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Supreme Court 31 March 2017

R v Gino Stocco; R v Mark Stocco

[2017] NSWSC 304

HomicideTheft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE MURDER RECKLESSLY DESTROY PROPERTY BY FIRE SEPARATE CRIMINALITY OF THE OFFENCES FATHER AND SON

Citation: R v Gino Stocco; R v Mark Stocco [2017] NSWSC 304
Court: Supreme Court of New South Wales
Date: 31 March 2017
Judge(s): Davies J

Background

The offenders, Gino Stocco (father, born 1957) and Mark Stocco (son, born 1979), were itinerant labourers who lived and worked on rural properties across New South Wales and Queensland following Gino's separation from his wife in 2001. Both were subject to outstanding Queensland warrants at the relevant time. They developed a pattern of harbouring grievances against property owners and managers they perceived had wronged them.

The charges arose from two distinct episodes of offending. In August 2014, while passing through Canowindra, the offenders entered a farming property where they had previously worked. Believing their former employer still owned the land, they slashed tyres and deliberately lit fires that destroyed two farm sheds and a John Deere tractor, causing insured losses exceeding $177,000. The second and more serious episode arose in October 2015 at a separate property at Elong Elong, where the offenders had been residing and working as labourers.

At Elong Elong, a deteriorating relationship with the property manager, Rosario Cimone, led to the offenders fearing they would be removed from the property. Gino Stocco shot and killed Mr Cimone at Mark Stocco's instigation. The offenders then evaded police for several days, during which they twice discharged a semi-automatic SKK rifle at police vehicles to avoid apprehension, though without intent to injure the officers.

  • What were the appropriate sentences for each offender across four charges: arson, murder, and two counts of discharging a firearm to prevent lawful apprehension?
  • How should the principle of totality be applied when imposing an aggregate sentence across offences involving separate victims and distinct episodes of criminality?
  • What discount applied to each sentence by reason of early guilty pleas?
  • Did special circumstances exist to warrant adjustment of the non-parole period, and if so, for which offender?
  • What weight should be given to general and specific deterrence in the context of the particular offending?

Decision

Davies J sentenced each offender on all four counts, applying an early guilty plea discount of 25 percent to each indicative sentence. The court found that the murder was the most serious offence. For the murder, the indicative non-parole period after discount was 15 years for each offender, against a standard non-parole period of 20 years. The court noted Mark Stocco's greater moral culpability for the murder, as he instigated the killing, and took into account Gino Stocco's precise role as the shooter and his age.

For the arson, the court accepted that the offenders had no intent to harm any person and had acted out of a misplaced sense of vengeance against someone they incorrectly believed still owned the property. The indicative sentence after discount was five years and three months. For each count of discharging a firearm to avoid apprehension, the court accepted there was no intent to injure police, though the conduct was nonetheless serious and warranted significant punishment.

The court found no drug, alcohol or mental health issues bearing on the offending. Instead, both offenders had developed an entrenched anti-authority belief system. The court found no remorse in relation to the murder or the firearm offences, though some remorse was expressed for the arson. The absence of remorse reinforced the significance of both general and specific deterrence as sentencing considerations.

Special circumstances were found in respect of Gino Stocco alone, by reason of his age and the length of the aggregate sentence. This justified a somewhat longer parole period for him than would otherwise apply, and is reflected in the difference between the two non-parole periods. The court also noted the operation of the Crimes (High Risk Offenders) Act 2006 (NSW), which permits the State to apply for continued detention or supervision orders after the expiry of any parole period where an offender poses an unacceptable risk of committing a serious violence offence.

Orders Made

  • Gino Stocco: aggregate sentence of 40 years imprisonment, commencing 28 October 2015 and expiring 27 October 2055, with a non-parole period of 28 years expiring 27 October 2043.
  • Mark Stocco: aggregate sentence of 40 years imprisonment, commencing 28 October 2015 and expiring 27 October 2055, with a non-parole period of 30 years expiring 27 October 2045.
  • Additional offences listed on each offender's Form 1 (including police pursuits, receiving stolen property, firearm and ammunition possession, and illegal use of a motor vehicle) were taken into account in the sentencing for Counts 3 and 4 respectively.
  • No further orders were made with respect to the offences recorded on the section 166 Certificate, as those matters had been taken into account via the Form 1 documents.

Key Takeaways

  • Where multiple serious offences arise from separate episodes with different victims, the totality principle requires the court to arrive at an aggregate sentence that is just and appropriate for the overall criminality, rather than simply accumulating individual terms.
  • An early guilty plea discount of 25 percent was applied across all four charges, consistent with the approach in R v Thomson; R v Houlton (2000) 49 NSWLR 383 and subsequent authority.
  • Special circumstances justifying an extended parole period relative to total sentence can be established on the basis of an offender's advanced age combined with the length of the aggregate term, even where no other mitigating factors are present.
  • Absence of remorse, combined with an entrenched anti-authority disposition and no underlying drug, alcohol or mental health factors, elevates the significance of both general and specific deterrence at sentencing.
  • The Crimes (High Risk Offenders) Act 2006 (NSW) remains available to the State after sentence is served in murder cases, allowing an application for continued detention or supervision if the offender is assessed as posing an unacceptable risk of committing a serious violence offence upon release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 33A(2)(a), 195(1A)(b)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- Le v R [2012] NSWCCA 202
- Jonson v R [2016] NSWCCA 286
- Porter v R [2008] NSWCCA 145
- R v Michael Kanaan [2006] NSWSC 539
- R v Thomson; R v Houlton (2000) 49 NSWLR 383