Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 | Case summary

Counsel: P McGrath SC - Applicant Gino Stocco C O'Donnell SC - Applicant Mark Stocco T Smith - Respondent Crown

Judgment

HOEBEN CJ at CL: Offences and sentences On 31 March 2017 the applicants were sentenced by Davies J in respect of the following offences: 1. On 29 August 2014 at Canowindra, in the company of each other recklessly destroyed two farm sheds and contents therein and a 2004 John Deere 682 model tractor contrary to s 195(1A)(b) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 11 years imprisonment. 2. On 7 October 2015 at Elong Elong did murder Rosario Cimone contrary to s 18(1)(a) of the Crimes Act. The maximum penalty for this offence is imprisonment for life. There is a standard non-parole period of 20 years. 3. and (4) - Two counts that on 16 October 2015 at Mangoplah did discharge a firearm namely an SKK semi-automatic rifle, with intent to prevent their lawful apprehension contrary to s 33A(2)(a) of the Crimes Act. The maximum penalty for this offence is imprisonment for 25 years. There is standard non-parole period of 9 years.
Each of the applicants pleaded guilty to all four charges. They were taken into custody on 28 October 2015 and have remained in custody.
The following offences were included on a Form 1 to be dealt with at the same time as the index offences. 1. Police pursuit - drive recklessly (two counts); 2. Receiving stolen property outside New South Wales; 3. Possession of unauthorised firearm being a Remington 12 Gauge Shotgun; 4. Possession of ammunition whilst unlicensed; 5. Illegal use of a motor vehicle being a White Toyota Land Cruiser. The Form 1 matters were to be taken into account in respect of Count 3 for Gino Stocco (Gino) and for Mark Stocco (Mark), those matters were to be taken into account in respect of Count 4.
His Honour imposed an aggregate sentence for each applicant. Gino was sentenced to imprisonment with a non-parole period of 28 years, commencing 28 October 2015 and expiring 27 October 2043, with a balance of term of 12 years expiring 27 October 2055.
Mark was sentenced to imprisonment with a non-parole period of 30 years, commencing 28 October 2015 and expiring 27 October 2045 with a balance of 10 years expiring 27 October 2055.
The indicative sentences were: Count 1 - Imprisonment for 5 years and 3 months. Count 2 - Imprisonment for 26 years with a non-parole period of 19 years and six months. Count 3 - Imprisonment for 9 years with a non-parole period of 6 years and 9 months. Count 4 - Imprisonment for 9 years with a non-parole period of 6 years and 9 months.
The applicants seek leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentences imposed on 31 March 2017.
Gino relies upon the following grounds of appeal: Ground 1 - His Honour erred in failing to take into account principles of totality. Ground 2 - The aggregate sentence is manifestly excessive by virtue of the extent of accumulation of each indicative sentence.
Mark relies upon the following grounds of appeal: Ground 1 - His Honour erred in failing to take into account assistance provided by the applicant to law enforcement authorities in the detection/investigation of the murder. Ground 2 - His Honour erred in failing to take into account the applicant's prospects of rehabilitation. Ground 3 - His Honour erred in failing to take into account the principles of totality. Ground 4 - The disparity between the non-parole period imposed on the applicant and that imposed on Gino Stocco, gives rise to a justifiable sense of grievance and gives the appearance that justice has not been done. Ground 5 - The sentence is manifestly excessive. Factual background
The applicants are father and son. Gino was born in December 1957 and Mark in October 1979. They were aged 56 and 34 at the date of the first offence charged. They were aged 59 and 37 at the time of sentence.
Both applicants had been itinerant with no fixed place of abode after Gino separated from his wife in 2001. They lived on various farming properties in New South Wales and Queensland and performed building and farm work on those properties in return for wages and board. Both applicants were subject to warrants issued in Queensland for offences said to have been committed by them in 2011 and 2012. Count 1 - Destroy property by fire
In November 2011 Peter Fairley, who then owned the property "Plenty" located at Canowindra, advertised for a caretaker. The advertisement was answered by Gino in December 2011 and it was agreed he and Mark would commence as caretakers.
The property was used for farming purposes and contained a main house, a number of sheds, a workshop and machinery. There was a three bedroom cottage at the rear of the property.
The applicants worked on the property and left on or about 20 March 2012. They told Mr Fairley that they would have to leave the property for a short time. After three weeks, Mr Fairley had not heard from them and terminated their employment. Gino and Mark returned to the property, collected their belongings and left.
In March 2013 Mr Fairley sold the property to Guy and Luke Tidswell.
At the time of this offence, the property was occupied by Luke Tidswell and his girlfriend, who resided in the main house, and Lyndon Barber and his girlfriend, who resided in the cottage.
On 29 August 2014 the applicants were travelling through the area heading to Victoria, driving a Volkswagen utility. The applicants entered the property to obtain diesel fuel for their vehicle. They were unaware at the time that their former employer, Mr Fairley, had sold the property in 2013.
The applicants drove their vehicle into the property through open gates shortly after midnight. Upon entering the property, the applicants described themselves as becoming agitated and angry because of the way they perceived that they had been treated by Mr Fairley. Gino began to slash and punch holes with a battery drill in the tyres of various vehicles, including an International Tip Truck, a Hay Rake, a fencing trailer and a quad bike. While this was occurring Mark was "keeping watch" but he also "slashed" the tyres of a Ford Falcon sedan.
Shortly after this, the applicants began to put fuel into their vehicle from a diesel gravity-feed elevated 4000 litre tank. The workshop shed sat adjacent to the diesel tank. The shed contained tools, benches, drums of lubricant and paints. It also housed several motorcycles, quad bikes and a boat. There was a machinery shed located about 50 metres east of the workshop. This housed the International Tip Truck, a John Deere Tractor, the fencing trailer and the Hay Rake.
After filling their vehicle, the trigger nozzle malfunctioned and diesel continued to run from the tank and pooled on the ground near the workshop shed. The applicants then lit fires near the diesel tank in the John Deere tractor in the machinery shed.
At about the same time, the occupants of the main house were awakened by dogs barking. They saw torch lights coming from the machinery and workshop sheds. After getting out of bed, one of the occupants saw flames and heard a vehicle engine. A person, with a flaming torch in one hand, was observed walking from the workshop shed to the shed that contained the John Deere Tractor.
Luke Tidswell came out of the farm house armed with a shotgun and walked towards the fire which by that time had started to engulf the workshop and tractor. The applicants returned to their vehicle and drove from the property. Mr Tidswell fired two shots at the vehicle, one striking the front grill and puncturing the radiator.
The fire brigade were called to attend the property. Lyndon Barber and his girlfriend had also come out of the cottage to assist. The workshop and the tractor in the machinery shed were well alight. Two quad bikes, which were alight, were removed from the machinery shed and the flames extinguished. They had slight fire damage. The boat and trailer were also removed, but they had significant fire damage.
The workshop and the property within were destroyed. The John Deere tractor was destroyed and the radiant heat damaged the International Tip Truck, the Hay Rake and the fencing trailer.
The applicants drove from the property towards Nangar National Park. Due to the gunshot damage to the radiator, their vehicle became inoperable. They parked the vehicle in a drain and left the area on foot. The vehicle was subsequently examined and a DNA match for Gino was obtained. The applicants were listed as suspects for this offence on 29 August 2014.
Following their arrest later the following year, both applicants were interviewed by investigators at the Wellington Correctional Centre on 10 December 2015. During those interviews, they made full admissions to the arson incident at the "Plenty" property. Both said that they were unaware at the time of the arson that the property had been sold by their former employer.
After the fire, the owners of "Plenty" lodged an insurance claim from which they received the amount of $177,326 resulting from the fire damage. The owners were required to pay an excess of $850.
The John Deere tractor, which was 11 years old at the time of its destruction, was insured for its market value. Subsequently and as part of the $177,326 sum which the insurance company paid, the owners received $81,809 as the replacement cost of that tractor. The type of tractor which was needed to replace the destroyed tractor was purchased at a price of $223,000. The difference was claimed by the owners as a substantial and irrecoverable loss. Count 2 - Murder
Rosario Cimone (the deceased), was born in May 1947. He was a retired butcher. He was divorced with three children. He rarely saw friends or family and lived an isolated lifestyle.
In September 2015 the deceased entered into an agreement with a person, (who in the proceedings was called "Person C"), to reside on his 385 hectare property, "Pinevale". "Pinevale" was located at Tonniges Road, Elong Elong, which is near the Golden Highway, approximately 50 kilometres North-East of Dubbo. The property had been purchased by Person C, or interests associated with him, in July 2014.
Another person, (known in the proceedings as "Person B"), and the deceased had been friends for some forty years. Person B met the applicants while they were working at the same building site at Wedderburn. They became friends and in late August or early September 2015 the applicants were living in Person B's garage at Lurnea. While they were living with Person B, the deceased visited and socialised with them. A few days later, the applicants moved to "Pinevale" to work on the property.
Both applicants during their electronically-recorded interviews with police said that "Pinevale" was a remote property and was to be used to grow cannabis, hydroponically in a shed, and in pots at the rear of the property. They said that a third person (called in the proceedings "Person A") and Person B had installed the deceased as caretaker to tend to the cultivation of the cannabis. One crop of about 14 pounds was grown and delivered to Sydney shortly before the murder. They further said that once Person A and Person B became aware that they (the applicants) were wanted by the police, they went to the property and cleared it of material used in the cultivation process.
The attending Crime Scene Officer provided an opinion that the large corrugated iron shed adjacent to a residential dwelling had been prepared for use as a hydroponic cultivation area. Detectives located hundreds of black pots at the rear of the property. Both Person B and Person C said that they visited the property fairly regularly, which was consistent with them keeping an eye on their investment and employees.
The deceased and the applicants had separate bedrooms in the same house and, until their relationship deteriorated towards the October long weekend in 2015, they ate and worked together. The applicants said that in addition to tending to the cannabis operation, they were involved in setting up irrigation, electrical work, building a pergola and general cleaning and maintenance.
The applicants said that the relationship between them and the deceased deteriorated over time. The deceased saw himself as the boss and the applicants were upset by this. Person B and Person C had visited the property from 3 to 5 October 2015. Person C observed that the deceased was agitated. Person B and Person C were probably the last people to see the deceased alive, other than the applicants.
Gino provided an extensive ERISP (Electronically Recorded Interview of Suspected Person) to police after he had been arrested. He said that they had been pressured to grow drugs by the deceased and that if they did not do as they were told, they would not be allowed to stay. Gino said that he and Mark feared for their lives and feared that they would be shot in their sleep as the deceased had possession of a shotgun. On the morning of 7 October 2015, the applicants and the deceased had an argument, and the deceased produced a shot gun. The applicants then agreed between themselves to kill the deceased. Gino shot the deceased once, possibly twice, with a stolen pump-action shotgun in self-defence, fearing the deceased was about to shoot them. The applicants moved the deceased's body and disposed of it some distance away in the bushes.
Mark also provided an ERISP to police after he had been arrested. He said that on the morning of 7 October 2015 his father and the deceased had an argument about the operation of the property. The deceased drove off in a vehicle but could not get through a locked gate, so he returned. Further argument occurred between Gino and him at the front of the house and the deceased said, "I'm going to ring Person A and sort this out." The applicants became worried that they would be kicked off the property after all the work they had put in, as had happened a number of times on previous properties.
The applicants were angered by this and after some discussion in the house, and while the deceased waited outside, they decided to kill him. Mark said to his father, "Just kill him, he's going to go and tell Person A" and "Dad, kill him." Mark brought out from underneath his bed a 12 gauge "Remington" Model 870 pump-action shotgun containing five or six rounds of "Diana" BB and No 2 shot 12 gauge shotgun cartridges. The firearm and ammunition had been stolen by the applicants from Douglas Redding, who had a property at Cecil Plains, Queensland. The applicants worked for Mr Redding at that property in 2013. Mark handed the firearm to his father and said, "Shoot him". Gino replied, "No, tie him up, tie him up" but Mark said, "Just shoot him".
Gino walked out of the house carrying the firearm, followed by Mark. The deceased was standing about two metres from his car, which was parked at the front of the dwelling house near the building works for a new pergola. Gino removed the safety catch and actioned the shotgun by pumping it once. He approached the deceased from the front and shot him once to the stomach area from a distance of about two metres. The deceased doubled over and Gino actioned the shotgun, expelling the spent cartridge and loading a new one into the chamber. He shot the deceased again to the stomach area. The deceased fell to the ground and died almost immediately.
When Mark's version of events was put to him, Gino agreed that the version of events described by Mark was an accurate account of what occurred. His Honour found as a fact that Mark's account should be accepted. That finding was important as to the applicants' motive for killing the deceased.
The applicants attempted to lift the deceased's body onto the back of a Mitsubishi Triton utility, but he was too heavy. They dragged his body to a raised concrete pad, propped him up and then transferred him to the back of the ute. They drove along an access path for about 50 metres and turned off into the scrub. They drove another 80 metres into the scrub and dumped the body, face up, onto the ground. They dragged the body by the arms and legs a little further into thicker scrub. Mark removed all the deceased's clothing so that he would blend in with the country, should anyone be searching for him. They placed leaves and branches over the deceased's body.
The applicants returned to the main area of the property and placed all the clothing worn by the deceased, except for his work boots, into a drum, poured methylated spirits and diesel into the drum and set it on fire. They decided to keep the boots as they were "good boots". They collected the deceased's clothing from the house and burnt it so as to give anyone looking for him the impression that he had simply left the property. One of the pieces of clothing contained about $50 which they kept. They picked up the spent cartridge shells. They washed out the back of the Triton utility, packed their belongings into a stolen Nissan Navara utility and left the property.
The autopsy identified two gunshot wounds in the deceased with the path of the shots being from front to back. Count 3 - Shoot with intent to avoid arrest - Constable Kerslake Police pursuit - Form 1 Receiving - Form 1
At 2pm on Friday, 16 October 2015 Constable Kerslake, attached to the Traffic and Highway Patrol Command based at Holbrook, was driving a marked Highway Patrol vehicle. Near the intersection of Fourth Street, Henty, he saw a silver coloured Nissan Navara four-wheel drive utility with NSW registration plates pull out of Yankee Crossing Road and drive north on Railway Parade. Gino was driving the vehicle and Mark was in the front passenger seat.
Gino and Mark had stolen the Nissan Navara from Gino's sister and her husband on 22 November 2013 when it was at their home in Chinchilla, Queensland.
The Automatic Number Plate Recognition software in the Highway Patrol vehicle gave an audio warning. This indicated that the number plates were stolen, and belonged to a Suzuki Swift and that the applicants might be using that vehicle. On 19 March 2015 Elizabeth Ecceles had reported that the registration plates attached to her Grey Suzuki Swift, which was parked in a council car park on Lords Place in Orange NSW, had been stolen.
Constable Kerslake performed a U-turn and activated the warning devices on the Highway Patrol vehicle, which in turn activated the In-Car-Video recording device. The Navara slowed and then accelerated to 90 km/h. Constable Kerslake commenced a pursuit of the Navara.
The applicants were aware that they were wanted by police and that they had appeared on the television show "Australia's Most Wanted".
The pursuit commenced in a built-up area of Henty and proceeded outside Henty. In the course of the pursuit, they passed another vehicle towing farm equipment. The vehicle was travelling slowly. The Navara moved onto the incorrect side of the road, forcing this vehicle onto the dirt shoulder, to avoid a collision. The Navara veered back onto the correct side of the road and increased speed. At some stage during this pursuit, while the vehicle was still moving, Gino and Mark switched places, so that Mark commenced driving and Gino sat in the front passenger's seat. Gino loaded an SKK semi-automatic rifle which he had in the front of the Navara.
An SKK semi-automatic rifle is a high powered military style rifle. It has a range of over 400 metres. The applicants used 7.62 x 38mm calibre ammunition in this rifle when they fired at the police vehicles.
The pursuit continued along the Henty-Cookardinia Road, where the speed reached 117 km/h in a 100 km/h zone. Up until this point, the Navara had been travelling on bitumen roads. The Navara turned onto Kreutzbergers Road which is dirt. The Navara decreased its speed to 80 - 85 km/h on this road. The pursuit continued for approximately 23 minutes, when the Navara, stopped. Constable Kerslake slowed and stopped about 60-70 metres behind the Navara.
Gino armed himself with the SKK semi-automatic rifle and pointed it out of the passenger's side of the vehicle. He then aimed for the front passenger's side wheel of the police vehicle and fired five-six shots at the vehicle. The bullets hit the vehicle on the lower bumper bar just above the fog light on the passenger's side, as well the wheel arch wall of the front passenger's side wheel. The brake hose behind the front wheel was severed by one of the bullets.
Constable Kerslake, fearing for his safety, reversed his vehicle at speed away from the Navara and headed back to Henty. He notified police radio that he had been fired upon and called for assistance. He continued driving until his vehicle stalled and the engine stopped. The applicants did not follow. Count 4 - Shoot with Intent to Avoid Arrest - SC Shaw and SC Woollatt Police Pursuit - Form 1
Senior Constable Shaw, attached to Traffic and Highway Patrol Command based at Wagga Wagga, was in a marked Highway Patrol Vehicle. He was monitoring the police radio in relation to the pursuit by Constable Kerslake. He activated his warning lights and siren and commenced driving towards Cookardinia. This also activated the police In-Car-Video.
Senior Constable Woollatt, attached to Holbrook Police Station, was driving a marked 4WD Police Vehicle. Senior Constable Woollatt was travelling on Mangoplah Road and it was there he came across the Nissan Navara, being driven by Gino with Mark in the passenger's seat. Senior Constable Shaw came up behind Senior Constable Woollatt, overtook him and commenced pursuit of the Navara.
The Navara turned east from Mangoplah Road onto Paper Forest Road which is a dirt road. Senior Constable Shaw and Senior Constable Woollatt continued to pursue the Navara. Gino told Mark to shoot at the police vehicles. The SKK semi-automatic rifle was still loaded from the previous incident. The Navara travelled about 400 metres down Paper Forest Road when it crossed onto the incorrect side of the road. Gino then turned the vehicle so that Mark was facing the two police vehicles.
Senior Constable Shaw stopped his vehicle about 200 - 250 metres away from the Navara. Senior Constable Woollatt stopped his vehicle behind Senior Constable Shaw. Mark then leant out the passenger's window and pointed the SKK semi-automatic rifle towards the location where the police vehicles were. Mark fired three shots which hit the dirt about 20 - 30 metres in front of their vehicles. Senior Constable Shaw notified police radio that he had been fired upon and reversed his vehicle. Senior Constable Woollatt also reversed his vehicle backwards towards Mangoplah Road. Mark fired two more shots. Gino then began reversing the Nissan Navara back towards the police vehicles.
Both police officers were fearful that the occupants of the vehicle would continue firing upon them. Senior Constable Shaw reversed his vehicle back onto Mangoplah Road. The Navara began driving east along Paper Forest Road. Senior Constable Shaw recommenced the pursuit but kept a safe distance. Senior Constable Woollatt continued to follow behind. The Navara turned onto Pulletop Road, which is also a dirt road. Senior Constable Shaw lost sight of the Navara. The pursuit lasted approximately 40 minutes.
At about 3pm the two police officers came upon the Navara. It was stopped on Pulletop Road at the intersection with Cheviot Hills Road. Senior Constable Shaw informed police radio. The Navara slowly continued along Pulletop Road, past the intersection with Cheviot Hills Road. The police officers followed.
Senior Constable Shaw saw the Navara stop and begin reversing quickly. The Navara turned into Cheviot Hills Road which has a "No Through Road" sign at that intersection. Senior Constable Shaw waited there for further assistance. Around 3.40pm, Police commenced a search of farm houses and sheds in Cheviot Hills Road. It was discovered that a padlock had been placed on a gate into the property 1278 Cheviot Hills Road. At 4.44pm a search of the property at 1278 Cheviot Hills Road commenced. During that search, police observed fences which had been recently cut and fresh tyre marks.
At 5.41pm police sighted the Navara on that property and saw the applicants near the vehicle. Police lost sight of them but continued to search for them in this area without success.
The SKK semi-automatic rifle belonged to Douglas Redding. Mr Redding was the owner of a property at Cecil Plains in Queensland. The applicants were the caretakers of this property for part of 2013. On 13 August 2014 Mr Redding saw the applicants and believed they had been on his property. At that time they stole the SKK semi-automatic rifle and 1500 rounds of the 7.62 x 38mm calibre ammunition, along with other items. Mr Redding reported the ammunition as stolen on 14 August 2014. However, he did not notice that the SKK rifle was stolen until September 2015.
Police have not recovered the SKK semi-automatic rifle. It was discarded by the applicants in a creek when they evaded Police after they abandoned the Nissan Navara on the property at 1278 Cheviot Hills Road. Unauthorised Possession of Firearms - Form 1 Possession of Ammunition whilst Unlicensed - Form 1
The Nissan Navara was recovered on Saturday, 17 October 2015 and was towed to the Police Crime Scene vehicle examination bay at Wagga Wagga Police Station. The vehicle was examined forensically and a number of exhibits were seized from the vehicle including the Remington 12 Gauge shotgun, which contained four shotgun cartridges. Both applicants have admitted that this was the firearm used to murder the deceased. Neither of the applicants had ever held a licence which authorised either of them to possess or fire firearms.
The incidents on 16 October involving the police pursuits brought the offenders to the attention of the national media. As a result Person B contacted police on 17 October 2015 and provided them with information which led the police to "Pinevale". At about 10.30am on 28 October 2015 the applicants were arrested at the "Pinevale" property by NSW Police attached to the State Protection Group's Tactical Operations Unit. Mark immediately made admissions to police and assisted in the location of the deceased's body. After initially denying knowledge of the deceased, Gino also made admissions. Both applicants participated in "walkthrough" Crime Scene interviews which were recorded by Police.
The applicants were transported to Dubbo Police Station where they were taken into custody. After being taken to Dubbo Base Hospital for treatment of injuries, they were returned to Dubbo Police Station where they participated in lengthy records of interview during which they made the admissions detailed above including where they had disposed of the weapons. Illegal Use Motor Vehicle - Form 1
Between 7pm on Sunday 18 October 2015 and 6am on Monday, 19 October 2015 the victim Paul Rogers had his vehicle, a 2012 white coloured Toyota Land Cruiser with a white bull bar, parked on his property at Little Billabong. This is 7kms from where police lost sight of the applicants on 16 October 2015. He had recently fuelled the vehicle which had a 145 litre fuel tank. The keys were in the ignition. His wallet containing fuel and credit cards was also in the vehicle.
At 6.30pm the same vehicle identified by its registration plates was sighted at the Shell Service Station, Hume Highway, Euroa, Victoria. CCTV footage shows Gino filling the vehicle at the Service Station and Mark entering the Service Station paying for the fuel. Proceedings on sentence Arson
The Crown submitted that the applicants had entered the property as trespassers at night, originally with the intent of stealing fuel and that under cover of darkness, they then set out to damage property in two separate locations. They must have known that the property was both valuable and essential to the proper management of the farm. The Crown submitted that this conduct was motivated by an inexcusable desire to seek vengeance against their previous employer whom they believed still owned the property. The Crown referred to the very considerable financial loss which the owners had suffered and noted that any fire places lives at risk, including that of fire fighters.
Counsel for the applicants, while accepting that the fire was motivated by a desire to obtain vengeance, and was intended to do damage to valuable and important equipment, submitted that the damage had been deliberately restricted to commercial aspects of the farm and no attempt had been made to set fire to any of the residential buildings on the property.
Davies J noted the observations of Johnson J (with whom Bell JA and McCallum J agreed) in Porter v R [2008] NSWCCA 145: "80 The gravity of a s.195(b) offence is recognised by the maximum penalty of 10 years' imprisonment, twice that available for a s195(a) offence where property is damaged or destroyed other than by fire or explosion: R v Baker at [13]. The circumstance of the possible spread of fire may be taken into account in determining an appropriate sentence: R v Baker at [16]. It is appropriate to take into account the potential risk of physical injury to other persons in determining sentence for a s 195(b) offence: R v Glover at [53]-[57]. 81 The crime of arson may be committed in a variety of circumstances. It is an extremely serious and dangerous crime: R v James (1981) 27 SASR 348 at 351; R v Davies at 358 [44]. The motive of the offender is relevant to an assessment of the objective seriousness of the offence: Newton v State of Western Australia [2006] WASCA 247 at [13]. Courts have observed that arson is very easy to commit, usually with destructive (if not tragic) consequences: R v Catts (1996) 85 A Crim R 171 at 176; Newton v State of Western Australia at [12]. It has been said that arson is often a difficult crime to detect: R v Davies at 370 [97]. Consideration of factors such as these has led courts to emphasise the importance of general deterrence in arson cases."
Davies J (at [81]) determined that there were three significant considerations to be taken into account when assessing the objective seriousness of this offence. They were: 1. Motive - an inexcusable desire to seek vengeance against their previous employer. 2. Although they intended to damage property, they did not intend to injure anyone. 3. There were significant financial losses involved. His Honour assessed the offence at the upper end of the midrange of seriousness. Murder
The Crown submitted that the killing of the deceased was well above the midrange. The Crown accepted that there was no real planning or premeditation, but submitted that it was a matter of great gravity that the applicants were motivated to kill the deceased by virtue of the anger and frustration they felt towards him. Counsel for each of the applicants accepted that the objective seriousness was above the midpoint.
For Mark it was submitted that account should be taken of the sense of threat he felt at the prospect of falling out with the deceased and his associates and the prospect of the risk of detection and pursuit by authorities, upon departure from "Pinevale".
For Gino it was submitted that account would be taken of the motivations of fear of the deceased and frustration, although it was accepted that the applicants' lives were not directly threatened by the deceased at the time he was killed and that they could have left the property without such extreme violence. While Gino had not intended initially to kill the deceased, he had been persuaded to do so by his son and thus accepted joint and equal responsibility for the murder, but there had been no planning involved.
His Honour accepted the Crown's submission that there were four aggravating features associated with the offence: 1. The murder was committed in company. 2. A weapon was used. 3. The deceased was killed on a property that might appropriately be regarded as his home (Jonson v R [2016] NSWCCA 286). 4. The way in which the deceased's body was subsequently treated by the applicants, i.e. in a callous manner, concerned only with covering up their crime.
His Honour accepted that there was no planning or premeditation about the killing. His Honour noted, however, that in accordance with the evidence of Mark, the motive (that they might be required to leave the property) was so trivial as to defy rational assessment.
His Honour found that Gino fired the weapon with an intention to kill and characterised the offence as "cold-blooded, callous and without any rational justification" albeit it was not planned. His Honour assessed the level of objective seriousness as high in the midrange. Shoot with intent - two counts
His Honour found that both these counts concerned the discharge of the same firearm, being a high powered automatic rifle. Multiple shots were fired with the purpose of dissuading police from continuing their pursuit and ultimately enabled the applicants to remain at large for a further 12 days. His Honour noted that the Crown's submission was that the objective seriousness of these offences was of a high level.
On behalf of the applicants, it was conceded that their behaviour caused significant psychological distress to the police officers. They submitted that the steps taken to steady the firearm before firing by bringing the vehicle to a stop assisted them to ensure an accurate aim so as not to endanger the life of the police officers. That having been said, the applicants accepted that there was always a risk of unintended injury to the police officers by way of ricochet or other means.
His Honour viewed a DVD from the camera on one of the police cars and described it as "a chilling reminder to all who viewed it at the sentence proceedings of the real danger in what took place and the real fear engendered by the shooting in the police officers concerned" (Sentence judgment at [91]). His Honour accepted that the victim impact statement of Senior Constable Shaw showed the serious psychological damage which this experience had caused to both him and his wife. His wife was the General Duties Station Supervisor at Wagga Wagga Police Station on the day and had heard the pursuit and her husband's involvement in it over the police radio.
His Honour accepted that while there was no intention on the part of the applicants to cause personal harm to the police officers concerned, that would not have been apparent to the police officers at the time and did not eliminate the risk of serious injury or death by way of a ricocheting bullet, or because a police car might have crashed. His Honour regarded it as an aggravating feature of these offences that they involved a grave risk of death or serious injury to the police officers. His Honour assessed the objective seriousness of each of these offences at the upper end of the midrange. The Applicants' subjective case
In reviewing the subjective features of the applicants' cases, his Honour noted that neither of them gave evidence in the sentence proceedings. His Honour was reliant upon two psychiatric reports from Dr Adams in respect of each of the applicants which were prepared in late 2016, and on the notes from Corrective Services. Those notes revealed that the applicants were model prisoners.
In relation to Mark, Dr Adams recorded a normal upbringing. Mark completed the Queensland equivalent of the higher school certificate and studied for three years at James Cook University doing Civil Engineering. Dr Adams recorded that things started to deteriorate when Mark's parents' marriage broke up in 2001. He left university in that year and commenced living and working with his father, to whom he was close. There was a property settlement which did not favour Gino, which made both applicants bitter. From 2003 they commenced to lead a somewhat itinerant life which Mark described as "self-sufficient and self-sustaining". He told Dr Adams that he and Gino did not like the law because it was restraining them.
Mark commenced offending in 2002 in Queensland by stealing. Thereafter, he was convicted in Victoria in early 2004 of stalking, causing criminal damage, intentionally damaging property and making a false document. There was a shoplifting conviction in April 2004 in New South Wales. In February 2007 he was imprisoned in Victoria for two months for robbery and fined for dealing with property suspected of being the proceeds of crime, and stating a false name. His Honour noted that his criminal record did not entitle him to leniency.
The conclusion of Dr Adams was that Mark had never suffered from a major mental illness including a mood, anxiety or psychotic disorder. Mark told Dr Adams that he had never misused illicit drugs, prescription medication or anabolic steroids. He had never been anything more than a social drinker and denied any problem with alcohol.
In relation to Gino, Dr Adams recorded that he grew up in a functional family, enjoyed his school years and left school at the age of 15 after having completed year 10. Although he did not obtain any formal qualifications, he became an accomplished brick layer, electrician and carpenter. He ran a number of businesses.
He met his wife when aged 19 and they subsequently married. In 1993 difficulties emerged within the marriage and in 1996 or 1997 his wife left the family home and went to Melbourne. Gino attempted to repair the relationship and purchased a property in Melbourne. This did not work and they formally separated in about 2000. Divorce documentation has never been completed.
Dr Adams reported that from 2004 Gino and his son were leading an itinerant lifestyle, first on a yacht and then, after its sale, by travelling around, working on properties and being paid cash in hand. Dr Adams recorded that Gino harboured some resentment for the way they had been treated by some of the landowners and as a result, they engaged in various vengeful acts against the property of these persons, but had never engaged in physical violence against them.
Gino told Dr Adams that they had been residing with a person in Campbelltown but when they featured on "Australia's Most Wanted" program, they moved to work at "Pinevale", having met with one of the persons who was involved in operating that property. Gino told Dr Adams that he and his son did not wish to get involved in drug growing, but pressure was put upon them in that regard. He told Dr Adams that he and his son felt totally threatened at "Pinevale" and feared for their safety. He was aware that the deceased and his associates were armed with firearms.
His Honour noted that Gino's account to Dr Adams of both he and his son feeling threatened and putting that account forward to explain the motivation for the murder, was significantly different to what Mark had told the police. In the absence of direct evidence from Gino, his Honour did not accept his account of the motivation for their behaviour. His Honour noted that what Gino told Dr Adams was similar to that which he first stated to the police upon his arrest, i.e. that the deceased had produced a firearm just before he was killed. His Honour also noted that subsequently Gino had accepted that Mark's account was the correct one.
Dr Adams recorded that Gino's criminal record commenced in 1984 in Queensland when he was convicted of stealing. There were further property offences in 1986, 1995 - 1997 and 2001 - 2004 in Queensland. For some of those offences, he spent short periods in prison but was generally dealt with by some form of conditional liberty or fines. There was one offence of larceny in New South Wales in 2004.
Dr Adams recorded that Gino's first offending in Victoria was in January 2004 for stalking, intentionally damaging property and being unlawfully on premises. There were subsequent offences involving property, fraud and stalking and in 2007 he was sentenced to a period of imprisonment for burglary, theft and criminal damage. His Honour concluded that Gino's criminal record did not entitle him to leniency.
His Honour noted that the only explanation which was given to Dr Adams for the offending was that the applicants developed an anti-authority belief system over a number of years. Dr Adams concluded that this had occurred partly because they separated themselves from pro-social and law abiding society, which apparently intensified their anti-authority standpoint. Dr Adams noted that Mark did not feel pressured in any way to accept his father's beliefs but he agreed with the sentiment of them.
Dr Adams concluded that a significant turning point apparently occurred when they were featured as part of the "Australia's Most Wanted" program. Dr Adams found the explanation for that hard to fathom because up to that time their offending consisted largely of relatively low level property offences. Dr Adams concluded that being so characterised appeared to have heightened their anti-authoritarian stance and solidified their views of being unprotected by the legal system and the police. Remorse
His Honour noted that in his ERISP of 28 October 2015 at a time when he had had three weeks to reflect on his part in the killing of the deceased, Mark said this: "Q153 But you, you said you went and grabbed the gun. A Yeah. Q154 Then what happened? A I just gave it to dad and I said, "Shoot him." And Dad was sort of like hesitant he goes, "No, tie him up, tie him up." I said, "Just shoot him". So, I couldn't be bothered tying him, up or so."
It was against that background that his Honour concluded that although remorse had to be judged at the time of sentencing, any expressions of remorse had to be assessed in the light of that statement, with no regret attached to it.
His Honour also noted that the applicants, through their counsel, had not offered any form of apology to the relatives of the deceased nor to the police officers. There was little by way of an expression of remorse recorded by Dr Adams. All that Dr Adams recorded being said by Mark was that "He accepted the impact of all their offending behaviour upon the victim."
In the case of Gino, Dr Adams reported him as saying that what they did was a "total misjudgment" and it was a "really bad call to do what we did". His Honour thought that there might be some small indication of remorse but it was not clear. Although Gino told Dr Adams that he recognised that damaging people's property would psychologically affect them and cause harm, he said nothing about how killing people might affect those close to them, nor how police officers might be affected by believing that they were being shot at by a high powered rifle while trying to apprehend the applicants.
His Honour noted that there was some evidence that the applicants had offered to apply their assets (principally a property settlement from Gino's wife worth about $48,000) towards the victims of the arson. His Honour accepted that such an offer, considered with what Gino had said to Dr Adams, could be considered as some remorse in relation to the arson. However, his Honour did not accept the rather general statements made to Dr Adams by both Gino and Mark as indicating any real remorse for the murder or the shooting offences.
His Honour recorded the following submission made on behalf of Mark: "114 Counsel for Mark Stocco suggested that remorse and contrition were shown by his early pleas and acceptance of responsibility for what they had done. It was submitted that that had to be seen in the light of a lack of any significantly incriminating forensic evidence with the result that the Crown case would not have been a strong one. There is little evidence of what forensic investigations had been done and, in the light of the early confession of the murder, not much forensic work may have been carried out. However, on the basis of the material I have I do not accept that, absent the admissions, the Crown case was not a strong one." (Sentence judgment [114])
His Honour rejected the submission that some allowance should be made in favour of Mark for his contrition and remorse. While his Honour was prepared to give credit for Mark's early confession, he was concerned by the changes in the explanation by Mark for the killing of the deceased. There was nothing in Mark's field interview or his ERISP suggesting that the murder was carried out other than because Mark believed that they were likely to be put off the land and because of frustration he felt towards the deceased and his business partners. His Honour noted that it was only when one read what Mark said to Dr Adams, approximately 12 months later, that there was any suggestion that the killing was done out of any sense of fear for what the deceased or his partners might do to the applicant. His Honour concluded that because the applicants were not prepared to give evidence and subject themselves to cross-examination, he was not prepared to place any weight on the justification provided to Dr Adams to the extent that it differed from what was said immediately after Mark was arrested. Rehabilitation
Dr Adams was guardedly optimistic about the prospects of rehabilitation of both applicants. He regarded it as a positive prognostic indicator that both of them had engaged in the correctional routine since their arrest. His Honour concluded that the issue of rehabilitation was of more significance for Mark because he was a relatively young man. Because of Gino's age, his Honour was of the opinion that there was not a great likelihood that he would ever be released from prison.
His Honour identified two matters which led him to think that Mark's prospects of rehabilitation were reasonable. The first was his immediate admissions and his truthful account of what happened. Secondly, when speaking with Dr Adams, he accepted the need to alter his anti-authority belief system and appeared to accept that he would need to continue to do so in order to lead a more stable existence in the community. His acceptance of that was shown to some extent by his reported behaviour in custody. Deterrence
Because of the nature of the offences and the circumstances in which they were committed, his Honour concluded general deterrence was a significant factor in the sentencing process. His Honour observed that committing offences as vengeance for perceived wrongs was a form of self-help against which the whole system of law, both criminal and civil, stood as a bulwark. His Honour regarded shooting at occupied police cars to avoid arrest was, as the maximum penalty for the offence indicated, a crime of great magnitude where both general and specific deterrence were of particular importance. Discount
His Honour accepted that both applicants pleaded guilty at the earliest opportunity and made admissions at the earliest opportunity so that the Crown understood the matters would never proceed to trial. Counsel for Mark submitted, that without the admissions, the Crown's case was not particularly strong and that taking both the utilitarian and contrition components into account, a discount of 35 per cent was appropriate. His Honour rejected that submission for the reasons already set out. His Honour did allow to each applicant a discount of 25 percent for the early pleas of guilty. Special circumstances
His Honour noted that senior counsel for Gino submitted that consideration should be given to his age and that the overall sentence imposed was likely to mean that he had no real prospect of being released on parole. He submitted that coupled with that was the fact that it was likely that he would spend his eighties in prison. His Honour accepted that imprisonment would be more onerous for an older person and on that basis, his Honour was prepared to find special circumstances. His Honour was not prepared to find that there were any special circumstances in respect of Mark. His Honour considered that the time that he would spend on parole would be adequate for further rehabilitation and reintegration into the community.
In relation to Counts 3 and 4, his Honour noted that there had not been many sentences imposed for such offences. His Honour also had regard to the fact that since one of those decisions (R v Michael Kanaan [2006] NSWSC 539) the maximum penalty for the offence had been increased from 14 years to 25 years. His Honour applied the 25 per cent discount to the indicative sentences before setting out each of those sentences.
His Honour emphasised that in fixing an aggregate sentence, he had had regard to the fact that there were four separate instances of offending involving four different victims or groups of victims. His Honour noted the submission made on behalf of Mark that the offending in Counts 3 and 4 had to some extent occurred as part of a single course of conduct. While acknowledging that the submission was to some extent correct, his Honour also noted that there were different police officers involved in each offence and that there was a time gap between the two offences. The appeal
Because Mark relies upon five grounds of appeal, two of which are identical to those relied upon by Gino, it is convenient to deal with his grounds of appeal first. Where those grounds of appeal are identical to the two grounds relied upon by Gino, they can be dealt with together. Mark Stocco - Ground 1 - Failing to take into account assistance provided by the applicant to Law Enforcement authorities in the detection/investigation of the murder.
Mark submitted that his Honour erred in not taking into account that Mark's co-operation with police in relation to the murder was of such a high level that it amounted to positive "assistance", pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). Mark submitted that his assistance in relation to the murder should have been reflected by a further discount on top of the 25 per cent given for the plea of guilty to that offence.
Mark submitted that his full and frank admissions about the circumstances of the murder, which were volunteered immediately upon his arrest and the fact that he maintained those admissions in his ERISP interviews were such that it was an error on the part of his Honour not to take them into account. Mark relied upon his Honour's finding (at [73] of the sentence judgment) that upon his arrest "Mark Stocco immediately made admissions to police and assisted in the location of the deceased's body". Mark submitted that it was his statement at the time of his arrest and later ERISP which effectively caused Gino to abandon his exculpatory explanation of how the killing occurred.
Mark accepted that it was possible that with further investigation police might have been able to assemble evidence to prove that the deceased had died and that they might have ultimately been able to assemble a reasonable case to prove that either he or Gino was responsible for his death. He submitted that as a result of his statements and admissions, the police investigation and the Crown case for murder had been largely established. He submitted that the only persons who could give evidence about what had happened were he and Gino. In those circumstances, his fulsome confession and volunteering of information was of great significance and assistance to the Crown case.
Mark also submitted that it was apparent from the statement which he made at the scene at the time of his arrest and subsequently by way of ERISP, that police did not know where the deceased's body was located, or even whether he was dead. Mark submitted that while the deceased's body was later recovered from the "Pinevale" property, it could only be speculated as to whether police would have found the body, if he had not provided the assistance which he did. Mark submitted that without the deceased's body, the case for murder would have been weak and probably unsustainable, especially as the deceased lived an isolated life and rarely had contact with friends or family.
Mark submitted that his immediate admissions removed the need for the Crown to disprove self-defence, which was suggested in the initial statement of Gino. Mark submitted that his statements were almost certainly instrumental in Gino changing his versions of events which was to the effect that he had acted in self-defence and that the deceased had produced a shotgun.
Mark submitted that although s 23 of the Sentencing Act and cases such as R v Ellis (1986) 6 NSWLR 603 were not specifically raised in the sentence submissions, the issue was raised in par [18] of his written submissions which stated: "Mark Stocco's admissions in assistance to authorities began immediately following his arrest at Pinevale with location of the deceased's body. It continued thereafter with lengthy ERISPs … taking both the utilitarian and contrition components a discount of up to 35 per cent can be appropriate …" In oral submissions, his counsel submitted: "I'm seeking to remind the court that that is the law and that, in Mark Stocco's case, particularly with respect to the murder, given the circumstances in which the murder occurred, those admissions ought be regarded that the fullness, the frankness, the immediacy of them ought be regarded as real evidence of contrition against the background of a Crown case that may not necessarily have been a strong one absent it." (Sentence transcript 20)
Mark accepted that as a court of error, this Court would not lightly entertain arguments on appeal which could have been put but which were not put in the court below (Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81]). He submitted, however, that this was not a case of a "failure to take the point" in the court below, because submissions were made about the fulsome nature of his admissions and his assistance to authorities (albeit in the context of contrition). Mark submitted that even if this Court were to conclude that the argument relied upon under this ground was not adequately identified before his Honour, the circumstances of this case are of the kind referred to in Zreika at [81]-[82] and in Mooney v R [2016] NSWCCA 231 at [45]-[48], in that a failure to take into account the applicant's co-operation and assistance would amount to a miscarriage of justice.
In summary, Mark submitted that the assistance given by him was very significant and distinguished his case from that of Gino so that his assistance should have been acknowledged and rewarded by the imposition of a less severe sentence. Consideration
As was acknowledged by Mark, there was in the sentence proceedings no reference by his counsel to s 23 of the Sentencing Act or to R v Ellis considerations. His counsel only relied upon his admissions in the context of assessing his contrition and remorse. His full written submission on the issue was: "16 The offender Mark Stocco's accounts of the murder and other offences in his 3 interviews with police has been accepted as fulsome and candid. So much is apparent by the Crown's reliance, in its written submissions, on details provided by him. Significant aspects of it, such as cannabis cultivation at Pinevale and the location of a weapon abandoned in a log in bushland sometime after the police chase and shooting offences on 16 October 2015 were corroborated by police investigation. 17 Given the circumstances of the murder, at a remote property without anyone but the offenders and deceased present, in the context of the ongoing and substantial criminal enterprise of cannabis cultivation, and the lack of any significantly incriminating forensic evidence, absent the admissions by Mark Stocco, it could not be said that a Crown case against him would have been a strong one. In those circumstances additional weight ought be given to the plea of guilty in relation to that offence as evidence of contrition. This is not an instance of the Crown case, absent admissions, being overwhelming and therefore any plea of guilty having little weight as evidence of contrition … . In this case the fact that Mark Stocco confessed to the crimes, particularly the murder, ought not reduce the value of the plea as evidence of contrition, but rather increase it. 18 Mark Stocco's admissions and assistance to authorities began immediately following his arrest at Pinevale with location of the deceased body. It continued thereafter with lengthy ERISPs at the police station later on 28 October and again at Wellington Correctional Centre on 10 December 2015. 19 Taking both the utilitarian and contrition components a discount of up to 35% can be appropriate: R v Thomson and Houlton (2000) 49 NSWLR 383 at [162]."
In oral submissions on sentence, Mark's counsel said: "… In Mark Stocco's case particularly with respect to the murder given the circumstances in which the murder occurred those admissions ought be regarded that the fullness frankness the immediacy of them ought be regarded as real evidence of contrition against the background of a Crown case that may not necessarily have been a strong one absent it. HIS HONOUR: I'm not sure about that Mr Nash. Admissions were made at an early time; that is certainly an important factor but I wouldn't have thought that absent those admissions it would not have been a strong Crown case albeit it would be a circumstantial one; but I don't know to what extent there were attempts to gather forensic evidence given the admissions that were made. NASH: Yes, your Honour. The statement of facts summarises some of those investigatory steps and I would rely on my written submissions, I suppose, in furtherance of that, but the fact remains your Honour that it would be a circumstantial case but it was one where, yes, there were no other witnesses and so on." (Sentence transcript, T20-21)
This Court has repeatedly emphasised that an appeal is not the occasion to reformulate the case made below. In Zreika v R Johnson J (with whom McClellan CJ at CL and Rothman J agreed) said: "80 There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49]. … 81 The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29]. 82 In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29], it may "render a serious injustice" if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance."
It was those latter statements of principle from Zreika v R which were relied upon by Mark to make out this ground of appeal. In doing so, Mark objected to the Crown relying upon any fresh or new evidence to meet this ground of appeal. He submitted that if the Crown were to be allowed to adduce such evidence, then he also ought be able to do so. In this regard, the Crown sought to rely upon an affidavit of Megan Betteridge, sworn 22 November 2017, which had a number of statements attached to it and Mark sought to rely upon an affidavit of Peter Allport, affirmed 21 February 2018, which also had a number of statements from police and other witnesses attached to it.
Because s 23 of the Sentencing Act was not relied upon in the sentence proceedings, there was no requirement nor opportunity by the Crown in those proceedings to consider presenting material that would be relevant to the s 23 criteria. This is not a case of the Crown making a forensic choice and thereby being bound by it. The opportunity to make such a forensic choice never arose for consideration because of the way in which the matter was conducted on behalf of Mark at first instance.
In those circumstances and given the indulgence sought by Mark to now rely upon a ground which was not relied upon in the sentence proceedings, it is only fair that the Crown be allowed to respond. Similarly, and for completeness, I have also had regard to the material in the Allport affidavit to which I was referred by counsel for Mark.
In any event, in order to determine whether a miscarriage of justice has occurred as a result of s 23 not being raised in the sentence proceedings and his Honour not having taken it into account, it is necessary to look at the background material and the various witness statements relied upon by both parties.
It should also be noted that the Crown accepted that in s 23 of the Sentencing Act, the assistance referred to is not defined. Nothing in the section purports to limit the type of assistance that falls within the provision beyond requiring that it be assistance to "law enforcement authorities" in the "prevention, detection or investigation or in proceedings relating to" an offence (R v XX [2017] NSWCCA 90 Beech-Jones J (with whom Bathurst CJ and R A Hulme J agreed) at [32]). The Crown also accepted that s 23(1) has not been read narrowly and that the High Court in CMB v Attorney-General for the State of New South Wales [2015] HCA 9; 256 CLR 346 held that disclosure by an offender to law enforcement authorities of otherwise unknown guilt involves the provision of assistance to law enforcement authorities within the meaning of the section (at [72] per Kiefel, Bell and Keane JJ and at [41] per French CJ and Gageler J).
The submissions put on behalf of Mark are to the effect that he is entitled to an Ellis type of discount. In R v Ellis Street CJ observed at 604: "The leniency that follows confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned."
In essence the submission is that without his assistance it is unlikely that the deceased's body would have been discovered and it would have been much harder for the Crown to disprove Gino's initial assertions that in killing the deceased, he was acting in self-defence. It is therefore necessary to analyse the evidence to which the Court was referred and determine whether s 23 of the Sentencing Act could and should have been invoked in the sentence proceedings so as to reduce the sentence imposed on Mark.
The relevant matters that arise for the Court's consideration under s 23(2) are: 1. The significance and usefulness of the offender's assistance to the authorities concerned, taking into consideration any evaluation by the authorities of assistance rendered or undertaken to be rendered; 2. The truthfulness, completeness and reliability of any information or evidence provided by the offender; 3. The nature and extent of the offender's assistance or promised assistance; 4. The timeliness of the assistance or undertaking to assist; 5. … 6. Whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence.
It is common ground that after being arrested for other matters, Mark indicated to police the general area where the deceased's body was found and participated in an interview at the scene. He later also gave a recorded interview at Dubbo Police Station where he again admitted his involvement in the deceased's murder.
However, contrary to Mark's submissions, it is not at all clear that absent the information provided by him, the deceased's body might not have been found and the Crown case would have been significantly weakened. That substantially overvalues the effect of Mark's evidence.
It is clear from Detective Gorman's statement of 21 November 2017 that police attended the property on the day in question with a crime scene warrant for the offence of murder. The information provided by Mark at the scene was after his arrest for other offences and at a time when he had been asked by police about whether there was a body on the property.
Given that police were going to search the property pursuant to that warrant, there was a strong likelihood that the body of the deceased would have been found without the assistance of Mark. This is because:

The location of the remains was only a short distance from the buildings on the property.
There was cleared land around the dwelling and access roads.
The remains were not buried.
The remains had a very distinctive smell.

Moreover, at the time Mark was making his statement at the scene, Gino was also making a statement. In that statement, after an initial denial, Gino admitted that he had shot the deceased. The evidence of Detective Chief Inspector Banfield as to what Gino told him on this occasion is: "I said, "Lift your head and look at me. I am trying to get some closure for the family, now where is he?" Stocco's head remained down. Detective Gill said "Look at the Inspector". Stocco looked up and said "He's over there" motioning with his head an area behind me. I said "Whereabouts?" Stocco said "Up there, just past that rubbish on the hill" indicating an area approximately 100 to 150 metres away southwest of the homestead. I said "Who killed him?" Stocco said "I did. I shot him." I said "Who put him up there?" Stocco said "We both did". I said "Can you take me to where the body is?" He said "Yes". (Statement, 2 November 2015, par [13])
Although a subsequent walkthrough failed to find the body, a distinctive smell was present which Detective Inspector Banfield believed was that of a decomposing human body. During the course of that walkthrough, Gino told Detective Inspector Banfield that he had shot the deceased in the stomach with a shotgun which would have been recovered from the Nissan Navara which was involved in the earlier shooting incident with pursuing police (Statement, par [14]).
While it is correct that the statement made by Gino was to the effect that he had acted in self-defence after the deceased produced a gun, a review of the transcript of Gino's record of interview makes it clear that there were a number of difficulties in his reliance upon the purported self-defence account. In particular, there was no explanation for why Gino and Mark did not simply leave the premises. In his ERISP Gino said that he armed himself with a pump action shotgun and approached the deceased. He said that the deceased was not armed with a gun at the time that he shot him but that the gun was leaning against some part of the shed where the deceased was working and the deceased had tried to get it (Q/A 614-616; Q/A 725-729).
Gino agreed that at the time he first shot the deceased, the deceased had gone for the gun but that he had not put his hand on it and that the second shot was fired while the deceased was on the ground (Q/A 1143-1145). When asked if he considered leaving the property instead of shooting the deceased, Gino said: "Yeah I did but then I, I said after everything I'd done for them why should I have to leave" (Q/A 593-594).
Gino also agreed that he had considered packing up their stuff and leaving at midnight while the deceased was asleep. He said "Well, it could have been a, a vague option, yeah" (Q/A 698-700).
Later in his ERISP, Gino agreed that he and Mark could have left without having to shoot the deceased (Q/A 1363-1365). He described having a "fury" in him on the morning that he shot the deceased because he knew that they would have to leave and they had left too many properties before (Q/A 1377-1381). Early in his interview Gino nominated Mark as the one who had told him that they just had to "get rid" of the deceased and "do him away" (Q/A 539-540; Q/A 554-555).

Stocco, Gino v R; Stocco, Mark v R

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