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Stocco, Gino v R; Stocco, Mark v R

Stocco, Gino v R; Stocco, Mark v R

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
Hearing dates: 23 March 2018
Date of orders: 30 April 2018
Decision date: 30 April 2018
Before: Hoeben CJ at CL at [1];
Johnson J at [193];
Schmidt J at [194]
Decision:
Mark Stocco
(1)   Leave to appeal in respect of Ground 1 is refused.
(2)   Leave to appeal is granted in respect of Grounds 2 – 5 but the appeal is dismissed.
Gino Stocco
(1)   Leave to appeal is granted but the appeal is dismissed.

Catchwords: CRIMINAL LAW – sentence appeals by two co-offenders – counts of murder, arson and two counts of discharge firearm to prevent lawful apprehension – father and son co-offenders – Gino Stocco – whether principles of totality properly taken into account – whether aggregate sentence manifestly excessive – appeal dismissed – Mark Stocco – whether issue of assistance raised in sentence proceedings – whether failure of sentencing judge to properly take assistance into account – whether miscarriage of justice would result if assistance not taken into account – level of assistance overstated – leave to rely upon ground of appeal refused – whether sentencing judge took into account prospects of rehabilitation – whether principles of totality taken into account – application of parity principle – whether sentence manifestly excessive – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – ss 18(1)(a), 33A(2)(a), 195(1A)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 21A(3)(h), 23
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Barton v Regina [2009] NSWCCA 164
CMB v Attorney-General for the State of New South Wales [2015] HCA 9; 256 CLR 346
Cahyadi v R (2007) 168 A Crim R 41
Des Rosiers v R [2006] NSWCCA 16; 159 A Crim R 549
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Goebel-McGregor v Regina [2006] NSWCCA 390
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Ho v R [2013] NSWCCA 174
House v The King [1936] HCA 40; 55 CLR 499
Hudd v Regina [2013] NSWCCA 57
JM v R [2014] NSWCCA 297
Jonson v R [2016] NSWCCA 286
Miles v The Queen [2017] NSWCCA 266
Mooney v R [2016] NSWCCA 231
Panetta v R [2016] NSWCCA 85
Paxton v R [2011] NSWCCA 242; 219 A Crim R 104
Porter v R [2008] NSWCCA 145
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Ellis (1986) 6 NSWLR 603
R v Gommeson [2014] NSWCCA 159; 243 A Crim R 534
R v Holyoak (1995) 82 A Crim R 502
R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v Michael Kanaan [2006] NSWSC 539
R v XX [2017] NSWCCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWCCA 77
Decision Date: 30 April 2018

CaseChat Overview and Summary

The appeals by Gino Stocco and Mark Stocco against their sentences for various serious offences, including murder, arson, and firearm discharge to prevent lawful apprehension, were heard by the court. The appellants, father and son, were co-offenders in the same incidents, and their appeals focused on the sentences imposed upon them and the manner in which the sentencing judge considered certain factors. Gino Stocco contended that the principles of totality were not properly applied and that the aggregate sentence was manifestly excessive. Mark Stocco argued that the sentencing judge failed to adequately consider the level of assistance he provided, which he claimed would result in a miscarriage of justice if not taken into account. Additionally, he questioned whether the sentencing judge properly considered the prospects of rehabilitation and the principles of totality.

The court examined the arguments put forth by both Gino and Mark Stocco, focusing on the principles of totality, the level of assistance provided, and the prospects of rehabilitation. In Gino Stocco's case, the court found that the sentencing judge had properly considered the principles of totality, and that the aggregate sentence was not manifestly excessive. Consequently, Gino's appeal was dismissed. In Mark Stocco's case, the court found that the level of assistance he provided was overstated, and that the sentencing judge had not erred in failing to give appropriate weight to the assistance provided. The court also found that the sentencing judge had considered the principles of totality and the prospects of rehabilitation, and that the sentence was not manifestly excessive. Mark's appeal was dismissed, and leave to rely upon the ground of appeal was refused.

In summary, the appeals by both Gino and Mark Stocco were dismissed. The court determined that the sentencing judge had properly considered the principles of totality, the level of assistance provided, and the prospects of rehabilitation in both cases, and that the sentences imposed were not manifestly excessive. Consequently, the appeals were dismissed, and the original sentences remained in place.

Orders