R v Gino Stocco; R v Mark Stocco

[2017] NSWSC 304

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Gino Stocco; R v Mark Stocco [2017] NSWSC 304
Hearing dates:	27 January 2017
Date of orders:	31 March 2017
Decision date:	31 March 2017
Jurisdiction:	Common Law - Criminal
Before:	Davies J
Decision:	Gino Stocco For the offences of recklessly destroying property by fire, two counts of discharging a firearm to avoid apprehension and for murder, and having regard to the matters on the Form 1 in respect of Count 3, sentenced to an aggregate sentence of 40 years imprisonment commencing 28 October 2015 and expiring 27 October 2055 with a non-parole period of 28 years expiring 27 October 2043.  Mark Stocco For the offences of recklessly destroying property by fire, two counts of discharging a firearm to avoid apprehension and for murder, and having regard to the matters on the Form 1 in respect of Count 4, sentenced to an aggregate sentence of 40 years imprisonment commencing 28 October 2015 and expiring 27 October 2055 with a non-parole period of 30 years expiring 27 October 2045.
Catchwords:	CRIMINAL LAW – sentence – murder – recklessly destroy property by fire – two counts of discharging a firearm to avoid apprehension – separate criminality of the offences – father and son – working as labourers on rural properties – developed sense of grievance against various employers – arson of sheds and farming equipment out of vengeance for perceived wrongs – no intent to cause personal injury by fire -deterioration in relationship with property manager on a separate property – apprehension by offenders that they would be put off the property – older offender shoots and kills manager at younger offender’s instigation – two subsequent police pursuits – offenders fire at police vehicles with high-powered rifle – no intent to injure or harm police officers – no remorse shown except for arson offence – no drug, alcohol or mental health issues – development of anti-authority belief system - significance of general and specific deterrence for offences concerned – special circumstances for older offender by reason of his age and the length of sentence
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	Le v R [2012] NSWCCA 202 Jonson v R [2016] NSWCCA 286 Porter v R [2008] NSWCCA 145 R v Michael Kanaan [2006] NSWSC 539 R v Thomson; R v Houlton (2000) 49 NSWLR 383
Category:	Principal judgment
Parties:	Crown Gino Stocco (Accused) Mark Stocco (Accused)
Representation:	Counsel: W Creasey SC (Crown) M Ierace SC (Gino Stocco) I Nash (Mark Stocco)   Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Gino Stocco) Legal Aid NSW (Mark Stocco)
File Number(s):	R v Gino Stocco [2015/313607; 2015/317289 &2015/381915] R v Mark Stocco [2015/317238; 2016/2627 & 2015/314098]

Judgment

1. On 7 October 2016 each of the offenders, Gino Stocco and Mark Stocco, was arraigned on the following charges:

(1) On 29 August 2014 at Canowindra, New South Wales in the company of each other recklessly destroyed two farm sheds and contents therein and a 2004 John Deere 682 model tractor the property of G F and D J Tidswell by means of fire 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 New South Wales did murder Rosario Cimone contrary to s 18(1)(a) of the Crimes Act. The maximum penalty for this offence is life imprisonment and there is a standard non-parole period of 20 years;

(3) and (4) Two counts that on 16 October 2015 at Mangoplah New South Wales did discharge a firearm namely an SKK semi-automatic rifle, with intent to prevent his lawful apprehension contrary to s 33A(2)(a) of the Crimes Act. The maximum penalty for this offence is 25 years imprisonment and there is standard non-parole period of 9 years.

Each of the offenders pleaded guilty to all four charges. At the sentence hearing on 27 January 2017 I convicted the offenders of those offences and they now come to be sentenced for them.

2. The offenders have asked me to take into account the following offences on a Form 1 which I will do:

1. Police pursuit – drive recklessly (2 counts);

2. Receiving stolen property outside New South Wales;

3. Possess unauthorised firearm being the Remington 12 Gauge Shotgun to which reference will later be made;

4. Possession of ammunition whilst unlicensed;

5. Illegal use of a motor vehicle being a White Toyota Land Cruiser.

For Gino Stocco those matters will be taken into account in respect of Count 3 and for Mark Stocco those matters will be taken into account in respect of Count 4.

3. Those offences also appear on a s 166 Certificate.

Background

4. I find the following facts, noting that any facts found against the offenders are found beyond reasonable doubt.

5. The offenders, Gino and Mark Stocco, are respectively father and son. Gino Stocco was born on 1 December 1957 and Mark Stocco was born on 24 October 1979. They were aged 56 and 34 at the date of the first offence charged and are now aged 59 and 37.

6. Both offenders 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.

7. Both offenders were subject to warrants issued in Queensland for offences allegedly committed by them in 2011 and 2012.

Count 1: Destroy Property by Fire

8. In November 2011 Peter Fairley, the then owner of the property 'Plenty' located at Canowindra, advertised in 'The Land' newspaper for a caretaker. This advertisement was answered by Gino in December 2011 and it was agreed he and his son Mark would commence as caretakers.

9. The property was used for farming purposes and contained a main house, a number of sheds, a workshop, machinery and shearing shed. There is also a three bedroom cottage at the rear of the property.

10. The offenders 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 about 3 weeks Mr Fairley had not heard from them and decided to terminate their employment. Gino and Mark returned to the property, collected their belongings and left.

11. In March 2013 Mr Fairley sold the property to Guy and Luke Tidswell.

12. At the time of this offence the property was occupied by Luke Tidswell and his girlfriend Meg Irvine who resided in the main house, and Lyndon Barber and Margaret Webb who resided in the cottage.

13. On 29 August 2014 the offenders were travelling through the area heading to Victoria, driving a Volkswagon Amarok Ute. The offenders decided to enter the property to obtain diesel for their vehicle. They were unaware at the time that their former employer had sold the property in 2013.

14. The offenders drove their vehicle into the property through open gates shortly after midnight. Upon entering the property both offenders described themselves as becoming agitated and angry because of the way they perceived they had been treated by Mr Fairley.

15. The offender 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. Whilst this was occurring Mark was 'keeping watch' but he also 'slashed' the tyres of a Ford Falcon sedan.

16. Shortly after this, the offenders 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.

17. There was also 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.

18. 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 offenders then lit fires near the diesel tank in the John Deere tractor in the machinery shed.

19. Around the same time the occupants of the farm house were woken by dogs barking. They saw torch lights emanating from the machinery and workshop sheds. After getting out of bed one of the occupants saw flames and heard a vehicle engine. A witness saw a person with a torch in one hand and a flame in the other walking from the workshop shed to the shed that contained the John Deere Tractor.

20. Luke Tidswell came out of the farm house armed with a shotgun and walked towards the fire which had by then started to engulf the workshop and tractor. At that time both offenders returned to their vehicle and drove from the property. Mr Tidswell fired two shots at the vehicle, one striking the front grill of the offenders’ vehicle puncturing the radiator.

21. At 12.43am the fire brigade were called to attend the property. By this time Lyndon Barber and Margaret Webb had also come out of their cottage to assist. The workshop and the tractor in the machinery shed were then 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 and extinguished, but they had significant fire damage.

22. By this time the workshop shed and the John Deere tractor in the other shed were well alight. The Rural Fire Service arrived at 1.10am and began to fight the fire.

23. The workshop was engulfed by flames destroying the shed itself and the property within. The John Deere tractor was destroyed and the radiant heat damaged the International Tip Truck, the Hay Rake and the fencing trailer.

24. The offenders drove out of the property and towards the 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 examined and a DNA match for Gino Stocco was later obtained.

25. The offenders were listed as suspects on 29 August 2014.

26. Following their arrest later the following year both offenders were interviewed by investigators at Wellington Correctional Centre on 10 December 2015. During those interviews both offenders made full admissions to the arson incident at the 'Plenty' property. They both said that they were unaware at the time of the arson that the property had been sold by their former employer.

27. The owners of the property at 'Plenty' shortly after the fire lodged an insurance claim from which they received the amount of $177,326.60 resulting from the damage of the fires. The owners were required to pay an excess of $850.

28. The John Deere tractor (11 years old) at the time of being destroyed was insured for its market value. Subsequently and as part of the $177,326.60 sum the insurance company paid, the owners were paid $81,809.00 for the replacement cost of that tractor. The type of tractor that was needed to replace the destroyed tractor was purchased at a price of $223,000.00 This is claimed by the owners to be a substantial and irrecoverable loss.

Count 2: Murder

29. Rosario Cimone ("the deceased"), was born on 24 May 1947. He was a retired butcher by the time of his murder. He was divorced, with three children. He rarely saw friends or family and lived an isolated lifestyle.

30. In September 2015 the deceased entered into an agreement with a person, who will be called Person C, to reside on his 385 hectare property, 'Pinevale' 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.

31. Another person to be known as Person B and the deceased had been friends for some forty years. Person B met the offenders whilst they were working at the same building site at Wedderburn. They became friends and in late August or early September 2015 the offenders lived in Person B's garage at Lurnea.

32. Whilst the offenders were living with Person B, the deceased visited and socialised with them. A few days later, the offenders moved to 'Pinevale' to live with the deceased and to work on the property.

33. Both offenders said during their electronically-recorded interviews with police that 'Pinevale', being a remote property, 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, to be called Person A, and Person B had installed the deceased as a caretaker and to tend to the cultivation of the cannabis. One crop of about 14 pounds was cultivated and delivered to Sydney shortly before the murder. They further said that once Person A and Person B became aware that the offenders were wanted by the police, they went to the property and cleared it of material used in the cultivation activities.

34. 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 stated that they visited the property fairly regularly, which is consistent with them keeping an eye on their investment and employees.

35. The deceased and the offenders 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 offenders said that in addition to tending to the cannabis operation, the work involved setting up irrigation, electrical work and building a pergola as well as general cleaning and maintenance work.

36. The offenders contend that the relationship between them and the deceased deteriorated over time. The deceased saw himself as the boss and the offenders took umbrage at this. Person B and Person C had visited the property from 3 to 5 October 2015. Person C noted that the deceased was agitated. Person B and Person C were probably the last people to see the deceased alive, other than the offenders.

37. Gino Stocco provided an extensive ERISP to police after he had been arrested. He said that they had been pressured to grow drugs by the deceased and that if they didn't do as they were told, they would not be allowed to stay. He also said that he and Mark feared for their lives and feared they would be shot in their sleep as the deceased had possession of a shotgun. On the morning of 7 October 2015 the offenders and the deceased had an argument, and the deceased produced a shot gun. The offenders then agreed between themselves to kill the deceased. Gino shot the deceased once, possibly twice, with their stolen pump-action shotgun in self-defence, fearing the deceased was about to shoot them. The offenders then moved and disposed of the body some distance away in the bushes.

38. Mark Stocco 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 the deceased at the front of the house and the deceased said, "I'm going to ring Person A and sort this out." The offenders 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.

39. The offenders were angered by this and after some discussion in the house and whilst 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 5 or 6 rounds of 'Diana' BB and No 2 shot 12 gauge shotgun cartridges. The firearm and ammunition had been stolen by the offenders from Douglas Redding who had a property at Cecil Plains, Queensland. The offenders 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".

40. Gino walked out of the house carrying the firearm, followed by Mark. The deceased was standing about 2 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 2 metres. The deceased doubled over and Gino actioned the shotgun again, 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.

41. Gino now accepts the version of events described by Mark as being an accurate account of what occurred. I find, therefore, that Mark’s account should be accepted. The matter is significant as to the offenders’ motive for killing the deceased.

42. The offenders attempted to lift the deceased's body onto the back of a Mitsubishi Triton utility, but he was too heavy. They dragged the deceased's 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.

43. They 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 them so as to give anyone looking for the deceased the impression that he had simply left the property. One of the pieces of clothing contained about $50 which they kept. They also picked up the spent cartridge shells. They washed out the back of the Triton, packed their belongings into a stolen Nissan Navara utility and left the property.

44. The autopsy identified two gunshot wounds with the path of the shots being from front to back in the deceased.

Count 3: Shoot with Intent to Avoid Arrest - Constable Kerslake

Police Pursuit - Form 1

Receiving - Form 1

45. At 2pm on Friday, 16 October 2015 Constable Kerslake, attached to 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 CVS95L, pull out of Yankee Crossing Road and drive north on Railway Parade. Gino Stocco was driving the vehicle at this stage and Mark was in the front passenger seat.

46. Gino and Mark had stolen the Nissan Navara from Gino’s sister Mary-Ann Bender and her husband Geoffrey, on 22 November 2013, from their home in Chinchilla, Queensland.

47. The Automatic Number Plate Recognition software in the Highway Patrol vehicle gave an audio warning which indicated that the number plates were stolen and belonged to a Suzuki Swift and that the offenders may be using that vehicle. On 19 March 2015 Elizabeth Ecceles had reported that the registration plates attached to her Grey Suzuki Swift car, which was parked in a council car park on Lords Place in Orange NSW, had been stolen.

48. 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.

45. The offenders were aware that they were wanted by police and that they had appeared on the television show 'Australia's Most Wanted'.

46. The pursuit commenced in a built-up area of Henty and then proceeded outside Henty. As the pursuit ensued, 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 then loaded an SKK semi-automatic rifle which he had in the front of the Navara.

47. An SKK semi-automatic rifle is a high powered military style rifle. It has a range of over 400 metres. The offenders used 7.62 x 38mm calibre ammunition in this rifle when they fired at the police vehicles.

48. 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 then turned onto Kreutzbergers Road which is dirt. The Navara decreased its speed to 80 - 85 km/h on this road.

49. The pursuit ensued for approximately 23 minutes, when the Navara, stopped. Constable Kerslake slowed and then stopped about 60-70 metres behind the Navara.

50. Gino armed himself with the SKK semi-automatic rifle and pointed it out of the passenger's side of the vehicle. Gino then aimed for the front passenger's side wheel of the police vehicle and fired 5-6 shots at the vehicle. The shots hit the vehicle at the lower bumper bar just above the fog light on the passenger's side of the vehicle, as well the wheel arch wall of the front passenger's side wheel. As a result, the brake hose behind the front wheel was severed.

51. Constable Kerslake, fearing for his safety, reversed his vehicle at speed away from the Navara and headed back to Henty. Constable Kerslake notified police radio that he had been fired upon and called for assistance. He continued driving until his police vehicle stalled and the engine stopped. The offenders did not follow.

Count 4: Shoot with Intent to Avoid Arrest - SC Shaw and SC Woollatt

Police Pursuit - Form 1

56. 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.

57. 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.

58. 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.

59. 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 of 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 then fired two more shots. Gino then began reversing the Nissan Navara back towards the police vehicles.

60. 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 forward east along Paper Forest Road. Senior Constable Shaw then recommenced the pursuit but kept a safe distance. Senior Constable Woollatt continued to follow behind.

61. The Navara then turned onto Pulletop Road which is also a dirt road. Senior Constable Shaw lost sight of the Navara. The pursuit lasted approximately 40 minutes.

62. 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.

63. Senior Constable Shaw saw the Navara stop and begin reversing quickly. The Navara then turned into Cheviot Hills Road which has a 'No Through Road' sign at that intersection. Senior Constable Shaw waited there for further assistance.

64. Around 3.40pm, Police commenced a search of farm houses and sheds located on Cheviot Hills Road. It was discovered a padlock had been placed on a gate into the property 1278 Cheviot Hills Road.

65. At 4.44pm a search of the property at 1278 Cheviot Hills Road commenced. During that search, fences which had been recently cut and fresh tyre marks were seen.

66. At 5.41pm police sighted the Navara on that property and saw the offenders near the vehicle. Police then lost sight of them but continued to search for them in this area without success.

67. The SKK semi-automatic rifle belonged to Douglas Redding. Mr Redding was the owner of a property at Cecil Plains in Queensland. The offenders were the caretakers of this property for part of 2013.

68. On 13 August 2014 Mr Redding saw the offenders 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 was stolen on 14 August 2014. However, he did not notice that the SKK rifle was stolen until September 2015.

69. Police have not recovered the SKK semi-automatic rifle. It was discarded by the offenders 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

70. 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 offenders have admitted that this was the firearm used to murder the deceased.

71. Neither of the offenders has ever held a licence which authorises either of them to possess or fire any firearms.

72. 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 police to 'Pinevale'.

73. About 10.30am on 28 October 2015 the offenders were arrested at the 'Pinevale' property by NSW Police officers attached to the State Protection Group's Tactical Operations Unit. Mark Stocco 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 offenders participated in 'walkthrough' Crime Scene interviews which were recorded by Police.

74. They were transported to Dubbo Police Station where they were booked 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

75. 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 offenders on 16 October 2015. He had recently fuelled the vehicle which has a 145 litre fuel tank. The keys were in the ignition. His wallet containing fuel and credit cards was also in the vehicle.

76. 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 Stocco filling the vehicle at the Service Station and Mark Stocco entering the Service Station paying for the fuel.

Objective seriousness

(1)   Arson

77. The Crown submitted that the Court would have regard to the fact that the offenders entered the property as trespassers at night originally with the intent of stealing diesel fuel, that under cover of darkness they then set out to damage property which they must have known was both valuable and essential to the proper management of the farm in two separate locations, that the conduct was motivated by an inexcusable desire to seek vengeance against the person whom they believed still owned the property and that there was a considerable loss in financial terms with the owners being substantially out of pocket as a result. The Crown, noting that the offenders had told Dr Adams, the psychiatrist who examined them, that it was not their intention of causing physical harm to any individual, submitted that all fires expose people, including fire fighters, to the potential risk of injury. The Crown submitted that the Court would find that the offending fell at a point marginally above mid-range.

78. Counsel for Mark Stocco accepted that the fire was motivated by a desire to obtain vengeance and was calculated to do damage to valuable and important equipment. He submitted, however, that trespass, stealth and exposure of risk to persons including fire fighters were common to most, if not all, incidents of arson. He compared the setting of this fire to outlying sheds in winter when it was less likely that fire would spread with a fire in a suburban, residential setting.

79. Senior Counsel for Gino Stocco submitted that his client did not seek to minimise his criminality but pointed out that not setting fire to the residential property on the land was consciously intended.

80. In Porter v R [2008] NSWCCA 145 Johnson J (with whom Bell JA and McCallum J agreed) said:

[80]   The gravity of a s.195(b) offence is recognised by the maximum penalty of 10 years’ imprisonment, twice that available for a s.195(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.

81. In my opinion, there are three significant considerations. The first is the motive of the offenders which was, as the Crown put it, “an inexcusable desire to seek vengeance against the person whom they believed still owned the property”. The second was their intention, which I accept, that they did not intend to injure any person and in that regard they confined the fires to the outlying structures only to cause damage to property. The third matter is the significant financial losses involved. Although the owners of the property were entirely blameless victims, I do not think that that in itself is relevant to an assessment of objective seriousness. If it were, that would suggest that a similar offence was somewhat mitigated because of perceived wrongdoing by the owner of the property. The particular significance of the present owners being blameless victims is the financial loss they have sustained. As far as financial loss is concerned, it should not be overlooked that it is also the present owners’ insurers who are considerably out of pocket by the wrongdoing of the offenders. That is ultimately a cost to the community through increased premiums.

82. I consider that the offence falls at the upper end of the mid-range.

(2)   Murder

83. The Crown submitted that the killing of the deceased was well above the mid-range for a murder of this type. The Crown accepted that there was no real planning or premeditation but said it was a matter of great gravity that they were motivated to kill the deceased by virtue of the anger and frustration that they felt towards him. Counsel for each of the offenders accepted that the objective seriousness was above the mid-point.

84. I accept the Crown’s submission that four aggravating features were involved. The first was that the murder was committed in company. Secondly, a weapon was used even though it is frequently, but not universally, the case that a weapon is employed to murder someone.

85. Thirdly, the deceased was killed on the property that might appropriately be regarded as his home. The Court of Criminal Appeal took an expansive view of when the fact of an offence taking place in the victim’s home should be regarded as an aggravating feature of an offence: Jonson v R [2016] NSWCCA 286. The Court reaffirmed at [49] that the commission of the offence in the victim’s home was an aggravating factor because of the victim’s entitlement to feel secure in the home. Counsel for Mark Stocco submitted that the aggravation evaporated in the present case because the property was being used to cultivate cannabis and there could, in those circumstance, be no expectation of security in such a home. Whilst such an argument might be able to be put forward in a situation where the victim in such circumstances suffered at the hands of an intruder because of some connection with the illegality, it is difficult to see why the deceased was not entitled to feel secure in his home from persons whom he had invited to stay at the property and work for him.

86. Finally, the way the victim’s body was subsequently treated by the offenders in a callous manner concerned only with covering up their crime and, to a small extent, robbing the victim of part of his attire and money found in his clothing, should be seen as an aggravating factor of the murder.

87. I accept that there was no planning or premeditation about the killing. Whilst not accepting that there can ever be a justifiable motive for murder, the reason put forward by Mark Stocco and ultimately accepted by Gino Stocco after he put forward a false account of fear and apprehension of threats by an armed victim, that is, that they might be required to leave the property, was so trivial as to defy any rational assessment.

88. There can be no real argument, and I find, that Gino Stocco fired the weapon at the victim intending to kill him rather than intending to cause him grievous bodily harm.

89. The killing was coldblooded, callous and without any rational justification albeit it was not planned. I find that its level of objective seriousness was high in the mid-range.

(3) & (4)   Shoot with intent

90. Both of these counts concern 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 of the offenders, and ultimately enabled the offenders to remain at large for a further 12 days. The Crown submitted that the conduct put the objective seriousness of these offences at a high level. The offenders conceded that their behaviour in this regard caused significant psychological distress to the police officers. However, they submitted that the steps taken to steady the firearm before firing by bringing the vehicle to a stop at the same time assisted the shooters to ensure an accurate aim so as not to endanger life. The offenders submitted that they did not seek to minimise the risk occasioned to the police officers by unintended serious injury through ricochet or other means.

91. Too many films and television shows involving high speed car chases with the wrongdoers shooting at the police have a tendency to inure the viewer to the real dangers involved. A viewing of the DVDs from the video camera in the police cars involved in the present matter was 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. One of those police officers, Senior Constable Matthew Shaw, read a heartfelt Victim Impact Statement which clearly showed the effect of the experience not only on him but on his wife who was the General Duties Station Supervisor at Wagga Wagga Police Station on the day, and had heard the pursuit and her husband’s involvement over the police radio.

92. Whilst it is accepted that there was no intention on the part of the offenders to cause personal harm to the police officers concerned, not only was that not apparent to the officers concerned but the risk of serious injury or death to them was considerable either because of a ricocheting bullet or because the police car might have crashed, perhaps from a tyre being shot out. It was an aggravating feature of the offences that the offences involved a grave risk of death to the police officers. Such a risk was not an element of the offences because the offence could have been committed by simply discharging the firearm into the air. That feature is also a useful reminder to the community of the dangers to which police are exposed in carrying out their duties on a daily basis for which they rarely receive acknowledgement.

93. I consider that the level of offending in relation to each of these offences was in the upper end of the mid-range.

Subjective features

94. Neither of the offenders gave evidence at the sentence proceedings. The Court was reliant on two psychiatric reports in respect of each of the offenders from examinations by Dr Jonathan Adams in the latter half of 2016 and from what appears in the notes from the NSW Department of Corrective Services concerning the offenders where, to all intents and purposes, they appear to be model prisoners.

95. The account of his life given by Mark Stocco to Dr Adams was one of a normal upbringing which he described as privileged. He completed the Queensland equivalent of the Higher School Certificate and studied for three years at James Cook University doing civil engineering.

96. However, things started to deteriorate when his parents’ marriage fell apart in 2001. He left university in that year and commenced living and working with his father to whom he was close. Mark had been in a relationship with a woman for some two and a half years but there was tension between his partner and his father, and eventually the relationship came to an end.

94. There was apparently a property settlement that did not favour Gino, and both father and son became bitter about that. From 2003 they commenced to lead a somewhat itinerant life which Mark described as self-sufficient and self-sustaining. He said that he and his father did not like the law because it was restraining them.

95. 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 subsequent shoplifting conviction in New South Wales in April 2004 and then in February 2007 he was imprisoned in Victoria for two months for robbery and fined for dealing with property suspected of being proceeds of crime, and stating a false name. His criminal record entitles him to no leniency.

96. Dr Adams considered 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 used illicit drugs nor misused prescription medication nor anabolic steroids. He said he had never been anything more than a social drinker and denied any problem with alcohol.

97. Gino Stocco told Dr Adams that he grew up in a functional family. He enjoyed his school years although he left school at the age of 15 with his year 10 certificate. He did not attain any formal qualifications but became a relatively accomplished brick layer, electrician and carpenter. He ran a number of businesses.

98. He appears to have met his wife at about the age of 19. They subsequently married but from about 1993 difficulties emerged within the marriage. 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 to try to get back together with her. This did not work and he realised that the relationship had become impossible. They formally separated in 2000 but have never completed divorce documentation.

99. From 2004 he and his son were leading a more itinerant lifestyle, first on a yacht and then, after its sale, by travelling around and working on properties being paid cash in hand. He described to Dr Adams some resentments for the way they were treated by some of the landowners and said that they engaged in various vengeful acts against the property of these people. They never engaged in physical violence towards people.

100. They had been residing with a person in Campbelltown but by that stage (the dates are unclear) they had been featured on Australia’s Most Wanted program. That led to them moving to work at Pinevale after they met one of the persons who was involved in operating that property. Gino told Dr Adams that he and his son did not want to get involved in the drug growing but pressure was put upon them in that regard. He claimed to 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 guns.

101. Gino’s account to Dr Adams of both he and his son feeling totally threatened and under siege, and putting that account forward to explain the motivation for the murder differs fairly starkly from what Mark told the police. In the absence of direct evidence from Gino I do not consider that I can accept his account of the motivation for their behaviour. As noted earlier when recounting the facts, Gino gave an account to the police emphasising feelings of threat and fear and made a false assertion of the deceased producing a firearm just before he was killed, but then subsequently accepted that his son’s account was the correct one.

102. Gino’s criminal record commenced, contrary to what Dr Adams noted, in 1984 in Queensland when he was convicted for stealing. There were then further property offences in 1986, 1995–1997 and 2001-2004 in Queensland. For some of those offences he spent some 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.

103. His 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 then in 2007 he was sentenced to a period of imprisonment for burglary, theft and criminal damage. None of the offending is of the order of the present offences but his criminal record entitles him to no leniency.

104. The only explanation Dr Adams had for the offending was that both offenders developed an anti-authority belief system over a number of years. That occurred partly because they separated themselves further from pro-social and law abiding society which appears to have intensified their anti-authority standpoint. Dr Adams noted that Mark Stocco did not feel pressured in any way to accept his father’s beliefs but he agreed with the sentiment of them.

105. A significant turning point appears to have occurred when they were featured as part of the Australia’s Most Wanted program although the justification for that is hard to fathom because their offending to that time consisted largely of relatively low level property offences. Dr Adams said 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

109. In his ERISP made on 28 October 2015 at a time when he had had three weeks to reflect on his part in the killing of Mr Cimone, Mark Stocco 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.

110. Whilst remorse must be judged at the present time, any expressions of remorse must be seen in the light of that statement with no regret attached to it.

111. Further, as noted, neither offender gave evidence at the sentence hearing. Nor did they, through their counsel, offer any form of apology to the relatives of Mr Cimone or to the police officers. In those circumstances a court would be reluctant to accept any expression of remorse made to a doctor whose report was tendered. However, the only statement in Dr Adams’ reports that could possibly be considered a statement of remorse by Mark was in the first report on Mark where Dr Adams said:

He accepted the impact of all their offending behaviour upon the victims.

112. In Dr Adams’ second report concerning Gino he reports Gino as saying that what they did was a “total misjudgement” and it was a “really bad call to do what we did”. That may be some small indication of remorse but it is not clear. Gino also said that he recognised that damaging people’s property would psychologically affect them and cause harm. Nothing was said about how killing people might affect those close to them nor how police officers might be affected by believing, quite reasonably, that they were being shot at by a high-powered rifle while trying to apprehend the offenders.

113. There was some evidence that the offenders had offered to apply their assets, principally a property settlement from Gino’s wife worth about $48,000, towards the victims of the arson. I accept that such an offer, considered with what Gino said to Dr Adams could be considered as remorse in relation to the arson. I do not accept that the rather general statements made to Dr Adams by both Gino and Mark referred to above indicate any real remorse for the murder or the shooting offences.

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.

115. Whilst some credit must be given for that early confession, the changes in explanation for the killing of the deceased qualify that credit. There is nothing in Mark Stocco’s field interview nor 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 a frustration he felt towards the deceased and his business partners as well as a number of other land owners who had employed him and his father over the years and not adequately compensated and rewarded them for the work they had done. It is only when one reads what Mark said to Dr Adams about 12 months later that there is any suggestion that it was done out of any sense of fear for what the deceased or his partners might do to the offenders. When the offenders were not prepared to give evidence and subject themselves to cross-examination at the sentence hearing, I cannot place any store on the justification provided to Dr Adams to the extent that it differs from what was said immediately after the offenders were arrested in the two separate interviews of Mark Stocco.

116. Mr Cimone’s involvement in any cannabis-growing enterprise or his perceived bad treatment of the offenders, if either was the case, is beside the point. He was a human being, a husband, father, grandfather, brother and uncle, and was someone whose family cared about him, as the Victim Impact Statement read at the sentencing hearing made clear. I again extend my sympathy to the family for their loss.

Rehabilitation

117. Dr Adams appeared to be guardedly optimistic about the prospects of rehabilitation of both offenders. He said it was a positive prognostic indicator that both of them had engaged in the correctional routine since their arrest. That is borne out by the records from the Department of Corrective Services. Against that, he said, was the chronology of their anti-authority belief system and their relative social isolation for a number of years.

118. The issue of rehabilitation is of more significance for Mark Stocco because he is a relatively young man. Given Gino Stocco’s age, the reality is that there is not a great likelihood that he will ever be released from prison.

119. Two things encourage me to think that Mark Stocco’s prospects of rehabilitation are reasonable. The first is 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 is shown to some extent by his reported behaviour in custody.

Deterrence

120. Given the nature of the offences and the circumstances in which they were committed, general deterrence is a significant factor in the sentencing process. Committing offences as vengeance for perceived wrongs is a form of self-help against which the whole system of law, both criminal and civil, stands as a bulwark. Shooting at occupied police cars to avoid arrest is, as the maximum penalty for the offence indicates, a crime of great magnitude where both general and specific deterrence is of particular importance.

Discount

121. Both offenders 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 Stocco submitted, particularly following his submission concerning the strength of the Crown case without the admissions, that taking both the utilitarian and contrition components into account a discount of 35% could in some cases, and he appeared to imply in this case, be appropriate following R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [162]. I have already expressed my opinion about the strength of the Crown case and about his contrition.

122. In my opinion, each offender should receive a discount of 25% for the early pleas.

Sentence

123. In relation to special circumstances, Senior Counsel for Gino submitted that consideration should be given to his age. He is now aged 59. The overall sentence imposed is likely to mean he has no real prospect of being released on parole. Coupled with that is the fact that it is likely he will spend his eighties in prison. It may be accepted that imprisonment is more onerous for an older or elderly person and I find special circumstances in that regard. I do not accept that there are special circumstances in respect of Mark Stocco. The time he will spend on parole will be adequate for further rehabilitation and re-integration into the community.

124. The offenders were arrested on 28 October 2015 and went into custody on that day.

125. I intend to impose an aggregate sentence for each offender.

126. There are not many reported cases dealing with sentences for shooting to avoid arrest. In Le v R [2012] NSWCCA 202 the appellant who was appealing against his conviction had been sentenced to a term of 7 years with a non-parole period of 5 years. There was no appeal against the sentence. In R v Michael Kanaan [2006] NSWSC 539 the facts were fairly similar to the present although it was accepted there that the offender shot two police officers and intended to do so. At a time when the maximum penalty for the offence was 14 years, the offender was sentenced to 10 years imprisonment with a non-parole period of five years. The sentence must also be seen in the light of there being two charges under s 33A(1) with respect to the same officers. The overall sentence was one of 12 years with a non-parole period of seven years.

127. Regard must be had to the substantial increase in the maximum penalty since that decision from 14 years to 25 years. On the other hand the present offenders did not intend to shoot the police officers. I consider that the appropriate starting point for the sentence for each offender for each of counts 3 and 4 on the indictment is a period of 12 years. With the discount for the early plea the indicative sentence is 9 years with a non-parole period of six years and nine months.

128. As far as the murder count is concerned I have had regard to the cases identified by counsel for Mark Stocco. In my opinion the starting point for the sentence in each case should be 35 years imprisonment. With the discount for the early pleas the indicative sentence is one of 26 years with a non-parole period of 19 years and six months.

129. For the arson offence the starting point should be a sentence of seven years. With the discount for the early pleas the indicative sentence is one of 5 years and 3 months.

130. In fixing an aggregate sentence I have had regard to the fact that there were four separate instances of offending involving four different victims or groups of victims. I note the submission of counsel for Mark Stocco that the two counts of shooting at the police to some degree occurred as part of a single course of conduct. That is to some extent correct although there were two separate police officers involved and a time gap.

131. It is necessary to mention the effect of the Crimes (High Risk Offenders) Act 2006 (NSW). This Act applies to “serious violence offences” of which murder is one. The effect of the Act is that the State can apply to the Supreme Court for an order that the offender remain in detention for up to five years or become the subject of a supervision order for five years after the expiry of any parole period. If the Court is satisfied, to a high degree of probability, that the offender would be a “high risk offender”, that is, an offender who poses an unacceptable risk of committing a serious violence offence if not kept in detention or under supervision, such an order may be made.

132. Gino Stocco, for the offences of recklessly destroying property by fire, two counts of discharging a firearm to avoid apprehension and for murder, and having regard to the matters on the Form 1 in respect of Count 3, I sentence you to an aggregate sentence of 40 years imprisonment commencing 28 October 2015 and expiring 27 October 2055 with a non-parole period of 28 years expiring 27 October 2043.

133. Mark Stocco, for the offences of recklessly destroying property by fire, two counts of discharging a firearm to avoid apprehension and for murder, and having regard to the matters on the Form 1 in respect of Count 4, I sentence you to an aggregate sentence of 40 years imprisonment commencing 28 October 2015 and expiring 27 October 2055 with a non-parole period of 30 years expiring 27 October 2045.

134. The difference in the non-parole period is referable solely to the age of Gino Stocco and to the finding of special circumstances I have made in that regard.

135. Since the offences in the s 166 Certificate have been taken into account on two Form 1 documents I make no further order with respect to the offences in the Certificate.

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Decision last updated: 31 March 2017