is two or more. Of those four weapons, the judge referred in particular to the military assault rifle, noting that it was for sale, for either $25,000 or $27,500 depending on whether ammunition was sold with it. His Honour said:
I have dealt in some considerable length with that semi-automatic assault rifle, because it demonstrates to my mind your moral culpability in relation to your offending the subject of both charges 4 and 6.[10]
[10]Ibid [86].
Both of these firearms offences carry the same maximum penalty – 10 years’ imprisonment. As noted earlier, the sentence imposed for possessing firearms in breach of the FPO was 6 years’ imprisonment, and for possession of a traffickable quantity of firearms, 3 years. One year of the latter sentence was directed to be served cumulatively. The applicant’s complaint of manifest excess relates both to the sentence for the FPO offence and to the cumulation of one year of the sentence for the ‘traffickable quantity’ offence. We begin with the sentence for the FPO offence.
Charge 4 was a rolled-up charge. That is, six charges of possession of a firearm in breach of the FPO were ‘rolled-up’ into a single charge. As this Court explained in R v Jones:
Rolled-up counts are a collection of offences bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. … The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner.[11]
[11][2004] VSCA 68, [13].
The judge sentencing for a rolled-up charge is obliged to take into account the aggregate criminality involved in all of the offences comprised in the charge. It follows that the sentence imposed on such a charge will almost inevitably be greater than the sentence imposed for a single such offence, all the more so where (as here) the rolled-up charge comprises six separate offences.
Counsel for the applicant sought to derive assistance from the decision of this Court in Director of Public Prosecutions v Kumas,[12] in which the offender was resentenced to individual terms of 3 years’ imprisonment and, in one instance, 2 years’ imprisonment on single offence charges of possessing a firearm in contravention of an FPO. In our view, the differential between a sentence of 3 years for a single offence charge and a sentence of 6 years for a rolled-up charge comprising six offences is unsurprising, especially having regard to the criminality covered by the rolled-up charge and to MB’s very high culpability, to which we now turn.
[12][2021] VSCA 215 (‘Kumas’).
Three features of this offending bear directly on its objective gravity. First, as the judge remarked, these were ‘firearms of great lethality’.[13] As MB himself recognised, the semi-automatic assault rifle was the most lethal of all. As he told his sister, ‘it lets off three shots in one’. The unchallenged expert evidence before the court was that this high-powered weapon could fire a series of ‘three round bursts’, each requiring only a single pulling of the trigger.
[13]DPP (Cth) v Munro [2019] VSCA 89, [5]–[6], [17], [92] (Maxwell P, Beach and McLeish JJA).
Furthermore, the sentencing judge was told, the ammunition in MB’s possession had ‘a steel core and a steel jacket’, and a fuel projectile, both of which increased the penetrating capacity of the ammunition. The witness said:
In the military they try and maim, because that’s what they want to do, they want to take out as many people as they can with the one cartridge to make it worthwhile. So it [has] penetrative value and they — I’ve seem ‘em go through walls like, a number of walls, bricks, that type of thing. They’re quite effective.
Secondly, two of the weapons in MB’s possession had been cut down from long arms to hand guns. As defence counsel properly conceded on the plea, the obvious explanation for the shortening was ‘concealment and ease of use’. Counsel acknowledged that the gravity of possessing handguns flowed from their ‘concealability and portability’. He further conceded that four of the six firearms ‘could not ever be part of anything other than the illicit market or used for some nefarious purpose’. It followed, counsel further conceded, that their possession was a more serious example of the offence than if they were possessed for a ‘lawful or legitimate purpose’. That concession, properly made, accorded with what this Court said in Berichon v The Queen.[14]
[14](2013) 40 VR 490, 496 [26] (Redlich JA); [2013] VSCA 319.
The final — and perhaps most striking — feature of this offence was the timing of MB’s possession of the weapons. As noted earlier, he acquired the first four weapons within months of being served with the FPO. Then, shortly after the seizure of those weapons and the arrest of Bentley, MB acquired two more weapons. As counsel for MB conceded in this Court, it could be inferred that MB took no notice of the FPO at all, and deliberately and knowingly ignored it. MB’s flagrant disobedience of the FPO, the effect of which he well understood, made this offence of ‘possession … in contravention of a firearm prohibition order’ all the more serious.
In this respect, the circumstances are closely comparable to those in Kumas, where the Court said:
It was, accordingly, a matter of great significance to this sentencing exercise that [the offender] embarked on offences of dealing in, and possession of, firearms within weeks of having been served with the FPO. His deliberate defiance of an order put in place for reasons of public safety significantly increased his culpability for these offences and highlighted the need for specific deterrence and community protection.[15]
[15]DPP v Kumas [2021] VSCA 215, [56] (Maxwell P, T Forrest and Walker JJA).
In addition to the obvious importance of community protection, which we deal with below, both specific and general deterrence were important sentencing considerations. As to specific deterrence, MB had a number of relevant prior convictions, as follows:
·being a prohibited person in possession of a firearm (2017);
·possessing cartridge ammunition without a licence (2017);
·being unlicensed and storing firearms/ammunition in an insecure manner (2017); and
·possessing a controlled weapon without excuse (2006).
As to general deterrence, the purpose of the FPO scheme is to promote community safety by ensuring that weapons do not fall into the wrong hands.[16] It is of the first importance that the sentences imposed for possessing firearms in breach of an FPO are set at a level which will send a strong message to others who might be tempted to disregard an FPO to which they are subject.
[16] Chief Commissioner of Police v Websdale [2019] VSCA 305, [35] (Maxwell P, Tate and Niall JJA).
For these reasons, in our view, the complaint of manifest excess with respect to the sentence of 6 years is without merit. We turn now to the question of cumulation.
His Honour explained — in terms which were not challenged on this application — the distinction between charges 4 and 6, as follows:
Charge 4, possession of firearms as a prohibited person, focuses on the person being a prohibited person, regardless of whether or not the firearms had previously been registered or not. The aim of the legislation is indeed to simply prohibit persons, the subject of an order, from possession of any firearm for the safety of the community.
Charge 6 focuses on a different aspect of possession and introduced the phrase, ‘trafficable quantity of unregistered firearms’. This charge, I consider, is one which looks to the illicit market of unregistered firearms. Indeed, the word ‘trafficable’ itself denotes the potential for commercial movement and in this context, the potential for commercial movement in the illicit firearms market.[17]
[17]Reasons, [87]–[89].
On the plea, both prosecutor and defence counsel alerted the judge to the need to avoid double punishment on the firearms charges. The defence submission was that this could be achieved through the imposition of ‘only modest cumulation’. Surprisingly, however, the written case filed in this Court contended that the cumulation of one year of the sentence for the ‘traffickable quantity’ charge amounted to ‘twice punishing’ MB for the same criminal act.
In this Court, counsel for MB (who did not prepare the written case) disavowed any complaint of double punishment. That was, with respect, a proper concession, given that the focus of the FPO offence is on the offender’s disobedience of the order of the prohibition to which he/she is subject.[18] Instead, as noted earlier, the submission was that ‘the degree of cumulation’ was excessive.
[18]Lecornu v The Queen (2012) 36 VR 382, 385 [9] (Maxwell P, Hollingworth and Cavanough AJA agreeing); [2012] VSCA 137.
That complaint must also be rejected. As we have noted, counsel for MB accepted the judge’s analysis of the distinct criminality to which the respective offences were directed. Although the ‘traffickable quantity’ offence related only to the first four weapons, one of them was the highly lethal assault weapon referred to earlier. Cumulation of one year of a sentence of 4 years’ imprisonment (itself not challenged) can only be seen as entirely appropriate to reflect the separate criminality involved.
Charge 11: the drive-by shooting
Charge 11 alleged that MB and his partner:
used a loaded firearm namely a shotgun to discharge shots at a premises, … with reckless disregard for the safety of any persons.
In our view, counsel for the Director in this Court was correct to characterise this as an offence of ‘reckless endangerment’. Counsel for MB did not suggest otherwise.
We start our consideration of the sentence of 8 years and 6 months’ imprisonment by setting out the judge’s description of the lead-up to the commission of the offence. His Honour said:
One might have thought that in the aftermath of the police search of Mr Bentley’s premises on 29 January 2019, you, Mr Bruce, would have decided to lie low. You did not. Fully aware of the potential for you to be identified as being party to handling the semi-automatic assault rifle, you continued on with your criminal endeavours.
On 6 February 2019, you made arrangements, which by then were in full swing, to take possession from Mr Conden of the Adler lever action shotgun, one of the six firearms, the subject of you being in possession of firearms as a prohibited person. This Adler lever action shotgun was, of course, single-barrelled and as will be revealed it was capable of rapid fire and with a shotgun shell in the breach, together with a maximum of six shells in the magazine. This weapon could fire seven times without reloading.
…
Not only did you commence negotiations and arrangements with Mr Condon for the purchase of that Adler shotgun around 6 February 2019, and on
14 February 2019 you also had made arrangements for your purchase of the handgun from Mr Conden, variously referred to as a Beretta or a Colt in manufacture which was collected by Cursty Shields that same day. In fact, it was originally a starters gun which had been modified to fire live rounds by replacing the barrel. Again, that handgun was one of the six firearms that you possessed as a prohibited person in relation to Charge 4.A day later, on 15 February 2019, you made arrangements with Mr McGlone for a drive-by shooting, which occurred on the following morning at 3.30 am on 16 February 2019, being Charge 11.
Those bare facts speak to your determination to continue on your lawless conduct.[19]
[19]Reasons, [93]–[98].
After describing the commission of the offence in some detail, his Honour referred to what he had said in sentencing the co-offender Brooke, as follows:
Drive by shootings are by their nature designed to terrify and intimidate those the subject of such shootings. This is the type of event which is not only in this case terrifying to the occupants of that particular home but disturbing for the whole of the neighbourhood. This is offending in which it is difficult to identify the offenders. It is trite but essential to observe that people are entitled to feel safe in their own homes.[20]
[20]Ibid [120].
His Honour continued:
The weapon used was a shotgun. The shot was capable of significant penetration of windows, steel, garage doors, without stopping the shot from penetrating other items. No less than four cartridges were fired in rapid succession to the centre of the house and the garage area. At least two of those shots peppered the area near the front entry in the loungeroom. It is, as I have said, fortunate indeed that [the female occupant] was not in fact wounded by anyone or more of those shots.
…
You orchestrated this drive-by shooting, you arranged for the Adler shotgun to be provided to Mr McGlone, which you had just recently purchased from Mr Condon, as a prohibited person, you ensured the successful targeting of the premises in question by driving him and pointing out to him the target address, you gave him what directions he needed to have and you sought to distance yourself from the shooting by using the hire car, by using Mr McGlone. Later that very morning, you were in contact with [the female occupant], who you knew, appearing to be concerned for her. In a text you sent to her at 11.34 am you wrote ‘I came there but cops wouldn’t let me come in.’ She had no idea that you were behind the drive-by shooting of her home.
Finally, as I said, you questioned Mr McGlone to establish if the shooting met your expectations. Thus, your criminality and your moral culpability is again of high order, insofar as your moral culpability is concerned, complete.[21]
[21]Ibid [121], [123]–[124].
Counsel for MB took no issue with any aspect of his Honour’s characterisation of what had occurred. He acknowledged that MB’s intention had been ‘to terrify and intimidate’ and that the firing of shots into the house, rather than over it, when people were known to be inside increased the dangerousness of the conduct and the objective gravity of the offence, because of the risk of serious injury.
The sole basis of the complaint of manifest excess was that the sentence of 8 years and 6 months was ‘out of whack’ with the sentences considered by this Court in Atkinson v The Queen.[22] In that case, the offender had — on three separate occasions — fired shots at or near the house of his former partner. On the first occasion, he fired two shots, one of which went through a front window into the lounge room. On the other occasions, shots hit the garage door. The sentence for the first offence was 4 years and 6 months’ imprisonment; for the second, 4 years; and, for the third, 3 years and 6 months.
[22][2021] VSCA 127 (‘Atkinson’).
In rejecting the complaint that those sentences were manifestly excessive, the Court (Priest and T Forrest JJA) said:
We are also unable to see that the individual sentences on charges 6, 7 and 8 are other than proportionate to the seriousness of the applicant’s offending. It is an inherently serious offence to discharge a firearm into premises or vehicles with a reckless disregard for the safety of others. And it will be remembered that, for the purposes of charge 6, the second bullet fired by the applicant travelled through the lounge room wall of the residence and became embedded in the wardrobe of the adjacent bedroom, occupied by MJ’s grandmother, in circumstances where both MJ and BR were present in the premises at the time. It was a very serious offence indeed.[23]
[23]Ibid [39].
As counsel for the Director pointed out, there are material differences between that case and this. First, the offender there was considerably younger (26) than MB (37). Secondly, and more importantly, the Adler shotgun was significantly more powerful than the weapon used in Atkinson. It was a semi-automatic, high-powered shotgun, which had the capacity to do real and significant damage. As counsel for the Director submitted, the more lethal the weapon used, the more serious the offence of reckless endangerment. Counsel for MB accepted, correctly, that the weapon used in Atkinson was ‘lower calibre and the risk was less’.
Thirdly, MB’s offence is distinguished by the degree of planning, direction and supervision involved. This was a calculated and cold-blooded attack. The fact that MB took McGlone past the premises in advance, and then closely monitored his movements before and after the shooting, underlines his determination to inflict terror on the occupants. The judge was right to describe the criminality as ‘high’.
Moreover, considerations of specific and general deterrence were also highly relevant here, given the lead-up as described by the judge. It was also very significant that the judge described MB’s moral culpability for this offence as ‘complete’. Counsel for the Director submitted that this should be taken as meaning that MB was ‘as morally culpable as it is possible to be’. Counsel for MB did not suggest otherwise.
Given the objective seriousness of this offence, and MB’s ‘complete’ moral culpability, there is no basis for the contention that the sentence of 8 years and 6 months was outside the range reasonably open.
As to the complaint of parity, it was said that the sentencing differential between MB and McGlone — 8 years and 6 months as against 4 years — could not reasonably be justified. We disagree. As is apparent, McGlone was simply — and literally — a hired gun. He acted under MB’s direction, with a weapon which MB provided, and committed an offence which — had it not been for MB setting these events in train — would never have taken place. It was well open to the judge to differentiate between the co-offenders in the way he did.
Total effective sentence
We turn finally to the contention that the orders for cumulation produced a total effective sentence and non-parole period which are manifestly excessive. It is convenient for this purpose to set out in full the sentencing judge’s concluding remarks, under the heading ‘Protection of the Community’. His Honour said:
So that leaves one final conclusion that I must come to and for you, in my sentencing of you, that conclusion is a fateful one.
It is useful to reflect on the overall nature of your crimes before I come to that conclusion. In a period of just under two and a half months, you, in late 2018 and early 2019 purchased almost five times a large commercial quantity of ice for on sale both to other dealers and also to some clients at street level.
You trafficked in cannabis for a period of about a week.
Being the subject of a firearms prohibition order, you had in your possession a semi-automatic military assault rifle modelled on the AK47, together with no less than 460 cartridges. You trying to sell that assault rifle onto the black market during that time period.
In addition, you had a 303 bolt action military rifle with ammunition. You had an under and over shotgun which had the barrel shortened and the butt stock replaced with a handgun style grip. A frightening weapon to behold.
You also had a .22 semi-automatic rifle which also had its barrel shortened and a screw thread on its end for attachment of a silencer, though you had none. The butt stock was replaced with a pistol grip. That rifle, because of its shortenings, met the definition of a handgun.
You also had a blank firing pistol which had been modified by the replacement of its original barrel with a homemade barrel capable of firing live rounds, which was found in the horse float on a property partially rented by you and your partner.
You also had in your possession the lever action Adler shotgun capable of firing no less than seven cartridges without reloading.
Police having seized the first four of those firearms on 29 January 2019 at Mr Bentley's premises, where they were stored on your behalf, you then went ahead and purchased the Adler shotgun from Mr Condon eight days later, on 6 February 2019. That Adler shotgun was given, at your direction, to Mr McGlone, who on 16 February 2019, ten days after your acquisition of it, used it to discharge no less than four cartridges into a suburban home during the drive-by shooting.
Two days before that drive-by shooting, there was an arson attack on two vehicles parked in the driveway of a different suburban home, on 14 February 2019.
Four days before that arson attack a staged collision occurred on 10 February 2019 as part of an insurance fraud. The insurance fraud on 10 February 2019, the arson attack on 14 February 2019, the drive-by shooting on 16 February 2019 were all organised by you using a male in each case to carry out the actual collision, the arson and the drive-by shooting.
The arrest of Mr Bentley and the seizure of the four firearms on 29 January 2019 did nothing to stop you from orchestrating the insurance fraud, the arson and the drive-by shooting, nor your trafficking in cannabis in that first week or so of February 2019, nor in continuing to traffic in ice.
And so, I come to the final conclusion. You, Matthew Bruce, are a menace to our community. There is therefore the need to impose a sentence which is, as submitted by the prosecution, a condign one, condign in the sense that is well deserved in its severity.[24]
[24]Reasons, [220]–[232].
As the Court pointed out to counsel for MB during the hearing, it is most unusual for a sentencing judge to describe an offender as ‘a menace to our community’. In our respectful opinion, the circumstances of this case fully justified that description. Once again, counsel for MB did not suggest otherwise.
As to matters in mitigation, the judge accepted that MB had had a very difficult childhood. He said:
You are your sister were both brought up in a dysfunctional family. Life from the word go was chaotic. It was marked by violence, drug and alcohol addiction by your parents, and basically you and your sister were left to fend for yourselves. You suffered abuse as well. As a result of a dysfunctional family life, life was a day-to-day thing with your stepfather and mother providing in a sporadic way for you.
In the end the physical abuse that your mother suffered at the hands of your stepfather was brought to an end when you confronted him at the age of 18 and he left the house permanently. As I gather it, food and clothing did not come in any orderly way much at all. Your education was disrupted. All the norms that one expects of a decent family life were absent. You had difficulties in your education and unsurprisingly you had in the end no skills to call upon.
Thus, you have no trade or qualifications and you did what was predominantly unskilled and labouring-type work. In 2018 you established your own earth-moving business; however, it failed a matter of months thereafter with the breakdown of the truck that had repair requirements of something in the order of $70,000. You have six other children from previous relationships and to your credit you have become the father to your children, as best you have been able, that you never had.[25]
[25]Ibid [162]–[164].
Further, his Honour noted that since his incarceration MB had turned himself into a model prisoner, taking on responsibilities within the prison system bettering himself, all of which was ‘commendable’. His Honour went on:
However, your villainous conduct in the three weeks leading up to your arrest speaks volumes, in my view, as to your prospects of rehabilitation at this juncture. You have, as I have said, been dealt with on numerous occasions in the Magistrates' Court to no avail. Your offending has dramatically increased in its gravity.
At this juncture in your life, and I emphasise at this juncture, at the age of 37, looking to all the material that I have examined carefully and hearing the submissions of [defence counsel] and the written submissions that he has provided to me, I assess your prospects of rehabilitation, at worst, as poor. At best, I am guarded as to your prospects of rehabilitation. That does not mean that in the future you cannot be rehabilitated. You have taken the significant strides whilst in custody to achieve rehabilitation but so far as I am concerned, it is early days yet and what you have achieved in custody is just that in a closed environment, not in the community. I do not wish to be thought to be dismissive of what you have done, as I have said, I congratulate you on what you have achieved in custody. I hope what you have done thus far continues and that your prospects of rehabilitation are proven by your own conduct in custody in the future. I can only examine your prospects on the material before me at this juncture.[26]
[26]Ibid [191]–[192].
His Honour further noted that MB’s pleas of guilty facilitated the course of justice, stating that he would get the full benefit of those pleas. His Honour also noted that he had moderated the sentences that he would otherwise have imposed because of the restrictions imposed on prisoners as a result of the COVID-19 pandemic.
Beyond the submissions directed at the individual sentences on charges 4 and 11, and the cumulation ordered in respect of the sentence on charge 6, little was said about the total effective sentence. As noted earlier, there was no challenge to the base sentence of 12 years’ imprisonment imposed for the LCQ trafficking offence.
In our respectful opinion, the orders for cumulation were wholly appropriate, given the need to reflect in the ultimate sentence the separate criminality involved in the individual offences or groups of offences. For example, the seriousness of the —quite separate — arson offence is apparent from the unchallenged sentence of 3 years’ imprisonment, of which 15 months was cumulated.
For the reasons which the judge gave, protection of the community was a matter of great significance, given the extraordinary persistence, scale and seriousness of MB’s offending, even in the face of police intervention to seize his weapons. General and specific deterrence were also highly important sentencing considerations in relation to all of the offences.
For these reasons, in our view, the total effective sentence and non-parole period were well within range in the unusual circumstances of this case.
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