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Court of Criminal Appeal 30 April 2018

Stocco, Gino v R; Stocco, Mark v R

[2018] NSWCCA 77

Other
CRIMINAL LAW SENTENCE APPEALS BY TWO CO OFFENDERS FATHER AND SON CO OFFENDERS GINO STOCCO

Citation: Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 30 April 2018
Judges: Hoeben CJ at CL; Johnson J; Schmidt J

Background

The two appellants, a father and son, pleaded guilty to four offences: arson of farm sheds and equipment at a rural property near Canowindra in August 2014; the murder of a man at Elong Elong in October 2015; and two counts of discharging a semi-automatic rifle to prevent lawful apprehension at Mangoplah, also in October 2015. Additional summary matters were placed on a Form 1 to be taken into account at sentence. Both men had lived itinerantly on farming properties across New South Wales and Queensland, and were subject to outstanding Queensland warrants at the time of these offences.

The sentencing judge (Davies J) imposed aggregate sentences on each appellant. The father (Gino) received a non-parole period of 28 years with a balance of term of 12 years. The son (Mark) received a non-parole period of 30 years with a balance of term of 10 years, both sentences commencing 28 October 2015.

Both men sought leave to appeal against their aggregate sentences under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

  • Whether the sentencing judge had properly applied the totality principle when constructing each aggregate sentence
  • Whether each aggregate sentence was manifestly excessive given the extent of accumulation of the indicative sentences
  • Whether Mark's sentence should have been reduced to reflect assistance he claimed to have provided to law enforcement in the investigation of the murder
  • Whether the sentencing judge had properly taken into account Mark's prospects of rehabilitation
  • Whether the disparity between the non-parole periods of the two co-offenders gave rise to a justifiable sense of grievance under the parity principle
  • Whether Gino's age was given sufficient weight

Decision

The Court of Criminal Appeal dismissed both appeals, with the three judges in agreement on all issues.

On the totality principle, the court found that the sentencing judge had properly engaged with the requirement to ensure the overall sentence reflected the aggregate criminality without becoming crushing. The individual offences were each distinct and serious, and no single sentence could adequately comprehend the criminality of the others. The overall sentences were proportionate to what the court described as an "extremely high" level of criminality.

On Mark's claimed assistance to law enforcement (Ground 1), the court refused leave to rely on that ground. The court found that the issue of assistance had not been properly raised at the sentencing hearing, and that even if it had been, the level of assistance was overstated and would not have produced a meaningfully different outcome. No miscarriage of justice was established. On rehabilitation, the court found the sentencing judge had addressed that issue, and the severity of the objective criminality inevitably limited the weight it could attract.

On parity, the court rejected the argument that the two-year difference in non-parole periods gave rise to a justifiable sense of grievance. Mark was the principal offender in the murder and had the higher level of culpability overall, which justified the modest differential. As for Gino's age, the court acknowledged that a sentence reflecting the objective seriousness of serious offending may unavoidably extend for all or most of an older offender's life expectancy, but that did not reduce the obligation to impose a sentence commensurate with the criminality involved.

Orders Made

  • Mark Stocco: Leave to appeal on Ground 1 (assistance) refused; leave to appeal granted on Grounds 2 to 5, but appeal dismissed.
  • Gino Stocco: Leave to appeal granted, but appeal dismissed.

Key Takeaways

  • In dismissing both appeals, the Court of Criminal Appeal confirmed that aggregate sentences covering multiple, distinct and serious offences may legitimately result in very long overall terms, provided the totality principle has been genuinely engaged and the sentence is proportionate to the combined criminality.
  • Where an issue of assistance to law enforcement is not properly raised at the sentencing hearing, a court on appeal will scrutinise whether a miscarriage of justice would actually result before granting leave to rely on it as a fresh ground; overstating the extent of assistance will weigh against that grant.
  • A difference in non-parole periods between co-offenders is not automatically a source of justifiable grievance under the parity principle where it reflects a genuine and identifiable difference in culpability.
  • Under settled NSW authority, a determinate sentence that reflects the objective seriousness of grave offending may, for an older offender, extend for all or most of their life expectancy, without that circumstance constituting a distinct sentencing error.
  • Senior counsel for the appellants conceded at the hearing that the subjective cases of both men did little to assist them when weighed against the totality of the objective criminality, a concession the court regarded as properly made.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 33A(2)(a), 195(1A)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(h), 23
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Barton v Regina [2009] NSWCCA 164
- CMB v Attorney-General for NSW [2015] HCA 9; 256 CLR 346
- Cahyadi v R (2007) 168 A Crim R 41
- Des Rosiers v R [2006] NSWCCA 16; 159 A Crim R 549
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Goebel-McGregor v Regina [2006] NSWCCA 390
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- House v The King [1936] HCA 40; 55 CLR 499
- Hudd v Regina [2013] NSWCCA 57
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Ellis (1986) 6 NSWLR 603
- Additional cases cited: Ho v R [2013] NSWCCA 174; JM v R [2014] NSWCCA 297; Jonson v R [2016] NSWCCA 286; Miles v The Queen [2017] NSWCCA 266; Mooney v R [2016] NSWCCA 231; Panetta v R [2016] NSWCCA 85; Paxton v R [2011] NSWCCA 242; Porter v R [2008] NSWCCA 145