The Queen v Landmark [2015] VSC 103

2 You are currently 36 years of age, having been born in December 1978. You were 33 years of age at the time of this offending.

3 As stated earlier, you have pleaded guilty to this offence. Your plea must be considered a late plea in that the matter had previously been listed for trial in Warrnambool, your two co-offenders had pleaded guilty and been dealt with, and the matter was listed for re-hearing in Warrnambool in February before you determined to enter a plea of guilty. Despite the lateness of the plea, you are entitled to and will receive a significant discount for your plea of guilty as your plea saves the community significant cost in terms of running a trial, together with the difficulty, and emotional trauma that most witnesses undergo when being asked to recall events of this nature.

4 The circumstances of the totality of this offending are somewhat bizarre, but mainly reflect very poorly upon each and every person involved. They are somewhat convoluted in terms of participants, times and locations and I shall summarise as best I am able those particular circumstances that applied.

5 The persons of significance in this case, apart from yourself, are the principal offender Sciascia, and Dylan Robertson the other co-offender, both of whom have been previously sentenced for their participation, together with the victim Troy Hocking, who died as a result of this criminal activity. He was born on 3 June 1992 and at the time of the incident he was only 20 years of age.

6 In respect of your co-offenders, Sciascia was 26 years of age and Robertson 31.

7 You all knew each other reasonably well and your relationships had bouts of hostility as well as periods of friendship, those relationships could best be described as erratic.

8 The circumstances relating to this offending commenced in the early hours of Saturday, 13 October 2012. The deceased, Troy Hocking, was in a vehicle being driven by the co-offender, Dylan Robertson, and in the early hours of that morning the car was intercepted by police who searched the vehicle and located four resealable bags containing a crystal substance and a Nokia mobile phone which belonged to the offender Sciascia.

9 This appeared to be part of the reason for why in the early hours of the following day, Sunday 14 October 2012 at about 2.40am, Sciascia and Robertson attended at the home of the deceased Troy Hocking. He was not home but his father was in the premises, initially asleep and unaware of their attendance. Sciascia and Robertson took property belonging to Troy Hocking from his bedroom, purportedly in lieu of a debt that Hocking owed to Sciascia for some drugs, and some of the property, it would appear, was taken from there by agreement with the father of the deceased. It included items such as a television, play station, x box and some jewellery.

11 At about 4pm that same day, Sciascia and Robertson came to your premises located at 36 Barkly Street, Portland in Robertson's green Rodeo. The property that had been taken from Troy Hocking's home was still in that vehicle. At about 9pm that evening, the deceased Troy Hocking, together with other friends of his, namely Christian Knight and Ronald Cluney, attended at your premises. Hocking, had a baseball bat in one hand and a hammer in the other. Knight, a cricket bat and Cluney, a fence paling. One of the persons asked for the key to Robertson's vehicle, so that they could take Hocking's property.

12 Present at your property at the time, apart from the men I have already mentioned, were Kirsty Dach, together with her five year old daughter, Imogen. You and Dach were angry at the deceased and his associates for behaving in the manner they were, whilst your young daughter was at home. And, as a result, you, armed with a pole, Robertson armed with a torch and Sciascia unarmed, left the house. Cluney struck Robertson with a fence paling to his leg. You three men then got into Robertson's vehicle and drove away. The deceased and his associates followed in a white car with Cluney driving. The white car rammed the rear of Robertson's vehicle and attempted to cut it off, before ultimately driving away.

13 The last incident that occurred on this day was that the police at 10.05pm intercepted Robertson's vehicle in Portland, all three of you were still in the vehicle, and police seized the property in the vehicle that belonged to Troy Hocking, believing it to be stolen property.

14 The next thing that occurred was on the Monday, 15 October, Sciascia and Robertson joined you and Michael Perry-Karaitiana at your home. Sciascia and the deceased spent time during that day either talking on the telephone or sending text messages to each other about what had happened over the previous two days, and finally arranged to meet at 5.30pm at a place called 'Pivot Beach' in Portland, with the express purpose of sorting out their differences by way of an arranged fight.

15 Subsequent to these arrangements, you, Sciascia, Robertson and Perry-Karaitiana left your premises in Robertson's green Rodeo utility, with Robertson driving, Sciascia in the front passenger seat and you, together with Perry-Karaitiana, in the back seat. You went to premises at 48 Willunga Street for the express purpose of Perry-Karaitiana getting 'back up' for the fight between Sciascia and the deceased. What occurred after that resulted in the death of Troy Hocking.

16 The vehicle in which you were a passenger was parked in the driveway of 48 Willunga Street and Perry-Karaitiana got out of the vehicle, went to the house and commenced talking to some of the occupants. Whilst this was occurring, the deceased Hocking, together with two of his friends (Knight and a man by the name of Roy King), arrived and parked in the driveway at 46 Willunga Street, adjacent to the vehicle in which you were seated. The car carrying the deceased and his friends had actually seen the vehicle in which you were travelling, and had followed you to this location.

17 You and Sciascia got out of your vehicle and approached Hocking as he sat in the front passenger seat of the car. You abused the deceased for bringing trouble to your home when the kids were there, and punched him to the face. The deceased asked for his belongings to be returned, and the argument continued about what had occurred previously, the alleged drug debt, and what was owed.

18 Sciascia then approached the deceased, who was still seated in the vehicle. After further words were exchanged, Sciascia produced a .22 calibre homemade single-shot pistol. Further words were then exchanged. Sciascia then moved backwards and discharged the firearm at Troy Hocking, the bullet travelled through Hockings' left hand and into his lower chest area. The driver of the vehicle immediately drove away, directly to the Portland Hospital.

19 You and Sciascia returned to Robertson's vehicle, which drove away immediately, leaving Perry-Karaitiana behind. The car was driving away, and as Sciascia was trying to remove the spent bullet, which could only be done by hand, you passed him an object from the back seat to help.

20 You all drove to the paddock directly opposite your premises in Barkly Street, Portland. The three of you got out of the vehicle and you were present when Sciascia hid the firearm in some long grass in the vacant block. Having hidden the firearm, the three of you returned to Willunga Street and picked up Perry-Karaitiana, and then returned to your premises in Barkly Street, Portland.

21 There were discussions at your premises about what would happen if Troy Hocking died, and Sciascia stated: 'fuck him he should have paid his bill'. Whilst there, Sciascia had a shower and washed his clothes to remove any evidence of gunshot residue.

22 Not long after this, Cluney, together with several other associates, came to your premises in possession of baseball bats, yelling and screaming. There were two carloads of people, yelling and screaming and making threats, and some sort of physical confrontation actually occurred between you and Cluney. Sciascia told you to go and retrieve the gun from the nearby paddock, and the two of you went over to the paddock and started looking for the gun.

23 Perry-Karaitiana tried to stop you from retrieving the gun, but you said you had to obtain it for Sciascia. You continued looking for the gun before yelling at Sciascia that you couldn't find it. You remained in the paddock for some time looking before you started to leave the paddock, but then returned. The police attended your premises before you could locate the firearm, and when they arrived you and Sciascia walked from the paddock. You were spoken to by the police, taken to the police station and arrested during your conversation with police officers.

24 In your record of interview on 17 October, you confirmed many of the details to which I have just referred. Some additional matters to which I have not referred, but which you have stated in your interview, include that you believed the possessions that had been taken from Hocking's home were in lieu of a debt that Hocking owed to Sciascia and that he had the permission of Hocking's father to take those goods. You told the police many things in your interview, which was long and co-operative, and I will refer only to some of those matters, in particular;

• that when you were parked next to the deceased in Willunga Street that you had got out of the vehicle, together with Sciascia, and had approached the window of the white utility where the deceased was seated, you punched him to the head a few times and abused him for bringing trouble to your family home.

• that as you were turning to return to the vehicle in which you had attended, you heard yelling, followed by a 'pop' and then saw Sciascia, with a firearm in his hand, and you realised Hocking had been shot.

• You were unaware of Sciascia having a firearm with him, prior to that time.

• That Sciascia tried to push the gun into your hands, but you refused to take it.

• That you did attend in the paddock opposite your premises where the gun was stashed.

• You told the police, further, that when Sciascia directed you to go and find the gun in the paddock, that you only pretended to look for it.

25 The Crown say that your offending was comprised by three sets of actions; first, that you assisted him to remove the spent cartridge from the gun; second, that you assisted Sciascia by your presence to hide the gun; and that you assisted Sciascia in the washing of his clothes for the purpose of removing gunshot residue.

26 The recitation of those events ought to cause you and everyone involved in this matter to be deeply ashamed. You are grown men behaving like small children. Your behaviour, and that of your co-offenders, was lawless behaviour; reckless and indifferent to the laws of this state. The belief that you can act like vigilantes in respect of a drug debt, that you are entitled to punish someone for behaving in front of your child in a manner of which you do not approve, arrange and organise fights and participate in them because someone has done something you don't like.

27 This sort of behaviour must stop. We are not living in the fictional old wild west, we are living in a society that is ordered, has laws and applies them. You and your associates seemed to be living like fringe dwellers, on the outskirts of society, a semi-lawless life where you believed you could make up your own rules and apply your own justice. That will not be tolerated by the rest of our community.

28 The consequences of your behaviour is that a man of 20 is dead. Every life that is lost hurts us as a society and a community. And although we have lost a life here, that is not as a matter of law, the offence for which you are being punished.

29 The main offender in this case pleaded guilty to a count of defensive homicide and was sentenced to a term of nine years with a minimum of six years before being eligible for parole. His Honour Bell J indicated that, but for the plea of guilty, he would have sentenced him to 12 years with a non-parole period of eight years. That sentence was imposed on 25 June 2014, it also being a late plea. Your co-offender Robertson, sentenced after a plea of guilty, to assist an offender, before her Honour Curtain J on 6 November 2013 was sentenced to 18 months' imprisonment with a minimum of 12 months before becoming eligible for parole. Her Honour declared, pursuant to s 6AAA that, but for the plea of guilty, he would have been sentenced to two-and-a-half years' imprisonment with a non-parole period of two years. Her Honour also indicated that, in sentencing Robertson, she had imposed a sentence that was less severe than would otherwise have been imposed, by reason of an undertaking given by him to assist in the prosecution of two offenders, those offenders being you and Sciascia.

30 You have a significant criminal history with prior convictions dating back to 1997. You have 16 appearances between 10 February 1997 and 8 July 2010. The majority of your charges are from New South Wales and many have resulted in terms of imprisonment. Your initial offending related to numerous driving offences with an occasional resist or hinder police and one custody of a knife in a public place by 2002. By December of 2002, you were before the courts for numerous offences, relating to both driving and larceny of motor vehicles, ultimately receiving a suspended term of imprisonment. That behaviour continued on through 2003 and 2004 including a number of offences relating to assault officer or resist officer in execution of duty resulting, together with the larceny charges, in terms of imprisonment. Other driving offences occurred after your release again resulting in terms of imprisonment and in December 2007 you were sentenced to two years with a one year minimum for using offensive weapon to prevent lawful detention, and on 8 July 2010 charges of destroying and damaging property and goods in custody, larceny, together with resist officer in execution of duty, assault officer in execution of duty and escape police custody, you received a total effective sentence of 12 months' imprisonment suspended for 12 months, and on 22 September 2010 you were breached on that suspended sentence, and sentenced to a term of 12 months' imprisonment with a minimum of six months before being eligible for parole.

31 In this case, I have received two victim impact statements. One from Trudi Dennette Steff, the mother of the deceased Troy Hocking. And another from Kelsey Albert, the partner of Troy Hocking. I have read each of those statements and it is most unfortunate that no matter what I do, no matter what sentence I impose, it will not return the son and partner that they lost. Whilst the court attempts to understand the pain that people are suffering, it is in all probability impossible to fully gauge the extent of the pain that you have inflicted upon people with your actions in supporting and assisting Sciascia. I can only say to them that I have read, I have heard and have remembered what it is they said when I determine the appropriate sentence to be imposed upon you. Equally, they must remember that I am not sentencing you for the murder of their son and partner, but for assisting an offender with an intent to cause serious injury.

32 I also have to take into account your personal circumstances. You were born in Wollongong. You have a brother Clint and a mother and father. Your mother and your brother came to court to support you, your father would have been present but for his employment. You attended both Oak Flats primary and secondary school and upon leaving school obtained employment, as an electrical trades assistant at the end of Year 10. Your father was an electrician, who worked in the heavy industry area, and he assisted in you obtaining employment. You worked for a company called Transfield, before working at another company in Port Kembla in a steel furnace.

33 Around the age of 18 you had your first foray into drug use, with your instructions to your counsel being that you were out with some workmates after work and a workmate injected you with amphetamine. You did not become an immediate addict to the drug and managed to stay in employment for some time. What I am informed is that you started using on weekends, in the context of socialising and it went on like that for some years. You were employed at that stage for Transfield, building telecommunication towers in Sydney. Around the age of 19 to 20 you became engaged to be married, and also around that time, for the first time, you became involved with crystal meth to which you became addicted.

34 I find it troubling that anyone has been an addict to crystal meth for some 16 to 17 years, as it was a not very common drug back at that stage. Amphetamine is a common drug, but you rarely saw or heard of crystal methamphetamine. Your counsel indicated that you did not use ICE, which is what crystal meth is known as, on a daily basis, because there were large periods of time in which you were either in custody or when you were in employment and on those occasions not using. Your counsel described it as plaguing your life ever since that time. That to a large degree becomes obvious from your prior criminal history. You have been in and out of prison on theft charges, charges of violence, non-stop driving whilst disqualified, driving under the influence, and unfortunately, demonstrating a disregard or contempt for the court's orders.

35 As indicated your family came from New South Wales. Your father moved to Portland about six or seven years ago, as a result of having obtained some work there as an electrician and liking the town. The whole family moved there, including your grandparents. You were still in prison in New South Wales when they moved down there. You had met Kirsty Dach, you current partner, whilst you were living in Wollongong and you formed a relationship during your period on parole.

36 Your father is 'a fly in fly out worker' which is why he was able to relocate himself and all of the family to Portland. You determined in 2011 that you would also try and make a clean break with your life, to put the criminal milieu in which you had been involved in New South Wales behind you and start a new life in Portland. Your father assisted you with purchasing a home, which you still own and where you set up family with Ms Dach. Initially things were going well. You were on parole and that parole was transferred to Victoria. You had obtained some work on a trawler, and you had desisted from drug use. You unsurprisingly have hepatitis, a common problem with long term drug users and you have had that for some seven or so years. You were placed on the drug treatment 'Interferon' and that ultimately made it impossible for you to work on the trawlers. It meant that work ceased and you had difficulty in obtaining other work in Portland. It was submitted that there were two periods, since moving back to Portland, in which you succumbed to drug addiction. The first was in the weeks leading up to the events to which you have pleaded guilty. I am informed that you had met certain people who were involved in the drug scene and you relapsed into drug use, and had been using for a period of four to six weeks at the time of this offending. You knew the deceased man, Troy Hockey, from that same milieu. He had supplied you with drugs. Sciascia supplied you with drugs also.

37 It was submitted that you became involved in this offending in a passive manner, that is, that you did not go seeking it. Whilst you are not an instigator, and it is not put that you are an instigator, you are equally old enough to know that you do not become involved in matters of this nature.

38 The second occasion in which you fell again into drug use was during the time of the trial in Warrnambool, which was to do with the pressure of what was occurring at the time.

39 Unlike Mr Robertson, your plea is at the latest possible stage. Whilst you gave a record of interview to the police in which you made full and frank admissions as to your actions, you were contesting this trial and you were not assisting the police by giving evidence; a position distinctly different from that of Roberson.

40 Robertson pleaded guilty to, and was sentenced for, the offence of assisting an offender in relation to the offence of murder. It carried a maximum penalty of 20 years' imprisonment and her Honour Curtain J described it as a ' significant example of a serious offence'[1]. The situation is that Robertson is likely to feel a sense of grievance, as he has pleaded guilty to assisting an offender in relation to the crime of murder and yet none of his co-offenders has been convicted of that crime. You have waited a considerable time to enter your plea and the result is that the maximum penalty that you now face is a penalty of 5 years imprisonment, compared to his maximum penalty of 20 years.

41 In that case Robertson had driven the car to allow Sciascia, together with you, to flee the scene, driven him to your premises, which enabled him to shower and wash his clothes, to hide the firearm, and then to establish a 'purported alibi'[2]. Like you, Robertson had a significant drug history over a lengthy period of time.

42 I have to balance all of the factors to which I have referred in these reasons and arrive at a just and appropriate sentence. You are a person to whom personal deterrence is applicable and general deterrence is a significant factor, for the obvious reasons already outlined. I do not hold great hope for your future prospects of becoming a rehabilitated and useful member of our society, but I have no doubt that you wish to achieve it, it is just that the road for people with your long term addiction issues is hard and a very difficult one. Willpower and strength of character are not obvious character traits that you possess, but you are not yet at the stage that you are totally beyond redemption.

43 Balancing all of the matters I am bound to consider under the Sentencing Act, together with the matters mentioned, you are convicted and sentenced to be imprisoned for a period of 2 years and 3 months. I direct that you are to serve a minimum of 1 year and 8 months before becoming eligible for parole. Pursuant to s 6AAA of the Sentencing Act, I declare that, but for your plea of guilty, the sentence I would have imposed would have been 3 years with a minimum of 2 years and 3 months.

44 Declare that 286 (two hundred and eighty six days) has been served in pre-sentence detention in relation to this matter (not including today) and such is to be noted in the records of the court.

[1] R v Robertson [2013] VSC 625R at [13]

[2] R v Robertson [2013] VSC 625R at [14]