Director of Public Prosecutions v Bruce

[2020] VCC 1321

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02110

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW BRUCE

EX TEMPORE REASONS FOR SENTENCE

JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 9, 10, 13, 16 July 2020 and 12 August 2020
DATE OF SENTENCE:	20 and 21 August 2020
CASE MAY BE CITED AS:	DPP v Bruce
MEDIUM NEUTRAL CITATION:	[2020] VCC 1321

Subject:  Criminal Law

Catchwords:  Trafficking in a drug of dependence (large commercial quantity); possession of firearm or firearm related item in contravention of a firearm prohibition order; negligently dealing with proceeds of crime; possession of a traffickable quantity of unregistered firearms; trafficking in a drug of dependence; attempting to obtain property by deception; arson ; discharge firearm at premises; possession of a drug of dependence.

Legislation Cited:   Drugs, Poisons and Controlled Substances Act 1981, ss 71, 71AC and 73; Firearms Act 1996, ss 7C(1) and 112B, 131A; Crimes Act 1958, ss 81(1), 194(4), 197(1), 197(2) and 321M.

Cases Cited:

Sentence:21 years and 6 months imprisonment, 15 years non-parole period; $800 fine.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Nicholas Cescato
For the Accused	Mr J. Patton	David McKenna

HIS HONOUR: 

THE CHARGES

1Matthew Bruce, you have pleaded guilty to the following charges: 

Charge 1, trafficking in a large commercial quantity of methylamphetamine, or as it is better known, ice, which carries with it a maximum penalty of life imprisonment.

Charge 4, possession of a firearm or firearm-related items, which carries with it a maximum penalty of 10 years' imprisonment.

Charge 5, negligently dealing with proceeds of crime, which carries with it a maximum penalty of five years' imprisonment.

Charge 6, possession of a trafficable quantity of firearms, which carries with it a maximum penalty of 10 years' imprisonment.

Charge 7, trafficking in cannabis, which carries with it a maximum penalty of 15 years' imprisonment.

Charge 8, attempting to obtain property by deception, which carries with it a maximum penalty of five years' imprisonment.

Charge 10, arson, which carries with it a maximum penalty of 15 years' imprisonment.

Charge 11, discharge of firearm at premises, which carries with it a maximum penalty of 15 years' imprisonment.

Charge 12, possession of a drug of dependence, which carries with it a maximum penalty of one years' imprisonment.

In addition, you have pleaded guilty to the following summary charges:

Summary Charge 6, committing an indictable offence whilst on bail, which carries with it a maximum penalty of three months' imprisonment, this being a rolled-up charge involving multiple commission of offences whilst on bail.

Summary Charge 9, possession of cartridge ammunition, which carries with it a maximum penalty of a large fine.

Summary Charge 14, making a false report to police, which carries with it a maximum penalty of 12 months' imprisonment.

Summary Charge 30, possess a controlled weapon without excuse, which carries with it a maximum penalty of 12 months' imprisonment.

Summary Charge 33, driving whilst authorisation was suspended, which carries with it a maximum penalty of two years' imprisonment. 

2At the time of the offending relating to all the charges, you were 35 years of age and now are 37. 

3In dealing with these various charges I have divided the charges up into five separate parts: 

Part A deals with the two charges of trafficking, being Charges 1 and 7.

Part B deals with firearms-related offences, being Charges 4, 5 and 6. 

Part C deals with the purchase of the Adler shotgun and the handgun from Mr Condon (Charge 4 in part), and the discharge of that Adler firearm at a premises Charge 11. 

Part D deals with the attempt to defraud the RACV, Charge 8.

Part E deals with the arson on the premises, where two cars were set on fire, Charge 10. 

PART A: TRAFFICKING IN METHYLAMPHETAMINE AND CANNABIS

Trafficking in Methylamphetamine (Ice)

4Dealing first with the two charges of trafficking, Charge 1, in a large commercial quantity of methylamphetamine, ice, and Charge 7, trafficking in cannabis. 

5During the course of dealing with those matters, I shall also deal with Summary Charges 6 and 33, committing an indictable offence whilst on bail and driving whilst authorisation was suspended.

6Towards the conclusion of my sentencing remarks, I will deal, somewhat exhaustively, with the issue of totality as it applies to all the charges before me, as well as the issue of standard sentencing as it applies to Charge 1, where the standard sentence is 16 years for trafficking in a large commercial quantity of methylamphetamine.

7Charge 1 relates to a period of trafficking between 18 November 2018 and 17 February 2019, during which you obtained large commercial quantities of methylamphetamine from two sources, a Mr Ali El-Ali and a group called '‘the Syndicate’'. 

8Ali El-Ali was aged 21 years at the time and lived in Kingsway Drive, Lalor.  He met you several years prior to this offending.  During the course of the offending he used two mobile services. The investigation revealed that between 27 January 2019 and 18 February 2019, he supplied you with a large quantity of methylamphetamine. 

9The prosecution contend that he supplied those drugs to you on six occasions.  The first an unknown quantity on unknown occasions before 27 January 2019.  The second on 27 January 2019, in which Jessica Shields, who was the sister of your partner, Cursty Shields, assisted you to purchase half a kilo of methylamphetamine from Mr El-Ali.  Those drugs were of poor quality and subsequently retrieved by him. 

10On 31 January 2019 you purchased 140 grams of methylamphetamine from him, on this third occasion with the assistance of your partner, Cursty Shields.  The fourth occasion was on 4 February 2019 when you purchased a further 168 grams of methylamphetamine from him, again with the assistance of Cursty Shields. On the fifth occasion on 8 February 2019 you purchased a further 196 grams from him. The sixth and final occasion on the 13 February 2019 you purchased 224 grams of methylamphetamine from him, with the assistance of your partner's sister, Jessica Shields.

11On 26 March 2019 a search was executed at Mr El-Ali's home in Lalor.  The investigators located a number of bags containing a mixture of methylamphetamine and another substance, which weighed a total of 139.1 grams.

12The investigation revealed that in total, Mr El-Ali had provided you with 1.328 kilograms of methylamphetamine. 

13Your second source of methylamphetamine was, as I have said, the Syndicate.  This group was identified as offenders of Asian descent, who engaged in significant drug trafficking, mainly in the western suburbs of Melbourne. 

14The Syndicate was an organised group of drug traffickers who engaged in the sale of methylamphetamines to individuals who were involved in large scale sales of drugs.  You were one of these next tier traffickers who purchased large quantities of methylamphetamine from them and used those purchases to run your own drug trafficking business.

15During the course of the investigation, during which your mobile phone, or phones, were listened into, your dealings with the Syndicate were further revealed.  The Syndicate supplied drugs to you on seven of nine occasions.  The first two occasions were occasions where there were arrangements for the purchase of methylamphetamine, but it cannot be said that those purchases were in fact completed, thus the seven of nine occasions. 

16Dealing with each of those occasions in short compass.  The first was on 18 November 2018, in which you arranged to purchase two ounces, that is 28 grams each, a total of 56 grams of methylamphetamine.  The second was three days later on 21 November 2018, where again you arranged to purchase two ounces, 58 grams, of methylamphetamine.  As I have said, on those two occasions it cannot be said that those purchases actually resulted in you obtaining possession of those quantities of methylamphetamine. 

17The third occasion was three days later on 24 November 2018, when you purchased three ounces of methylamphetamine, that is 84 grams.  The fourth, on 7 December 2018, where you then purchased ten ounces, 280 grams of methylamphetamine.  The fifth, a week later on 14 December 2018 when you purchased a half a kilogram, 500 grams, of methylamphetamine.  The sixth on 27 December 2019, where you purchased another half kilogram of methylamphetamine.  The seventh, 8 January 2018, when you purchased five ounces, 140 grams of methylamphetamine.  The eighth on 25 January 2019, where Jessica Shields assisted you to purchase ten ounces, or 280 grams of methylamphetamine.  The ninth occurred on 9 February 2019, when you purchased half a kilogram of methylamphetamine.

18In total the investigation revealed that the Syndicate provided you with 2.396 kilograms of methylamphetamine. 

19Of course, these quantities are the quantities where the prosecution can identify the actual quantities of methylamphetamine that you purchased.  They do not define your trafficking during this period of time as it was also revealed during the investigation that you were in possession of unknown quantities of methylamphetamine during the course of the investigation.

20Summary Charge 6 relates to committing an indictable offence whilst on bail as a rolled-up charge in relation to you.  One occasion, despite being disqualified from driving, you drove to meetings with both your suppliers, the Syndicate and Mr El-Ali, in your motor vehicle, registered ‘FEARD’.  This relates to, among others, instances of Summary Charge 33, drive whilst disqualified.  Another instance of you driving whilst disqualified occurred on 18 November 2018, as per paragraphs 52 and 53 of the prosecution opening, where you drove to meet a member of the Syndicate in order to purchase methylamphetamine.

21So, I turn more broadly to that methylamphetamine trafficking business.  At the time of this offending you lived in a house in Embleton Chase, Melton South with your de facto partner, Cursty Shields.  You also had a sexual relationship with her sister, Jessica, unbeknown to her sister, your partner, Cursty Shields. 

22In the prosecution opening at paragraph 7, Exhibit 36, there is reference to you being a patched member of the Rebels Outlaw Motorcycle Gang and indeed that you held the position of Sergeant at Arms of the Melbourne Chapter of that gang.  Whilst that fact may be something that sells newspapers, it is of no moment whatsoever in my sentencing of you and so I put it entirely aside. 

23In addition to intercepting telephone calls, pursuant to a warrant, that you made on a mobile phone that you were using, investigators also observed your conduct and others associated with you using covert surveillance operatives.  In the course of the investigation, surveillance tracking devices were also installed in your vehicle, a Holden Commodore, registered under the name ‘FEARD’ and another hired motor vehicle registration ‘1LM1KD’. 

24It was through the listening to and analysis of those conversations that the investigators were able to identify the people who were associated with you and assisted you in your drug dealing and, as transpired, other offending. 

25This network of persons who were, in one way or the other, of assistance to you during the course of your offending, included your twin sister, Sarah Bruce, your de facto partner, Cursty Shields, as I have said, as well as her sister, Jessica. 

26Cursty Shields at the time was 30 years of age.  You had a one-year-old daughter to her called Aubree.  She had also staying in that family home, her two sons from a previous relationship. 

27It is against that background that the investigation proceeded.  It revealed that in relation to your business of drug trafficking, you had developed a network of clients, the some of whom you were dealing with as street level clients.  Within that network you were the primary supplier of all the drugs being trafficked.  The investigation revealed that the trafficking was a commercial enterprise.  You routinely discussing business related issues, including supply, demand, stock and cash flow problems. 

28The primary commodity that you supplied was methylamphetamine to numerous associates.  However, you also trafficked in cannabis to a number of associates, but, as will be revealed, on a much lesser scale and for a much lesser period of time. 

29These intercepted communications also captured you encouraging and advising associates on how to conduct drug transactions.  You provided them with assistance, clarification and support in the conduct of their business.  The intercepted communications also revealed that you encouraged your affiliates to increase their trade, as your supply was increasing.  At times you encountered cash flow issues and were having difficulty in repaying your debts and so you would demand your customers pay you what they owed.

30When buying and selling methylamphetamine, you used an unsophisticated code that was identified over the course of the telephone intercepts.  The code referred to drug types, quantities, prices and transactions.  Key phrases of the code were identified and are set out in paragraph 36 of the Amended General Summary of Prosecution Opening, which I will call, 'the prosecution opening'.

31Included in that basic code was the use of the letter ‘k’ or 'key' as a code for kilogram; 'fag' or 'full one' referenced to 28 grams, being a full ounce of methylamphetamine; ‘8 ball' or 'all', a code for 3.5 grams; 'paper' and other variants was code for money; 'green' was code for cannabis' and 'cold' was code for methylamphetamine and so on.

32The amount that you paid for drugs fluctuated as the quantities that you purchased and the market for the drugs changed.  The amount of drugs you sold also changes, depending on the available supply and other factors.  Some of the prices for the quantities of methylamphetamine were also identified.  Half a kilo of methylamphetamine was purchased by you for on-sale at a price between $50,000 to $51,000; an ounce of methylamphetamine was commonly sold by you for $3,400 to $3,800; 14 grams, a half bag, was commonly sold for $1,850; 7 grams, a quarter, or a ‘seven’, was commonly sold for $900; 3.5 grams was commonly sold for $450; a half pound of cannabis was sold commonly for $1,800, whereas a quarter pound for $900. 

33As stated, the investigations revealed that during the period in question, you received a total of 1.228 kilograms of methylamphetamine from Ali El-Ali and 2.396 kilograms of methylamphetamine from The Syndicate.  Consequently, the investigation revealed that you obtained approximately 3.624 kilograms of methylamphetamine during the time alleged in Charge 1.

34On 1 November 2017, the definition of a large commercial quantity was changed by Parliament, reducing a large commercial quantity from what had been one kilogram mixed to 750 grams, whilst the defined quantity of a large commercial quantity of pure methylamphetamine remained at 500 grams and the commercial quantity of methylamphetamine remained at 250 grams mixed or 50 grams pure. 

35Given the total quantifiable amount of methylamphetamine that you purchased and received of 3.624 kilograms mixed, this means that during the period of your trafficking in methylamphetamine from 18 November 2018 to 17 February 2019, a period of three months, you trafficked in no less than 4.8 times a large commercial quantity of ice.  The details of the various transactions are set out in paragraphs 45 to 95 of the prosecution opening. 

Trafficking in Cannabis

36Turning from your trafficking in methylamphetamine to the other charge of trafficking in cannabis, Charge 7, this is trafficking which occurred during a relatively limited period of time, from 1 February 2019 to 7 February 2019, a period of but six days.

37On 1 February 2019 you had a conversation with an Anthony Egan and advised him that you were 95 per cent sure that you would have a few pounds, as in cannabis, that night and that he would do a ‘QP’, a quarter pound, for $850.  The discussion revealed that you were collecting a few pounds of cannabis for sale.  You arranged for your partner, Cursty Shields, to deliver a quarter pound of cannabis to Mr Egan for the suggested sum of $850. 

38The captured communications also revealed that in early-February 2019 you also sold a quantity of cannabis to an unknown male and on 3 February 2019 an unknown person sent an SMS asking you for a 'Q', i.e. a quarter pound of cannabis.  You responded that you would sell him a ‘Q’ for $900.  This male subsequently contacted you on 4 February 2019, only to complain that the cannabis was of poor quality. 

39On the evening of 6 February 2019, Anthony Egan again discussed purchasing cannabis from you.  He asked:  'What was the price of the green or is it the same yeah?' to which you replied:  'You gave me $1800 last time that would be $900, I’ve got a little bit of that left tomorrow I will have a pound of better stuff that will be $950, in four weeks I should have 100 pounds of grouse shit’.  Of course, I am only to sentence you for the trafficking between the six days in early-February 2019, not some period later, though it does reveal your moral culpability for the trafficking which I must sentence you is complete. 

40Finally, in relation to Charge 7, on 7 February 2019 in the late afternoon, you and Jessica Shields had a conversation, in which she stated:  'Can you run me to Tracy’s to give her a sale? ' She further stated:  'He’s in Collingwood now making another sale for you'.  You then asked:  'Who are the vallies (Valium for? ' to which she responded:  'I gave Amanda one though’, to which you responded:  'I gave her three last night with a bit of bud' i.e. cannabis.  Of course, the sale of Valium is of no moment to me.

41Again on 8 February 2019 the tracking data confirmed that you picked up Jessica Shields' motor vehicle, attending at Mr El-Ali's address in Lalor to collect eight ounces of methylamphetamine, before returning to your home address, another instance of driving whilst disqualified, subject of Summary Charge 33.

42Upon your arrest, and Ms Shields' arrest whilst you were in custody, search warrants were executed at your home in Embleton Chase, Melton South.  Among other things that were found, in the master bedroom were three vials containing clear liquid testosterone, which was later analysed and found to contain methandienone weighing 22.7 grams.  This relates to Charge 12 of possession of a drug of dependence. 

43In addition, a black satchel bag in a black backpack was recovered by police and was found to contain 12 MDMA capsules, totalling 1.3 grams, which tested positive for MDMA, and is another one of the drugs which is the subject of Charge 12, possession of a drug of dependence.  In addition, in the boot of the vehicle, police seized six zip-lock bags testing positive to methylamphetamine.

44Turning to the criminality, as revealed in that offending concerning Charge 1, the duration of your trafficking in a large commercial quantity of methylamphetamine was three months, a not inconsiderable period of time.  You were purchasing relatively large quantities from no less than two suppliers.  As I have already indicated, the total quantity that you purchased from those two suppliers was 3.624 kilograms.  This in itself evidences in a significant way the level of your trafficking in ice. 

45As I have already said, you trafficked in no less than 4.8 times the large commercial quantity.  A large commercial quantity is the threshold for the maximum penalty set by Parliament of life imprisonment.  You purchased those quantities of methylamphetamine to supply on to your network of clients, one of whom was your own sister, Sarah Bruce. 

46Whilst you used code words that were not sophisticated, nonetheless, this too demonstrates the level of your criminality, showing its commerciality.  You were the principal and the sole principal of this drug trafficking business in ice.  In order to facilitate and further your business, you encouraged and assisted others who were your clients in their businesses. 

47You used your partner, Cursty Shields, and Jessica Shields to assist you in your business, as well as Sarah Bruce.  See generally in relation to Jessica Shields, paragraphs 66 to 70, 75, 92, 112, 114, 119 of the prosecution opening and in relation to Cursty Shields, paragraphs 88 and 91 to 94 and finally in relation to your twin sister, Sarah Bruce, paragraphs 77, 111 and 120.

48Your sole motive for trafficking in ice was profit.  The fact that Parliament has set life imprisonment, and it being the highest maximum penalty Parliament has passed, indicates the gravity of the offending for which I must sentence you.  In addition, on this Charge 1, Parliament has included that charge as part of the standard sentencing regime, setting 16 years as the standard sentence, a matter which I will return to in some considerable detail later in my sentencing reasons.

49As I have already indicated, your trafficking in cannabis was over a relatively short period of time, but as is revealed by those facts, as I have set out, it was an intense period of trafficking in not inconsiderable quantities of cannabis to a number of persons who you were supplying in relatively large quantities. 

PART B: THE FIREARMS OFFENCES

50So, I turn to the second set of charges relating to firearms offences being Charges 4, 5 and 6.  Charge 4 relates to the possession of no less than six firearms as a prohibited person.  Charge 5 is a charge of negligently dealing with proceeds of crime, being a 303 rifle that had earlier been stolen and is one of the weapons the subject of Charge 4.  Finally, Charge 6, possession of a trafficable quantity of unregistered firearms.  These are the four firearms found at the home of Mr Bentley on 29 January 2017 which are also four of the six firearms the subject of Charge 4.

51I will come in more detail to the differences, in particular, between Charges 4, possession of a firearm as a prohibited person and Charge 6, possession of a trafficable quantity of unregistered firearms.  Each of those charges have distinctions inherent in the ingredients of those offences. 

52Before I turn to the factual scenarios I do so with one caveat: I accept that there is no established connection between the trafficking offences, Charges 1 and 7, and the firearm offences that I am about to consider.  Sometimes such a connection can be established as an aggravating feature.  It does not exist in this case.

53On 9 August 2018, you were served with a firearms prohibition order, pursuant to the provisions of the Firearms Act by a Detective Sergeant Mercovich.  That order was active until 9 August 2028, a period of 10 years.  As such, you were a prohibited person, as defined in the Firearms Act1996. 

54Despite the recency of the service of that 10 year order in early-August 2018, communications intercepted during the course of the investigation established that some days up to 29 January 2019, you were storing four firearms, including a semi-automatic assault rifle, at the home of an associate of yours, Matthew Bentley.  You treated Mr Bentley's home as a safe house, in the belief that his house was a “clean” address.  That is, a place where the guns could be stored without the risk of police attention.

55The intercepted communications revealed that Mr Bentley was knowingly storing those firearms, in addition to purchasing small quantities of methylamphetamine from you.  Your partner, Cursty Shields, was fully aware that you were storing firearms at Mr Bentley's home and was actively assisting you in the possession and use of the firearms. 

56There are a number of conversations and messages involving Mr Bentley, Cursty Shields and yourself over the Australia Day long weekend.  On 27 and 28 January 2019, investigators intercepted a series of text messages, telephone conversations and images, which indicated that you were in possession of, test firing and attempting to sell the assault rifle.  This assault rifle was a semi-automatic of Chinese manufacture modelled on the classic Russian AK47 rifle.  I will be coming in more detail to that gun and the other guns that were in your possession. 

57On 29 January 2019 investigators searched the home of Matthew Bentley and found stored there no less than four firearms.  The first was the 303 bolt action rifle, a classic military weapon used in both the First and Second World Wars, together with ammunition.  The second was the SKS military assault semi-automatic rifle with ammunition. The third was a under and over cut down shotgun with ammunition.  The fourth, a handgun in a pillowcase which was in fact a cut down .22 long rifle.  The last two were classified as handguns due to their shortened length.

58Leading up to that search on 29 January 2019, were a series of intercepted conversations between yourself and Mr Bentley related to you supplying him with methylamphetamine and the semi-automatic assault rifle later on in the conversations. 

59On Thursday 24 January 2019, the two of you spoke about you, at Mr Bentley's behest, to ‘call around to my joint', discussing Bentley purchasing 3.5 grams of methylamphetamine and what he owed you, saying:  'just another ball’, I’ll owe you $350 after that’. More pertinently to the firearms, on 26 January 2019, Sarah Bruce contacted you then asked:  'Hey need a pic of any bang bangs for sale and the ak’. You sent her a photograph of a black machine gun, stating:  'That's 25k tho that’s all there is’. This, of course, is a reference to the AK assault rifle which I have described above.

60You also told your sister that you were selling the firearm for $25,000 and that it comes with 100 rounds of ammunition.  Also, shortly after that conversation, you sent your sister a multimedia message containing a photograph of a black coloured assault rifle, the same semi-automatic rifle I have described above.

61The following day, Sunday 27 January 2019, you sent a threatening message to an unknown male, asking:  'Does he want me to bring my machine gun up there'.  Again, another reference to the assault rifle.  You significantly describing it as a ‘machine gun’. 

62That Sunday, at 10:33 am you spoke with Mr Bentley and had the following conversation set out at paragraph 163 of the prosecution opening: 

Bentley:  'I need to get some more', this of course is a reference to drugs. 

You:  'You need to get more?' 

Bentley:  'Yeh.' 

You:  'I'm just going to get a haircut and then I was going to go past yours and grab that thing but umm once I finish my haircut I'll let you know when I'm near yours if you want just grab that guitar case for me and bring it to my house’.

Bentley:  'Yeah sweet bro.' 

You:  'All right, it will make it easier for me.' 

Bentley:  'Do you need anything else or is that it?  You:  'Have a look in the guitar case for me there should be a plastic bag with things in it and there should be a box with things in it, if all that's in it then everything's in there'. 

Bentley:  'All right do you want name to bring the purple one just in case'. 

You:  'The purple bag?' 

Bentley:  'MMM.' 

You:  'Nah, I should be all right with everything I'm pretty sure everything I need for that one should be in the guitar case.' 

Bentley:  'Sweet as bro.' 

You:  'Obviously before I leave to go and test ill fucking have a look myself if there’s anything else I need I know where to come'. 

Bentley:  'All right sweet.'

63At 5 pm, you sent Jessica Shields a multimedia message containing a photograph of you holding the assault rifle in your bathroom with your one year old daughter, Aubree, in the background. 

64Later that Sunday evening at 7.11 pm, you spoke to your partner, Cursty Shields, and said, 'I want to fix that part and get it back to Matts tonight'. 

65At 9.11 pm, you spoke to your sister Sarah Bruce and said, 'It’s starting to fucking piss me off I need to fucking sell that fucking machine gun did that guy want it or not? ' 

66Later you said: 'I'll send you a fucking 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 realised the power in it'.

67Later still at 9.58 pm, you sent an unknown person a multimedia messaged containing a photograph of the assault rifle with boxes of ammunition lying on the bed inside the master bedroom of your home address. 

68At 10.24 pm and 11.17 pm, you and Mr Bentley had further conversations, in which you said:  

You: 'Can I bring my guitar back over in about an hour?' 

Bentley:'Yeah Sweet bro’.  You:  'I'll be at yours in like not even a minute'. 

69Still later that evening between 10.43 pm and 10.46 pm, you and Mr Bentley had two further conversation about that assault rifle saying:  

You: 'Is your misses up? Because I want to drop the guitar off it that’s all right. I’ll be picking it up at nine in the morning if that’s all tight because I didn’t end up going out today, I’ll go out tomorrow’.

Bentley: 'She's just jumped in the shower, 45 minutes she reckons.'

You: 'Can she make it any quicker than 45?' 

Bentley: 'I will do my best bro'.

70A few minutes later at 10.56 pm, you had a conversation with an unknown male: 

You: 'I'm not 100% sure if it’s an AK as it’s got a custom stock on it. It’s either and AK, M4, SKS all right, they all shoot the same round which is an AK round you seen the video of me shooting it’.

71At 11.35 pm, you and your sister again spoke about selling the assault rifle:

You:  'Did you ask the guy if he wants that thing or not?' 

Sarah Bruce: 'Yeh', and something inaudible. 

You:  'I've got over 380 rounds of it.' 

Sarah Bruce:  'All right that helps, there gonna be hard to get’.

You: 'There not hard to get I can get them’.

You also said:  'I've got 380 rounds with me at the moment, but I've got more.' 

Sarah Bruce:  'How much are there gonna be?' 

You:  'If he buys the thing he can have all the rounds and if he needs more then I’ve gotta find out the price when he needs more, 380 rounds are gonna last a long time, there’s probably about six hundred, seven hundred rounds to be honest with ya, all up’.

You also said:  'I want $27500 for it.' 

Sarah Bruce:  'You told me 25 the other night'. 

You said:  'That was with fuck all rounds.' 

You concluded saying:  'I can get 35 for it Sarah if I wait a week. He can even come to watch a video on her phone when it's clearer’ 

72At 11.39 pm you spoke to Anthony Egan:  

You: 'I'm going home to pick up some guns take them somewhere else'. 

68A minute before midnight you called Mr Bentley: 

You: 'I'm almost at yours'. 

Bentley:  'Ok'. 

Two minutes later your vehicle ‘FEARD’ was observed arriving at Mr Bentley's home.

The following morning Monday 28 January at 11.35am you and your partner Cursty Shields had a conversation about going to the Wombat State Forest to test-fire that machine gun. 

You:  'Do you reckon you could take me back out to wombat today?’

Shields ; 'Why?' 

You:'Because I want to put that thing back in place and I want to try it properly before I go whinging to the cunt'. 

Shields:  'Does no one want to buy it?'

You:'Someone will probably buy it I don’t want it coming back on my arse'. 

Shields:  'Do you want to go play with daddy's gun?'

You:  'Hey?' 

Shields:  'I'm talking to Aubree.' 

You:  'What are you saying?' 

Shields:'I said do you want to go play with daddy’s gun’, there is a baby's voice in the background. 

You:  'If you're going to Bunnings can you get me some ear plugs?'  

Shields:  'Yeah I'll get her some too.' 

You:  'It's going to be loud.' 

Shields:  'I wonder what she will be like hearing it.' 

You:'I want to make it work on full auto and this time I want you to record the whole fucking thing.' 

Shields:  'I do but, you just stop and you fucking fuck around with the thing and that I don’t know if you want someone to see that I’m not gonna sit there fucking for however long we were there we there for forty minutes.'

69A little after noon that same day at 12.09 pm, you again spoke to Mr Bentley:

You: 'Where are you?' 

Bentley:  'At home.' 

You:  'I need to pick up my guitar bro.' 

Bentley:  'All right.' 

You:  'Yeah I need to go back out today.' 

Bentley:  No dramas bro, not a problem.' 

You:  'I'll come around in a second, cya coon bro'. 

70The purpose of these arrangements was for you to ‘fix’ the semi-automatic rifle so that ‘… it would work on full auto …’ and Cursty Shields would record your shooting it on full-automatic at the Wombat State Forrest.  Earlier you had only been able to fire it on single shot mode and semi-automatic mode of a three-shot burst as recorded by Cursty Shields in Exhibit 8.  It was planned that this further test firing of the assault rifle would occur that Monday 28 January but for unknown reasons it was decided by you that the assault rifle would be collected from you at about 9am the following morning Tuesday 29 January.

71Fortunately, at 7.30am the police arrived before you at Mr Bentley’s home and  located and seized the assault rifle as well as the bolt action 303 rifle, the sawn-off under and over shotgun, and the semi-automatic cut down .22 rifle. 

72What occurred subsequently is revealing.  Intercepted communications reveal that you became aware of the police search shortly after its commencement.  You drove to Mr Bentley's home whilst police were searching Mr Bentley's home.  You were intending to collect the assault rifle, but you did not enter the property because police were present. 

73Indeed, at 8.58 am that same morning, 29 January 2019, you called Jessica Shields and told her:

You: 'The cops are everywhere at my mates house where all my shit is, they’re out the front of his house and he’s not answering his fucking phone’.

Jessica Shields: 'Don't go there’.

74A few minutes later you asked your partner, Cursty Shields, to drive past Mr Bentley's home to see if the police were there saying:

You: 'Before you go home you should go back past there.' 

Cursty Shields:  'Why?' 

You:'Well I dunno see if there actually going in his house’, ‘Or they're just out the front?' 

Cursty Shields:   'If he gets done with it, what happens?' 

You:  'If he talks, I'm fucked.' 

Cursty Shields:  'You're not gonna get arrested your prints are on nothing’, ‘Did you wipe down that other one?' 

You:  'Nothings wiped down my prints are on everything'. 

Cursty Shields:  'Then mine are to'. 

You:  'Why what did you touch?' 

Cursty Shields:  'The big one the other day'. 

You:  'It doesn't matter they'll charge me they won't charge you.' 

75Later on you have yet another conversation with Cursty Shields:

Cursty Shields ‘Babe stop stressing'. 

You:'It's a lot of fucking money I'm gonna end up selling the car if I have to'. 

76Later still you had multiple conversations with several known and unknown associates regarding the fact that your firearms had been seized during the search of Mr Bentley's property.  Among other things, you said to Mr El-Ali:  

'They were standing out the front of his house he’s got my fucking machine gun there’ … ‘That's the only place I had to put it, he was clean’ ….  ‘If they got a warrant for him they won't raid’ …. ‘That things probably lost because my mate’s house is getting raided and that’s where all my toys are. I’ve just lost everything mate, machine guns, everything’ … ‘If they go into his house I’m fucked cause my prints are over everything and I don’t know if he’s staunch enough to not say a word, machine guns a big charge bro’ … ‘I lost everything today bro, my stash place got done, I lost me machine gun, I lost everything, I lost 40k worth of shit bro, oozies, handguns, fucking machine guns, I just hope the cunt sticks fat and doesn’t drop me name’ … ‘If they fingerprint them my prints are on them anyways’ … ‘Ones a machine gun, they could fucking, terrorist charges’ … ‘He might make bail, I'm gonna listen to his tape’ … ‘They’ve gotta prove their mine, I’ve got no talk on anything, that they’re mine, all they can do is fingerprint, my fingerprints are on it hey I could have touched them two years ago, just because I touched them doesn’t prove its mine, they weren’t found on my possession’ … ‘Gotta remember he’s facing some big charges that machine gun is five years to twenty years’ … ‘They raided him for drugs and got everything. I lost sixty grant worth of tools, I just hope the cunts sticks fat as he’s looking at twenty years I’m telling ya’ … ‘A full automatic is a terrorism charge’ … ‘He got done today over drugs’ … ‘He got caught with about $100 grand worth of hardware, I mean full power tools, yeah you know automatic shit’.

77On 1 February 2019, you have a conversation with a female:  

You: 'Some shit has happened'. 

Female:  'What’s happened?' 

You:  'My stash house got done over the other day by cops and they got a lot of guns, got my fingerprints all over them. My mate hasn’t made bail yet, he hasn’t gave my name yet but if they fingerprint them then I know there gonna come for me, there’s stuff there that could put me away for fifteen to twenty years'. 

Later you also said to her:

You: 'Hopefully they don’t fingerprint the shit, feel sorry for him tho'.

Female 'Why?' 

You:'One of the things was an AK47 with 380 rounds'. 

She:'Is he part of the club?' 

You:'No’ … ‘That's like a 15 years sentence that's a terrorism charge'. 

She:'Be careful' she says. 

You: 'I am careful his house was meant to be safe' and on and on it goes.

78When investigators, having arrested Cursty Shields, analysed a phone they found a video which was filmed of you in the forest with the guitar case nearby firing the assault rifle.  That video became Exhibit 8 on the pleas.  There you were casually smoking a cigarette whilst firing the assault rifle, firing one round and then a burst of three on semi-automatic. 

79The four firearms that were found at Matthew Bentley's premises on 29 January 2019, the subject of Charge 6, possession of a trafficable quantity of firearms, were the following: 

(1) the bolt action 303 rifle;

(2) a cut-down under and over shotgun;

(3) the SKS semi-automatic military assault rifle with ammunition;

(4) the handgun in the pillowcase.  This is a handgun which I have already described as being a cut-down .22 longarm rifle.  It had been fitted with a white pistol grip or handgrip.  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 Mr Griffiths could only have been used for the attachment of a silencer.  No silencer was found.

80In addition to those four firearms, Charge 4 relates to your possession of those firearms as a prohibited person, plus a further two firearms, both acquired by you from Mr Condon.  A staggering feature of your acquisition of those two firearms from Mr Condon, is that you acquired them after the loss of the firearms upon their seizure on 29 January 2019. 

81The first of those two additional firearms was an Adler lever action shotgun, which was collected in your behalf from Mr Condon on 6 February 2019, was used 10 days later by a David McGlone, who you had employed to do the drive-by shooting, Charge 11.

82The second additional firearm, was recovered by police on 17 February 2019, was a handgun, variously described as a Beretta or Colt, when they searched a horse float that was used by both you and your partner, Cursty Shields, for secure storage. 

83Thus, in relation to Charge 4, you had in your possession no less than six firearms as a prohibited person.  Two were military weapons, the 303 rifle, being item 4 in Mr Griffiths' statement and the SKS military semi-automatic assault rifle, item 2.  There were two shotguns, the Adler shotgun, acquired after the search of Mr Bentley's premises, from Mr Condon, item 23, and the cut down under and over shotgun, item 5. Two were handguns, the modified blank-firing handgun, which was after the modification, capable of live fire, item 27, and the cut down .22 rifle, item 6.

84All six firearms were in working order.  Thus, you as a prohibited person, possessed firearms of great lethality, considerable variety and in some cases, concealability.  

85In relation to Charge 6, the charge of having a trafficable quantity of firearms, that of course, as I have said, relates to the four firearms seized from Mr Bentley's premises.  A trafficable quantity of firearms is two or more.  One of them, the military assault rifle, was for sale, for either $25,000 or $27,000, depending on whether ammunition was sold with it.

86I 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. 

87There is a distinction between Charges 4 and 6. 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. 

88Charge 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. 

89Here you had not two or more, you had four such firearms hidden, you thought, safely in Mr Bentley's premises, one of which, the assault rifle, you were trying to sell, it being without doubt the most lethal weapon that you had in your possession.  If there be any doubt about the lethality of that semi-automatic assault rifle, I would suggest the doubter or doubters read the oral evidence of the firearms expert Mr Griffiths and views the video footage of its firing Exhibit 8. Whilst you were trying to ‘fix’ that assault rifle so that it could fire on ‘auto’ that, according to Mr Griffiths, could be done by buying a kit on Amazon for $200.

90I must say in relation to Charge 5, negligently dealing in proceeds of crime, being the bolt action 303 rifle, I found that charge a complete distraction.

91In sentencing you on Charges 4 and 6, submissions have been made that there is a need for considerable concurrency.  Whilst there are differences, as I have tried to articulate, in those two charges, I agree with that submission.  There is a risk, and a considerable risk, of double punishment.  In the end, the sentences that I will impose on Charges 4 and 6 are sentences which I would impose if those charges stood alone, but making the appropriate adjustment in order to ensure that there is not double punishment by only cumulating a small period of time to be served in addition on Charge 6 to the sentence that I impose on Charge 4.  On Charge 5, such sentences I impose will be made entirely concurrent with those sentences and other sentences.

PART C: THE DRIVE BY SHOOTING

92Part C incorporates Charge 4, but focuses upon Charge 11, which is the discharge of a firearm into premises. 

93One 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. 

94On 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. 

95A close-up photograph of that shotgun became Exhibit 2.  It was also photographed as one of the firearms that are set out in Exhibit 22, examined by Mr Griffiths.

96Not 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. 

97A 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. 

98Those bare facts speak to your determination to continue on your lawless conduct. 

99So, I turn in more detail to these matters concerning those two firearms, the Adler shotgun, the handgun and the Adler shotgun's later use in the drive-by shooting. 

100Intercepted communications on 6 February 2019 between 2.07 pm and 2.11 pm between yourself and Michael Condon evidence an arrangement between the two of you for you to make initial payment of $1,500 by way of direct transfer into his Commonwealth Bank account as a deposit for the purchase of the Adler shotgun.  Within a couple of minutes of that at 2.13 pm, you called Mr Condon and arranged for Cursty Shields to pick up the shotgun from his home in Phillip Street, Frankston.  This she did.  There was a problem with her picking it up because of bad weather, but she arrived at your premises at 9.21 pm that same day. 

101At 10.15 pm, she called you, asking you what you wanted her to do with the shotgun.  You gave her directions about where to store it and to take photographs of it.  Shortly thereafter, she arrived at Balmer Grange, Brookfield.  A section of this property was leased by the two of you and using a horse float, you stored firearms and other items there. She placed the shotgun there, together with other items given to her by Mr Condon and then returned home to Embleton Chase, Melton South.

102The arrangements that were made for the payment included, not only the deposit of $1,500, but an additional $500 per fortnight for four months.  And so, it was that you would purchase this Adler shotgun for $5,500. 

103On 13 February 2019 you called Mr Condon and there was a discussion about Mr Condon getting a .22 handgun from you if you came across one. 

104On 14 February 2019 there was a further series of intercepted telephone conversations between you and Mr Condon concerning the provision by Mr Condon of a handgun to you, in exchange for another firearm.  Unbeknown to him, you did not intend to complete the transaction, but instead had planned to rip Mr Condon off, with the assistance of Mr El-Ali. 

105In a conversation that occurred at 11.23 am that day with Mr Condon, there is discussion about this transaction.  Later on, you received that further handgun, which fortunately was seized by police.  It was the modified blank-firing handgun that, as a result of the modification, could fire live rounds.

106So, we move on to the events leading up to the early hours of Saturday 16 February 2019, when at about 3.30 am, a drive-by shooting occurred at Lady Penrhyn Drive, Harkness. 

107On 15 February 2019 investigators intercepted a series of telephone conversations between yourself and Mr McGlone.  It was Mr McGlone who was later to be the person who fired no less than four shots at that home address.  You asked Mr McGlone if he still had shotty shells and indicated that he, Mr McGlone, would be doing the 'other thing' tonight. 

108Immediately after that telephone call your sister, Sarah Bruce, called Mr McGlone.  He called back and the call lasted about a minute.  Later that same evening at 11.26 pm, you called Mr McGlone and asked him how far from Sarah Bruce's house he was.  You then sent a text message to Cursty Shields asking her to pick up the 'big thing', a reference of course to the Adler shotgun. 

109Shortly after that at 11.37 pm, you called Cursty Shields and outlined the plan for the drive-by shooting.  You told her that you would pick up Mr McGlone and show him which house to shoot at.  You also told her that Mr McGlone would get the gun and do the drive-by shooting straightaway.  She drove the Commodore registered ‘FEARD’ towards Balmer Grange. 

110At 11.48 pm, you called Mr McGlone and gave him further instructions.  Mr McGlone told you that he was at Kmart with your sister, Sarah Bruce.  You also told Mr McGlone that you would show him the house that you wanted him to shoot up.  You told him that he, Mr McGlone, was to go to your premises to pick up the gun.

111Shortly after that Mr McGlone called Rodney Brooke.  Mr Brooke was to become, shortly prior to the actual drive-by shooting, the driver, leaving Mr McGlone able to be shooting from the passenger seat as the car was driven past the designated premises. 

112At 11.55 pm, Cursty Shields arrived at Balmer Grange, where she collected the Adler shotgun and ammunition, as requested by you. 

113At 1.14 am the following day, 16 February 2019, she called you and you told her that you had just shown Mr McGlone the house that was to be shot up.  In order to avoid police detection, rather than using the Holden Commodore, you used a hire car to show Mr McGlone the target address.  Unbeknown to you, of course, a tracking device had been installed in the car at the time by the authorities.

114At 1.39 am you called Mr McGlone and asked how far away he was.  You were told that he was waiting for Mr Brooke at some shops. 

115At 3.07 am, you called Mr McGlone and asked if he had done the drive-by shooting yet.  He replied that it would be done in 10 minutes.  And indeed, at about 3.30 am, the drive-by shooting occurred at Lady Penrhyn Drive, Harkness.  The house in the early hours of that morning was in fact occupied by two people, Anthony Lorenzo and Rebecca Murdoch.  Both were home at the time of the shooting.  This is a property located in a well built-up area, surrounded by other houses. 

116Shortly 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.  Ms Murdoch 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.  Mr Lorenzo 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. 

117Pellets 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.

118After 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. 

119At 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'.

120In sentencing Rodney Brooke on 4 May 2020, I said the following: 

'Drive by shooting 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.’

121The 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 Ms Murdoch was not in fact wounded by anyone or more of those shots.

122In conversation also that occurred after that shooting, you attempted to establish with Mr McGlone whether the window or windows had been shot. 

123You 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 Ms Murdach, 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. See Exhibit 18 text messages on 16 February 2019 starting at 6.18 am to 11.36 am between you and Ms Murdock at Deposition pages 3315, 3321 to 3325.

124Finally, 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.  But that does not, of course, end your criminal conduct.  From the very day you had become aware that the police had raided Mr Bentley's premises on 29 January 2019, the attempt to defraud took shape. 

PART D: THE ATTEMPT TO DEFRAUD THE RACV INSURANCE COMPANY

125Charge 8, an attempt to defraud, had its gestation on the very day of the police seizure of your five weapons at Mr Bentley's premises on 29 January 2019, and extended to 13 February 2019. 

126Again, one would have thought that you, having been aware of that search from 8.58 am that day, 29 January 2019, you would lie low.  See paragraphs 183 to 185.  But no, that same morning at 10.05 am, you were discussing with Cursty Shields doing an insurance job on her behalf.  See paragraphs 239 and following of the opening.

127I turn in more detail to that offending.  Between 29 January 2019 and 12 February 2019, investigators intercepted a series of text messages and telephone conversations, in which you, Cursty Shields, Sarah Bruce and a Peter Perlinski, arranging to damage Cursty Shields' motor vehicle, a purple Holden Commodore, which was sought to be damaged beyond repair, so as to make a false insurance claim and receive a cash payout from RACV.  This vehicle was in fact damaged at 3.55 am on Sunday 10 February 2019, however, investigators notified RACV that the insurance claim was fraudulent before any payment was made.

128Turning to the detail, on 29 January 2019 at 10.05 am, as I say, by then you were already aware of the police attendance at Mr Bentley's premises that morning, the following discussion occurred between yourself and Cursty Shields: 

Cursty Shields:  'Do you know anyone who can do an insurance job on this car ASAP?' 

You: 'Why?' 

Cursty Shields:  'Because me temperature gauge is fucking hot as fuck me cars fucked'. 

You:  'I’m gonna have to get a four-wheel drive but don’t talk about it on the phone they’re gonna want phone records'. 

Cursty Shields:  'What if it gets smashed?' 

You:  'Well maybe I don’t know'.

129Later that day at 2.26 pm, you call your sister, Sarah Bruce, and had a conversation with an unknown male, during which the following was said by you:  'Do you have any cars, I need it tonight’ … ‘I just need it to ram another car that's it'. 

130Then later that evening at 7.55 pm, you had a conversation with a male, during which you discussed damaging the vehicle that night. 

Male:  'Just sussing out what I'm doing tonight.' 

You:  'I just need to know 110% you're gonna do it'. 

Male:  'I'll get it done for you tonight; you will wake up to it.'

131The following afternoon, 30 January 2019 at 4.46 pm, there is another conversation between you and Cursty Shields,

Cursty Shields: 'I just wanna get a cheap run around car that's all'. 

You:  'You're gonna get the money in a week'. 

Cursty Shields:  'Matt I can't go a week without a car'. 

You:  'You've got my car'. 

132Another day later on 31 January 2019, you had another conversation with an unknown male at 10.07 pm about why the car had not yet been damaged.

You:  'For the last two nights he hasn't done what he said he's gonna do,  I need it done.' 

Male:  'All right cool, that thing with the trailer'. 

You:  'For the car out the front of mine'. 

Male:  'Why don’t you do it with mine?' 

You:  'Because the car can't move yeah, it's fucked, I can't be at fault because I've done a few of them’ and later you said:  'I want someone to do it at night time and take-off'. 

This is plainly a reference to somebody else. 

133A couple of days later on Saturday 2 February 2019 at 9.36 pm, you, Sarah Bruce and Cursty Shields discuss arranging for the car to be damaged.

Sarah Bruce:  'That guy is here.  Do you want it done or not?' 

You:  'I can get it done, I don't want to pay because I can get someone else to do it'. 

Sarah Bruce:  'He said he doesn't pay for the hotty so he's having fun'. 

You:  'Make sure it's the purple one don't touch my white car'. 

Sarah Bruce:  'Youse are gonna be woken up you know that?' 

You:  'That's why we want it done on the weekend instead of fucking'.

Sarah Bruce:  'All right ok'.  You:  'Just tell him to do it like 3 in the morning'. 

Later on, you continued: 

You: 'Do you want it done tonight or not, it's your call?' 

Sarah Bruce:  'Tell her I got the person ready to go'. 

You:  ‘Because the persons there now they want to know’ … ‘You probably will wake up to it, yeah just do it'.

You later on said: 

You: 'Make sure It’s gotta be non-repairable.' 

Sarah Bruce:  'Its 28 isn't it?' 

You:  'Yeh, it’s gotta be non-repairable it’s got to be straight in the pillar’.

134On Sunday 3 February 2019 at 11.24 am, you and an unknown male discuss why the car had not been damaged the previous night, with the male saying:  'Four hours I was walking around to 3.00am couldn't find your place last night.'  So that male, because he could not find your premises, could not do the job. 

135Five days later on 8 February 2019, you and Ms Shields discuss damaging the car the following week’

Cursty Shields:  'Can we just do the car next week or something, I don't want to do it tonight'. 

You:  'Why?' 

Cursty Shields:  'Because I just don't want to.' 

136The following day, 9 February 2019 at about 4.46 pm: 

Cursty Shields: 'I will when my car gets done and I get the cash I'll go.' 

Later that evening, have a conversation with a Mr Perlinski

Perlinski: 'I left her that car, the silver one'. 

You:  'She shouldn't be driving she probably got pulled over.' 

Perlinski:  'In that thing bro no way, it's a fucking Yaris, bro’ … ‘It's a silver Yaris, the number plate I'm not sure’ … ‘I can send you a photo of it’.

You:  'Yeah send me a photo.' 

137There were further conversations between you and Mr Perlinski.

You:  'We want it done tonight.' 

Perlinski:  'Yeah, mate as I said, yeah.' 

You:  'You need another car not in my street outside my street.' 

Perlinski: 'Yeh I know I've got all that planned it's all hooked up bro'. 

You:  'You gotta cover yourself to.' 

138At approximately 3.55 am on Sunday morning, 10 February 2019, Cursty Shields’ purple vehicle was parked out the front of her residence in Embleton Chase, when a stolen Yaris hatchback with a false rear numberplate and a correct front plate collided with the side of the vehicle. It was the same vehicle that was photographed and messaged to you on 9 February 2019 at 8.24 pm by Mr Perlinski. The driver of the stolen vehicle fled the collision scene. 

139As per arrangements, at 3.58 am Cursty Shields contacted 000 and notified police of the collision.  Two police officers were dispatched to attend the scene and commence an investigation.  A canine unit was also in attendance in an attempt to locate the offender as per the collision details reported by Ms Shields.  Summary Charge 14 relates to the false report to the police that you gave in relation to this incident. 

140The same day, 10 February 2019, Cursty Shields lodged a claim with RAVC Insurance stating her vehicle 'YIQ461 was parked on the street outside home and about 4am unknown rego hit rear right pushing YIQ461 up over the gutter onto the verge hitting a tree’.  The amount that would have been recovered but for the intervention of police as a settlement figure offered and accepted by Cursty Shields from RACV was $11,727.18.

141You, together with Ms Shields, agreed to stage a collision to write off her motor vehicle because it was defective.  In the early hours of the morning of Sunday, 10 February 2019 at 3.55 am that faked collision occurred.  You used a third party to stage the collision and used your own sister, Sarah Bruce, to initially find someone to do the job.  One such person could not find the premises, and so another, Mr Perlinski was brought in in his stead.  See paragraphs 245 and following and 249 and following of the opening.

142A necessary part of the scheme involved a false report to the police and the complete waste of police time and effort.  Deception and dishonesty were central to this endeavour.  You persisted in this scheme over a period of almost two weeks and but for the police intervention $11,727.18 would have been paid pursuant to this insurance fraud.

PART E: THE ARSON OF TWO CARS AT A RESIDENTIAN PREMESIS

143So, I come to the fifth and final part of your criminal enterprises.  Charge 10 is a charge of the arson of two motor vehicles on 14 February 2019.  At approximately 3 am on Thursday, 14 February 2019, two motor vehicles were set on fire at the home of Vicky Struths at Gamalite Drive, Harkness.  At the time Vicky Struths, her daughter Cassidy Coombes and her partner Jaye O'Connell were at home.  The vehicles were burnt out by a person named ‘Dave’, who is an associate of yours.

144‘Dave’ had been asked to damage the cars by you with the assistance of your sister again, Sarah Bruce.  This arson was carried out through you at the request of a Benjamin Hills, who was in prison at the time.  It appears that Mr Hills had a grudge against Jaye O'Connell, the partner of Ms Coombes.  Mr Hills at the time was in custody at Port Phillip Prison.  He was apparently a friend of yours.  There had been a dispute between Mr Hills, who resided with Jaye O'Connell at rental address in Devon Place, Melton before he was incarcerated on 18 December 2018.

145A part of this grudge by Mr Hills against Jaye O'Connell related to items said to be missing of his property after his incarceration.  Suffice it to say that there was an intense anger by Benjamin Hills against Mr O'Connell because of the way that he thought Mr O'Connell had treated the rental property and his property upon his incarceration.

146On 12 February 2019, as a result of a request by Mr Hills to organise an arson, you asked Jessica Shields on 12 February 2019 to get the address of Cassidy Coombes.  There was a number of telephone and other communications to that end asking her what her address is.  It culminated with a telephone call between you and Jessica Shields at 12 February 2019 at 11.39.

You: 'Yeah. I need you to get me that address.  I need it'. 

Jessica Shields 'I sent it to you'. 

And indeed, she had just a few minutes earlier sent a text message saying, '20 gamilte Dr'. 

You: 'I haven't gotten it yet'. 

Jessica Shields 'I think it's number 20'. 

You: 'Can you - can you please go and double check for me, please'. 

Jessica Shields: 'Okay'. 

You: 'It's important. I need it, like – come – like, go there, double check and then –‘.

Jessica Shields 'I looked on maps'. 

You 'Yeah, nuh, go there double check, yeah. Make sure it’s got – it’s gotta be the right house, all right.’

Jessica Shields 'She has the - there's little kids there too I think, but'.

You: 'No bullets are goin’ through the house, okay.' 

Jessica Shields: 'Okay.' 

You: 'Just - just get me the ad-address please.’

Jessica Shields: ‘All right.'

147So, you knew that the address was occupied.  You were told that there were kids there too.  Your response was a cavalier one:  ' No bullets are goin’ through the house’.  Well, that is true, as it happened. 

148On 13 February 2019 at 6.25 pm Benjamin Hills called you from gaol.  During the conversation you were told to ‘show some dash’ and to ‘get it done’.  In response you said, 'I'm getting it done', and then advised Mr Hills that he was going to have 'a barbecue tonight'.  This of course, in terms of the reference to barbecue, was code for arson.

149Later on, in that same call towards the conclusion you told Mr Hills, 'I'm having a BBQ tonight', to which Mr Hills responded, 'You're a sick cunt, you’re a funny cunt'.  He asked you to call him in the morning to advise whether or not the cars had been destroyed.  He also instructed you to deposit money into his bank account. 

150Shortly after having spoken to Mr Hills you spoke to your sister and during the conversation asked her what time 'Dave' was going to come.  You also told her that ‘the job’ must be done that night and that it had been 'ordered from gaol'.  Again at 11.15 am on Thursday, 14 February 2019, you spoke to your sister and told her to 'make sure it gets done'.  You also told her to send you an SMS message saying 'thanks for the BBQ last night' to confirm that the arson had occurred.

151At 3 am on Thursday, 14 February 2019. ‘Dave’ drove an unknown vehicle to Gamalite Drive, Harkness.  He exited the vehicle and poured petrol along the nature strip and up the driveway of the premises.  He poured petrol onto two vehicles that were in the driveway, a Hyundai iLoad van and a Nissan Pulsar sedan.  He set the petrol alight and the fire spread across the two vehicles. Both vehicles were in fact damaged beyond repair.  The Hyundai iLoad was valued at approximately $15,000 and the Nissan Pulsar $2,000. 

152Fire brigade officers attended the scene and extinguished the fire.  Local police also attended the scene and spoke to the occupants who said that they were asleep inside the house when the vehicles were set alight.  No persons were injured, however, both vehicles were damaged beyond repair and, but for the quick action of attending firefighters, the fire was prevented from spreading to nearby residential premises.

153At 9.57 am that day you spoke to Melissa Whyte, partner of Benjamin Hills.  During the call she told you that she was going to visit Mr Hills.  Later in the conversation you asked her to pass on a message to him, saying to her, 'Um, let him know I had a – fuckin’ wish he was out ‘cause I had a good barbeque last night.’ 

154Later still at 10.40 am on Thursday you had a conversation with Mr Hills. During the conversation there was mention of a barbecue.

You: 'Fuckin’ wh- fuckin’ why do you have to be in there, man? Fuckin’ you could’ve come and had a fuckin’ barbie with us last night.’

Hills:'True'. 

You:'Yeah'.

Hills:'Yeah, spewing, mad.  [Laughs]'. 

You:'Yeah'.   

Hills:'That would’ve been mad.  I'm shattered'. 

You:'Yeah, I know.  It was a fuckin’ good one, too'.

Hills:'Yeah'. 

155You instigated this offending at the request of a person in prison as retribution on his behalf.  You did so because of some debt or obligation you had to Mr Hills.  Once again you used another to commit the act, here the arson.  You knew that the premises was a residential one and that ‘kids’ lived there.  There was a risk of the fire spreading, averted by the prompt attending of the fire brigade.  The fire totally destroyed the two vehicles valued at $17,000.

OVERVIEW OF YOUR CRIMINAL CONDUCT

156It is useful to briefly chronicle some of the events in late January to mid-February 2019 in order to have an overview of your criminal conduct. 

157During the whole of this period you were trafficking in a large commercial quantity of ice, Charge 1.  On 28 January 2019 there is a video of you shooting the semiautomatic assault weapon, Exhibit 8.  On 29 January 2019 at 7.30 am police commenced the search of Mr Bentley's premises.  That same day at 8.58 am you were told about that search. At 10.05 am you discussed with your partner doing an insurance job, Charge 8.  In the early hours of Sunday morning, 3 February 2019, the person tasked with doing the insurance job failed.  On 6 February 2019 the Adler shotgun was collected on your behalf from Mr Condon, Charge 4.  At approximately 3.55 am on Sunday, 10 February 2019 the second person staged the collision outside your address, Charge 8. On 12 February 2019 your involvement with the arson attack on behalf of Mr Hills commenced, paragraph 298, Charge 10. At 3 am on Thursday, 14 February 2019 the arson was in fact committed.  Also on that very same day,14 February 2019, the handgun described as the Colt or the Beretta was collected on your behalf from Mr Condon.  On Friday, 15 February 2019 you made arrangements for Mr McGlone for the drive-by shooting, Charge 11, and the following morning, 16 February 2019 at 3.30 am, the drive-by shooting occurred.  In addition, for a period of six days from 1 February 2019 you trafficked in cannabis. 

158Nothing stopped you.  Nothing, as it turned out, would stop you other than your arrest.

159Your offending is marked by a single-mindedness and a determination to carry out your offending.  You relied on not inconsiderable occasions on third parties to carry out the actual acts.  You coordinated and you planned what you wanted to be achieved, avoiding at all times as best as possible your detection in this series of offences.  Your moral culpability for your lawless conduct in all of this offending is complete.

YOUR PERSONAL CIRCUMSTANCES

160So, I turn to your personal circumstances, though I have not concluded with dealing with these offences.

161As I have said, at the time of this offending you were 35 years of age, you are now 37.  You and your twin sister, who is a co-accused in this matter, have had no contact with your father, who apparently left shortly after your birth.  Your mother re-partnered.  Both your stepfather and your mother had significant issues with drug addiction and other concerns.  The end result was that your family life really does not deserve to be called that.  You did not have the benefits that one expects as being the norms, quite the contrary.

162You 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.

163In 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. 

164Thus, 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.

165This is reflected in your previous partner's letter to me, Kylie Caldwell.  In her letter, which became Exhibit MB2, saying that she is the mother of your three elder sons aged between 14 and 11, she writes:

'After we broke up Matthew continued to be there for his sons and I can’t or won’t ever fault him as a father.

Over the last 10 years that we haven’t been together, Matthew Bruce, my current partner James of 9 years and myself have continued to co parent amazingly with our 3 boys. To this day Matthew and I still remain friends and have a health relationship for our children.

Matthew is an amazing father and a really good support for me when it comes to our children.

Matthew always showed respect to my partner and myself. In the time Cursty and Matthew were together, every time I dropped or picked up my boys Matthew and Cursty both were always happy and looked like the perfect blended family.’

166So, you have endeavoured to give your children, including your child Aubree, as much as you could as a father. 

167You have type 1 diabetes, which is actively managed with insulin.  You have had to have dentures upper and lower following surgery whilst in custody.  You have had a history of one suicide attempt at the age of 14.  You have had had anxiety and depression and Mr McKinnon, whose psychological report I will come to, states you suffer from post-traumatic stress disorder, which given your history is hardly surprising.  I do not mean to sound dismissive of it at all in saying that.

168You have in the ways that I will come to since your incarceration, now some 18 months ago, turned yourself into a model prisoner from the word go.  Your background is set out in the written submissions, which I have read on a number of occasions, as well as in the psychological report of Mr MacKinnon dated 11 April 2020, which became Exhibit MB3.  In it Mr MacKinnon at p.3 quotes from you where you said:

'My childhood was shit. Mum was never home. I think her and my stepdad had a speed and pokies problem. We were left unsupervised a lot. But we had food on the table and they’d leave cigarettes for us, from age 11. I asked mum to leave our stepdad. I felt he put her before us. He’d get physical, he’d hit us. He’d punch me, hit me with a belt sometimes. Right up until I was age 18. Then I bashed my stepdad and kicked him out. Mum didn’t stop me.’

169In terms of schooling you stated to him:

'…the only schools I remember were Coolaroo South Primary, Meadow Fair North and Hillcrest Secondary College. I was expelled in Year 8. Then I went to Learning North West. I think I’ve got a Year 9 equivalent…I struggles to sit down and concentrate. I was terrible at reading and writing. I got better as I got older. My writing skills have improved. I’ll write fifty letters a week in here. I send letters to my partner, my sister, a few mates in jail.’

170You also reported to Mr MacKinnon that you had a history of working in various labouring roles, cabinet making, butchery work, throughout your adulthood and that from 2007 to 2010 you worked at a Toll logistics warehouse in Somerton.  He also at p.5 relays your suicide attempt during your adolescence.

171By 15 years of age you were apparently smoking cannabis regularly and by the age of 19 using amphetamines, drinking it with water, and that you stated that you used MDMA once.  I quote:

'I only stated smoking ice late 2018, 2019. Then with Valium and Xanax, staying awake for long periods, very messy'.

172As to the future you stated to Mr MacKinnon:

'I want to do my jail, go home and still be with my partner and have a good relationship with my kids. Get out and work. I haven’t done much jail. Fourteen years ago, I did three months…I had a break of about then years without serious charges. These offences are out of character.’

173Mr MacKinnon was of the opinion that your functional intelligence fell within the normal adult range and that your general cognitive functioning appears to be within the normal adult range.  He considers that your long-term, immediate and short-term memory faculties appear to be normal.  He said at p.7:

'At the time I assessed him, Mr Bruce appeared to be suffering with a longstanding PTSD – currently of moderate intensity – symptoms of which may include: anxiety, depression, avoidance behaviour, flashbacks, nightmares, paranoia and mistrust, psychosexual problems, identity disturbance, emotional lability, sensitivity to environmental cues and triggers, re-living and rumination, intrusive thoughts, low frustration tolerance, chronic interpersonal difficulties, intense fears of abandonment and personal rejection, low self-esteem, anger management problems, destructive and self-destructive impulses and substance abuse (although his substance abuse appears to be in partial remission, at present).’

174You apparently have made significant improvements to improve your literacy and general language skills whilst in custody.  At p.8 at the top of the page Mr MacKinnon stated:

'In my opinion, Mr Bruce has accrued antisocial and criminal traits over the years but he does not appear to possess an inherently antisocial or criminal character. Rather his offending occurred (in part) as a very direst response to significant psychological problems and life stressors.’

175As to that last opinion, nothing in the history of your offending that I have given thus far supports any such suggestion. 

176You have whilst been in custody completed many courses, as set out in Exhibit MB1.  You have been a unit billet, you are presently employed as a peer educator at the MRC, having undertaken training programs.  You are currently in protection.  Despite all of the difficulties that you have suffered, you have been nominated by prison officers as a person to speak on behalf of the prisoners to prison authorities.  Listening to and reading all that has been said of you and written about you, you have indeed, as I have said, been a model prisoner, not transgressing in any way in the prison.  This is to your credit.

177This has occurred over a period of 18 months.  It is a matter that I must return to in terms of your prospects of rehabilitation.  But unfortunately, given the time of day, I cannot deal with those matters until tomorrow morning, so I will leave them in abeyance until then. 

UPON RESUMPTION ON FRDAY 21 AUGUST 2020

HIS HONOUR: 

YOUR CRIMINAL HISTORY

178I have already detailed your deprived background.  It is necessary to also take into account your criminal history, such as it is.  On my analysis, over a period of some 15 years to May 2018, you have been dealt with for some 93 offences in the course of 13 court appearances, the last of which was an appeal to the County Court, which was successful.  I will come to it shortly.

179You have been gaoled on a number of occasions but in the majority of cases, those gaol terms have been wholly suspended.  Thus, on one occasion, you were sentenced to be imprisoned for three months on two sets of charges, both of which sentences of imprisonment were wholly suspended.  You were later dealt with for breach of both of those wholly suspended sentences.  On two other occasions, wholly suspended sentences were imposed on the second of two months and six months.

180Upon the breach of the two 3-month wholly suspended sentences, which were heard on the one occasion, which were to be served concurrent were activated, resulting, as I understand it, in you serving a three month period.

181On two other occasions, you were actually sentenced to imprisonment, on one occasion to 45 days and on another occasion, two months.  Thus, the occasions on which you have been sentenced to be imprisoned are of limited number and short duration.  In addition, the sentencing dispositions have included some four community corrections orders, some of which you breached.

182In relation to violence offences, your history is a limited one with one unlawful assault, one hinder police, one threat to kill and one intentionally causing damage to property.  Weapons related offences involved two charges of possess dangerous or controlled weapons, both dealt with in May 2006, a very long period of time ago and as far as I am concerned, of no relevance to me.

183More recently however, on appeal to the County Court on the charge of being a prohibited person possessing a firearm, you were dealt with on 14 May 2018 by way of a $2,000 fine without conviction.  The fact that the matter was dealt with in the County Court by way of a fine without conviction militates against that being of any moment so far as the sentencing of you is concerned.

184Dishonesty offences seem to predominate.  You have been dealt with for some seven thefts, two shop steals, seven thefts of motor vehicles, four thefts from motor vehicles, five occasions of going equipped to steal, one change of handling and one charge of proceeds of crime and one burglary.  Again, your offending in that category of offences is of limited significance, save that there seems to be a certain persistence in your offending, particularly in relation to motor vehicles and indeed, such is the case when one looks at offences related to motor vehicle offences where you have been dealt with on no less than 13 charges of driving whilst disqualified, suspended or unlicensed on seven separate court appearances and some 10 charges of driving an unregistered motor vehicle and six charges of fraudulent use of number plates.  Thus, there seems to be a confluence of offences relating to use of stolen motor vehicles, whilst you were unlicensed or suspended or disqualified from such use.

185You have been dealt with on two occasions for breach of a suspended sentence which I have already alluded to.  Of the four community corrections orders or community based orders, you have been breached on three occasions and you have been dealt with on four occasions in relation to family violence intervention order breaches, one in 2005, two in 2015 and one in 2017.

186Noteworthy in your prior criminal history is complete absence of any drug related offences.  There are a few offences of violence and other than the recent charge of possession of firearms by a prohibited person, which I have already adverted to, those sorts of matters are also basically absent.  You have not served any significant period of time in gaol but there is evidence in those prior criminal histories of numerous and perhaps persistent relatively low-level offending.  All were dealt with as summary matters, that is in the Magistrates' Court.

187Such as the orders for suspended sentences, community corrections orders and gaol terms, the effect upon your behaviour is plainly little.  You have, as I have said, been to court on numerous occasions.  You have had the opportunities provided to you by various sentencing dispositions that you have not in fact availed yourself of.  Indeed, what must be said is that the offending for which I must sentence you is an extraordinary escalation from that previous offending conduct.

188It has been put that you are remorseful.  Insofar as there is suggestion of that in the psychological report and suggestion through your counsel that through your pleas, there is further evidence of remorse.  I am not satisfied on the balance of probabilities that you are remorseful.  That of course is not an aggravating feature, merely it is something that is absent as a mitigating factor.

YOUR PROSPECTS OF REHABILITATION

189It is necessary for me to assess your prospects of rehabilitation.  You were at the time of this offending 35 years of age and now 37.  You are not a youthful offender, but you are still a young man. 

190Significantly, as has been put on your behalf by Mr Patton, you, in the 18 months that you have been in custody since your arrest in February 2019, have become a model prisoner, taking on responsibilities within the prison system and bettering yourself, all of which is commendable.

191However, 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.

192At 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 Mr Patton 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.

DELAY, PLEAS OF GUILTY AND COVID-19 PRISON RESTRICTIONS

193There has been a not insignificant delay of 18 months whilst you have awaited your fate.  You have pleaded guilty to all these charges.  It has been agreed that those pleas of guilty were early pleas of guilty and I act on that basis.  Those pleas of guilty have had the utility of the avoidance of what I would have expected to have been multiple trials.  Each of not insignificant duration.  That of course is something of particular moment, when I am dealing with you in these times where trials have been suspended because of the pandemic.

194In addition, I accept that your pleas of guilty have facilitated the course of justice and you shall get the full benefit of those pleas of guilty.

195I has been put on your behalf that your period of custody up until recent times and in the future requires some moderation in sentence because of the COVID-19 restrictions, of which I am well aware of the consequences to prisoners kept in prison in basic isolation but for an hour a day for exercise as well as other restrictions upon them having visits and the like.  So, I have moderated the sentences that I would otherwise impose.

196The fact that you are in protection is not a matter that I can take into account in that regard, lest there is seen to be two separate categories of prisoners, one, in protection who, as of right it was so you could call upon that fact as a moderating factor.

197Highlighted by the difficulties that you have encountered however is the fact that during your imprisonment, your mother has sadly died and you were not able to attend the funeral for a variety of reasons relating to your custody.

CHARGE 1 AND STANDARD SENTENCING

198So I turn from those personal to you to the question of totality in sentencing and as part of that aspect of the sentencing exercise, the fact that Charge 1 is part of the sentencing regime where there is a standard sentence that I must take into account of 16 years' imprisonment.

199It is useful for me to reflect that this is the second case in which I have had to consider a standard sentence.  The first was in sentencing in the matter of Director of Public Prosecutions v Jordan Drake, a sentence I imposed on Mr Drake on 7 June 2019. In sentencing Mr Drake, I said these things at paragraphs 67-69:

'This case has presented a particularly difficult exercise in sentencing you because there are no less than 11 charges.  A sentencing principle which I have steadily borne in mind and taken into account is the need to impose a sentence, or sentences, which in total are appropriate. When I have mentioned that there are 11 charges here, that is not to suggest that the indictment is an overloaded one, i.e. one where there are too many charges. Each of the charges here is well warranted.

However, sentencing on 11 charges, many of which carry with them maximum penalties of 25 years' imprisonment, namely the charge of aggravated burglary and the charges of rape, present a particular sentencing problem. How is it that I can achieve what I consider to be overall the appropriate sentence?  There are two courses open. One, ordering appropriate concurrency and cumulation, and another, reducing the individual sentences from that which I would otherwise impose.

This matter was dealt with by the High Court in Mill v R [1988] 166 CLR 59, in the joint judgment of Wilson, Deane, Dawson, Toohey and Gaudron JJ, at p.65, where their Honours wrote:

'Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below that which would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred'.’

200That sentence was the subject of a Director's appeal in the Director of Public Prosecutions v Jordan Drake [2019] VSCA 293. In that regard, there was no criticism of the approach that I there took. The error I made was failing to deal with an aspect of the requirements under the legislation.

201On the same day as the delivery of the judgment by their Honours, the five member Court of Appeal comprising Maxwell P, Priest, Kaye, T. Forrest and Emerton JJA, on 10 December 2019, a second judgment was delivered by their Honours on the same date in the matter of Peter Brown v The Queen [2019] VSCA 286. In their Honours' judgment, their Honours helpfully set out the principles in detail that a sentencing judge, such as myself, must abide by. I intend to quote from a number of sections of their Honours' judgment.

202In the summary section at paragraph 4, their Honours wrote:

'For the most part, the provisions are clear and the approach required is not in dispute.  The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’.  This requirement:

·     Is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;

·     Does not affect the established ‘instinctive synthesis’ approach to sentencing;

·     Does not require or permit ‘two-stage sentencing’; and

·     Does not otherwise affect the matters which the court may, or must, take into account ins entencing.

The only area of uncertainty concerns the judge’s assessment of the seriousness of the offence before the court (‘the subject offence’).  The ‘standard sentence’ is defined as:

the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

The provisions then specify that those ‘objective factors’ are to be determined:

(a)Without reference to matters personal to a particular offender or class of offenders; and

(b)Wholly by reference to the nature of the offending.’

203Their Honours then set out in some detail the relevant provisions drawn from the Sentencing Amendment (Sentencing Standards) Act 2017, including the s.5B(5) which reads:

'As part of its reasons under subsection 4, a court must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.'

204At paragraph 39, their Honours continued:

'Before examining those decisions, however, it is necessary to address the requirements of ss 5B(4) and (5) with respect to the giving of reasons.  When sentencing for a standard sentence offence, the court must (under s5B(4)) state the reasons for imposing the particular sentence. Under s 5B(5), the court in giving its reasons

must refer to the standard sentence for the offence and explain how the sentence imposed but it relates to that standard sentence.

There was discussion in the course of argument about how the court could give any meaningful explanation of how the sentence imposed ‘relates to’ the standard sentence without reference to — at least — the relative seriousness of the subject offence as compared with the hypothesised mid-range offence.’

205At paragraph 41, their Honours deal with such matters and following:

'In our opinion, the provisions dealing with the content of sentencing reasons must be viewed as subordinate to the provisions prescribing the approach to sentencing, and must therefore ‘give way’ in the event of conflict.  A provision with respect to the content of sentencing reasons could not be taken to impose on a sentencing judge a requirement (ie to undertake an assessment of offence seriousness relative to the hypothesised mid-range offence) which is not imposed by the operative provisions prescribing the sentencing methodology. 

For the reasons we have given, the sentencing methodology prescribed by these provisions neither requires nor permits the sentencing judge to classify the subject offence on a scale of seriousness referable to the hypothesised mid-range offence.  That not being a step in the process of reasoning to a decision on the appropriate sentence, the requirement to give reasons for the decision — and to explain how the sentence ‘relates to’ the standard sentence — must be construed accordingly.

This conclusion also accords with the approach of the High Court in Muldrock.  There, the provisions required the sentencing court to ‘make a record of its reasons for increasing or reducing the standard non-parole period’.   The High Court, having made clear that ‘two-stage’ sentencing was not permitted, held that the requirement to give reasons did not require the sentencing court ‘to classify the objective seriousness of the offending’.  What was required, the Court said, was for the judge to

Identity fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed.

As discussed earlier, the standard sentence provisions are explicit, in a way the NSW provisions were not, about the intention to preserve instinctive synthesis and prohibit two-stage sentencing.  The position is, to that extent, even clearer than it was in Muldrock, that a requirement to give reasons cannot be read as affecting the content of the sentencing methodology.

It follows, as senior counsel for the Director submitted, that the reasons given by the judge in the present case satisfy the statutory requirement.  His Honour said:

The sentence I impose is higher than the standard sentence for the offence of murder, which is 25 years’ imprisonment. Having identifies and considered what I consider to be the relevant factors in assessing the sentence, including my assessment as to the very serious nature of the offending and the offender’s high degree of culpability, against his plea of guilty and display remorse, I have formed the conclusion that this is appropriate.’

206Their Honours were not critical of that assessment by the sentencing judge, his Honour Justice Champion.

207In the conclusion section of Brown's case, their Honours wrote in paragraphs 55 to 57 the following:

'Judges sentencing for standard sentence offences should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability.  The obligations imposed by s 5B(2)(a) (to take the standard sentence into account) and by s 5(2)(ab) (to have regard to the standard sentence) are indistinguishable from the obligation imposed by s 5(2)(a) to have regard to the maximum sentence.   They are all ‘legislative guideposts’.

That the process may involve an element of comparison would seem to follow from what the High Court said in Markarian about the function of the maximum penalty:

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them;  secondly, because they invite comparison between the worst possible case and the case before the court at the time;  and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.  That having been said, in our opinion, it will rarely be, and was not appropriate for [the sentencing judge] here to look first to a maximum penalty, and to proceed by making a proportional deduction from it.  That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.’

208Their Honours continued at paragraph 57:

'Just as judges have always had in mind a notion of ‘the worst possible case’, so they must now have in mind a notion of an offence ‘in the middle of the range of seriousness’.  At the same time, the utility of such a comparison is lessened in the case of the standard sentence.  There are two reasons for this.  The first is the narrowness of the definition of ‘objective factors’ which, as McCallum J pointed out in McLaren, is ‘ignorant of’ a range of matters which the judge will need to take into account in assessing the nature and gravity of the subject offending.   The second is the inevitable imprecision of the notion of a hypothesised mid-range offence.  As Basten JA said in Carlton v The Queen:

As a practical matter, it must be accepted that the middle of a range of seriousness is not a precise point, nor is there any paradigm by which it can be identified.  This follows almost inevitably from the scope and variety of circumstances which can be relevant to considering seriousness.’

209In the case of Jordan Drake, I was dealing with multiple offences, attracting standard sentencing for many of such offences, all of which occurred in one episode over a period of some hours.  Whereas here, in sentencing you, the opposite is perhaps the case.  I am sentencing you where there is one offence, Charge 1, where there is a standard sentence of 16 years.  Whereas all the other charges do not and significantly, all the other charges are discrete offences in a sense that they are different from the charge of trafficking in a large commercial quantity of a drug, in this case, methylamphetamine.

210The closest in kind is in relation to the charge of trafficking in cannabis and still then, the closeness is a distant one.  All the other offences are, I have said, discrete.

211Here, I must take into account that the standard sentence for Charge 1 is 16 years' imprisonment, just as I must take into account that the maximum penalty is life imprisonment.  These are two of the many factors I must take into account.  I do take them into account as yardsticks as part of the instinctive synthesis process that I must and do engage in in arriving at the individual sentences that are appropriate not only in relation to this charge but all other charges as well.

212As will be revealed shortly, the sentence that I will impose upon you today on Charge 1 is one of 12 years' imprisonment.  This is four years less than the 16-year period of imprisonment set as the standard sentence.  Here, I must sentence you, Mr Bruce, taking into account not only your pleas of guilty but also the imperative that the individual sentences I impose upon you, including on Charge 1, produce a sentence in total which are appropriate and individually appropriate to the charge in question.

213Here, in relation to you, the indictment charges no less than nine discrete and, in seven of them, serious examples of the crime in question.  Here, I leave aside two charges, one Charge 5 of negligently dealing with the proceeds of crime, namely the 303 rifle and Charge 11, the rolled-up charge of possession of small quantities of various drugs of dependence.

214Each of those other seven charges are serious examples, varying of course in their seriousness.  Taking into account all these matters, the maximum penalty, the standard sentence on Charge 1 of 16 years, the gravity of the offences, your pleas of guilty, I consider that the sentence that I have decided upon of 12 years' imprisonment on that Charge 1 is the appropriate sentence.

215For the sake of clarity, I emphasise this does not mean that I have in any way started with a standard sentence of 16 years' imprisonment and then in some way worked down to 12 years' imprisonment.  I have not.

OTHER SENTENCING MATTERS

216So, I turn to other sentencing matters that I must take into account.  Specific deterrence, that is deterring you from further offending must be given full weight.  It is plain that this offending over a relatively short period of time, with its intensity increasing in the last three weeks prior to your arrest, is disturbing in its gravity, its diversity and as will become apparent, the risks that you, in that offending, posed to members of our community.

217Just punishment and denunciation for your offending must be and are matters that I have taken into account, your lawlessness must be condemned.

218General deterrence, that is deterring others from offending in the ways that you have is the principal sentencing factor that I must and do take into account.  It must be made plain to others, who are like minded to engage in the activities that you have engaged in, that they will face stern punishment.

219Your overall criminality is high, as is plain.  I have dealt with it at an individual level, and in a more holistic way.  Your moral culpability for your offending is complete. 

PROTECTION OF THE COMMUNITY

220So that leaves one final conclusion that I must come to and for you, in my sentencing of you, that conclusion is a fateful one.

221It 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. 

222You trafficked in cannabis for a period of about a week. 

223Being 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. 

224In 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.

225You 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. 

226You 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.

227You also had in your possession the lever action Adler shotgun capable of firing no less than seven cartridges without reloading. 

228Police 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.

229Two 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. 

230Four 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.

231The 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. 

232And 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.

THE SENTENCES

233Taking all these matters into account, I sentence you as follows: 

On Charge 1, trafficking in a large commercial quantity of methylamphetamine I sentence you to 12 years' imprisonment.  That is the base sentence. 

On Charge 4, possession of a firearm or firearm-related items in contravention of a firearm prohibition order, I sentence you to be imprisoned for a period of six years.  I direct that two years and six months be served cumulatively upon the base sentence.

On Charge 5 of negligently dealing with proceeds of crime, I sentence you to be imprisoned for a period of four months.  There is no additional period of gaol in relation to that charge. 

On Charge 6, possession of a trafficable quantity of unregistered firearms, I sentence you be imprisoned for a period of three years.  I direct that one year of that three years be served cumulatively upon the sentences that I have already imposed.

On Charge 7, the charge of trafficking a drug of dependence in relation to cannabis, I sentence you to be imprisoned for a period of one year and three months.  I direct that six months of that sentence be served cumulatively.

On Charge 8, attempting to obtain property by deception, I sentence you to be imprisoned for a period of one year and three months.  I direct that six months of that sentence be served cumulatively.

On Charge 10, arson, I sentence you to be imprisoned for a period of three years and I direct that one year and three months of that sentence be served cumulatively.

On Charge 11, discharge firearm at premises, I sentence you to be imprisoned for a period of eight years and six months.  I direct that three years and six months be served cumulatively. 

On Charge 12, possession of drug of dependence, I sentence you to be imprisoned for a period of seven days.  There is no period of cumulation.

On Summary Charge 6, committing an indictment offence whilst on bail, I sentence you be imprisoned for a period of one month.  I direct that that one month be served cumulatively upon the sentence of imprisonment.

On Summary Charge 9, possess cartridge ammunition without a licence or permit, I sentence you to be fined $800. 

On Summary Charge 14, make false report to police, I sentence you to be imprisoned for a period of one month.  There is no period of cumulation.

On Summary Charge 30, possess controlled weapons, I sentence you to be imprisoned for a period of three months.  I direct that one month be served cumulatively.

On Summary Charge 33, drive a motor vehicle whilst authorisation suspended, I sentence you to be imprisoned for a period of three months.  I direct that one month be served cumulatively.

234This produces a total effective sentence of 21 and a half years' imprisonment.  I set a minimum non-parole period of 15 years' imprisonment.  I state that but for your pleas of guilty I would have sentenced you to 27 years' imprisonment and set a minimum non-parole period of 19 years' imprisonment.

235I declare that pre-sentence detention up till yesterday is 551 days, which will be administratively deducted on the sentences that I have imposed upon you.  I have made the various orders sought by the prosecution.

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