Dukagjini v R

HARRISON J: Section 22A of the Crimes (Sentencing Procedure) Act 1999, which came into force in 2001, provides as follows:

Mr Dukagjini was tried in 2021 before Fagan J sitting as a judge alone on a charge that he murdered Tatiana Sokoloff at Haberfield on 6 September 1986. The circumstances of the murder would appear to have been that the deceased was killed when Mr Dukagjini broke into her house to steal from the premises, but not with an intention at that stage to cause her death. Mr Dukagjini was found guilty by his Honour and on 16 December 2021 he was sentenced to a term of imprisonment or 20 years with a non-parole period of 13 years. Mr Dukagjini was 65 years old when sentenced. He will be eligible for release on parole on 11 December 2032.

In the sentence proceedings, Mr Dukagjini submitted that he was entitled to a lesser penalty because his choice of trial by judge alone facilitated the administration of justice by reducing court time, and the sparing of witnesses who would otherwise have been required to give evidence. He also contended that he was entitled to a lesser penalty as the trial proceeded “during COVID-19 pandemic conditions”.

Mr Dukagjini now appeals to this Court against the severity of his sentence upon the single ground that “his Honour erred in his consideration and failure to apply” section 22A of the Act. Specifically, Mr Dukagjini contends, in effect, that his decision to be tried by judge alone in and of itself facilitated the course of justice and that his Honour erred in failing to discount his sentence in a way that recognised or took account of what Mr Dukagjini alleges flowed from that decision. Mr Carroll of counsel, who appears for Mr Dukagjini, uncontroversially accepts that a decision to impose a lesser penalty in accordance with the provision is a matter of discretion and that success in this appeal requires him to establish that Fagan J’s discretion relevantly miscarried.

His Honour dealt with the issue in his remarks on sentence in R v Martin Dukagjini (No 2) [2021] NSWSC 1668 at [15]-[16] in the following terms:

Mr Carroll submitted that these remarks indicate his Honour erred in holding that the application of s 22A “is to be determined by considering the subjective motivation for the decision made in relation to the conduct of the trial”. Mr Carroll’s contention was that in dealing with the applicability or otherwise of s 22A in this case, his Honour’s discretion miscarried to the extent that he took account of an irrelevant consideration, namely, by considering that, or whether, Mr Dukagjini’s choice of a judge alone trial produced a collateral benefit for him by eliminating the risk that a jury might, among other things, misuse tendency evidence concerning his significant record of housebreaking against him. Mr Carroll maintained that his Honour should instead have considered the text, context, and purpose of the section, which required that the facilitation of justice be measured directly in terms of efficiency in the use of court time and the objective savings to witnesses and the community generally. Mr Carroll submitted that “an accused person ought not to be excluded from receiving a benefit” that might otherwise be available pursuant to the section because the chosen mode of trial by judge alone was potentially beneficial to that accused.

Mr Dukagjini submitted that in the circumstances his Honour both acted on a wrong principle and allowed an irrelevant matter to guide or affect him in the manner described in House v The King (1936) 55 CLR 499; [1936] HCA 40.

It would appear not to be in contest that the trial proceeded before his Honour in a very efficient manner. The trial concluded after only seven days. A large quantity of evidence was tendered in documentary form, including 39 statements from witnesses who were not required to give oral evidence. In the events that occurred, only ten witnesses did so. Of these, seven were either police officers or former police officers. The remaining three witnesses were specialist forensic experts. No civilian witnesses were required to give evidence.

This Court was referred to what was said by Rothman J in Christov v R [2009] NSWCCA 168 at [68]-[72]:

In light of Rothman J’s remarks at [72] in Christov, it is instructive to note Mr Carroll’s reference in his written submissions to what passed between Fagan J and counsel for each of the parties in the course of the sentencing proceedings. The following exchange took place with the Crown:

The following somewhat longer exchange took place with counsel for Mr Dukagjini:

Those passages from the transcript of the sentencing proceedings give context to Mr Dukagjini’s submissions. They are not, however, available as material from which to infer error for the purposes of this appeal.

It seems to me that resolution of this issue must clearly depend not upon why Mr Dukagjini opted for a judge alone trial but whether, quite apart from that choice, his conduct of the trial in whatever form it proceeded facilitated the administration of justice. Section 22A emphasises “the degree to which the administration of justice has been facilitated by the defence”. Inherent in Mr Dukagjini’s contentions is the proposition that trial by judge alone necessarily and automatically facilitates the administration of justice because it results in a shorter and more efficient trial with fewer witnesses and less disruption to members of the public, and implicitly that he should be rewarded for that choice.

In my experience, trial by judge alone does not necessarily result in the type of efficiencies or savings upon which that submission depends. It certainly cannot be accepted as an inevitable result. His Honour was not prepared to treat it that way, and expressed understandable reservations about giving unqualified support to the proposition that it should be. His Honour’s remark at [15] on sentence that “I regard the mode of trial in this case as neutral with respect to facilitation of its conduct” is a clear statement about the way in which the trial proceeded before him and, more particularly, that the administration of justice was not facilitated in fact by the mode of trial. His Honour was entitled as a matter of discretion to form that view. I do not accept that in doing so, his Honour acted on a wrong principle or allowed an irrelevant matter to guide him.

The ultimate thrust of Mr Dukagjini’s contentions is that his Honour somehow illegitimately engaged in a balancing exercise, comparing benefits and burdens, thereby erroneously concluding that the potentially advantageous elimination of the possibility of jury error precluded further consideration of a lesser penalty. It proceeds upon that basis that the unambiguous basis of his Honour’s conclusion at [15] is cast in doubt by his reference to the matters in [16]. However, the patent flaw inherent in that argument is the suggestion that acceding to trial by judge alone is necessarily disadvantageous to an accused person in general or possibly to Mr Dukagjini in particular. Descending into this type of comparison is no more than an exercise in speculation. The force of his Honour’s conclusion in [15] is not in my view qualified or limited by anything said by his Honour in [16]. Far from proceeding upon a wrong principle, his Honour may well have done so if he had treated Mr Dukagjini’s choice of trial by judge alone as automatically compelling the imposition of a lesser penalty.

In these circumstances, it becomes unnecessary to consider whether Mr Dukagjini should be resentenced or whether some other sentence should be imposed. In my opinion, the appeal should be dismissed.

WILSON J: Harrison J has set out the facts and circumstances relevant to the determination of this application. Subject to what follows, I agree with his Honour.

Section 22A of the Crimes (Sentencing Procedure) Act does not operate as a provision by which any level of efficiency in the conduct of a trial by an accused person will attract a lesser sentence. It is a discretionary provision – “a court may impose a lesser penalty” – which allows a sentencing court to impose a lesser sentence “having regard to the degree to which the administration of justice has been facilitated by the defence”. The assessment of the degree to which the defence facilitated the administration of justice need not be confined to the conduct of any trial, as the terms of s 22A(1) make clear. The application of the provision is broader than that and takes in the course of justice relevant to the proceedings in question. The “course of justice” begins when a criminal charge is brought and the jurisdiction of a court invoked: R v Todd (7) (1957) SASR 305, at 331; The Queen v Rogerson (1992) 174 CLR 268, per Mason CJ. There was no evidence before the trial judge to establish that the applicant had facilitated the administration of justice in any way other than by conducting his trial efficiently.

That his trial was conducted with efficiency appears largely to have been because the issues in dispute were narrow, and the applicant’s counsel at trial complied with the obligation that rests on all lawyers to ensure that the time and resources of the court are not wasted. As to the disputed issues, the Crown was put to proof and relevant witnesses were called and cross-examined. That procedural history does not suggest that there were any greater efficiencies in the conduct of the trial than might be expected where competent counsel are involved. See R v Walcott [2019] NSWSC 443, at [64]-[65], for a similar observation by R A Hulme J.

As Harrison J has observed, that the applicant’s trial was heard by a judge sitting without a jury does not of itself guarantee that the proceedings were conducted more economically than would have been the case before a jury, and that feature alone did not compel the trial judge to reward the election to proceed to trial before a judge sitting alone by imposing a lesser sentence. Fagan J was in the best position to assess the degree to which the defence facilitated the administration of justice, and his Honour was not persuaded to exercise his discretion in the applicant’s favour. What his Honour said at [16] of the sentence judgment can in my view be properly understood as the basis upon which his Honour exercised the discretion allowed by s 22A, and declined to impose a lesser penalty pursuant to the section.

I do not regard the approach taken by Fagan J as erroneous. His Honour well understood that s 22A provided a basis upon which the sentence to be imposed upon the applicant could be lessened; he was not persuaded that it was appropriate to take that course. Since the efficient conduct of trial proceedings is the duty of all members of the legal profession, and the degree to which the defence facilitated the administration of justice did not rise above that in this instance, the course his Honour took was open to him.

The applicant’s contention that an election by an accused person to proceed to trial before a judge sitting alone of itself facilitates the administration of justice must be firmly rejected.

Principally to ensure the finality of the proceedings, rather than because of any real merit in the application (see Gould v R [2023] NSWCCA 103, at [52] – [53]), I would grant an extension of time and leave to appeal but would, like the Presiding Judge, dismiss the appeal.

N ADAMS J: I agree with the orders proposed by Harrison J. Although I too would grant leave but dismiss the appeal, I would do so on a different basis to both Harrison and Wilson JJ.

I adopt Harrison J’s summary of the relevant facts and circumstances. I agree with the observations of both Harrison and Wilson JJ as to the relevant principles. I agree that a decision to be tried by a judge alone does not require the trial judge to reduce the sentence to be imposed. Like their Honours, I do not accept that an election by an accused person to proceed to trial before a judge sitting alone of itself facilitates the administration of justice. Some judge-alone trials are run in a way that facilitates the administration of justice, others are not; each case will turn on its own facts. I also agree that the trial judge will be best placed to assess whether the conduct of the trial by defence “truly” facilitated the administration of justice: Mulvihill v R [2016] NSWCCA 259 at [263].

Section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) is a discretionary provision. That means that even if an accused person’s counsel has run a trial in an efficient way which has facilitated the administration of justice, the trial judge is not required to impose a lesser penalty if there is a proper discretionary basis to decline to do so. Thus, to succeed on a ground contending for error in the application of s 22A of the Sentencing Act, a “House” error must be established: House v The King (1936) 55 CLR 499; [1936] HCA 40.

The “House” error relied upon in this application is that his Honour erred by having regard to an irrelevant consideration, namely, that the application of s 22A is to be determined by considering the accused person’s motivation for making decisions in relation to the conduct of the trial. The applicant relied upon the fact that the Crown did not dispute before the trial judge that the trial was conducted efficiently. It appears to be common ground that the murder trial ran for only seven days and a large quantity of documentary material spanning over 900 pages was tendered. That material included 39 witness statements and a large amount of documentary evidence. In addition, the ERISP of the former co-offender was tendered as were four expert reports. Only ten witnesses were called at the trial and no civilian witnesses were required.

Although the Crown in this Court took issue with how efficiently the trial was in fact run, that was not the Crown position before the trial judge. Written submissions on sentence were provided to the trial judge by both the Crown and the applicant. The Crown made no mention of s 22A in its written submissions (presumably because those submissions were filed first in time), but the applicant’s written submissions to the trial judge included the following detailed submission:

It seems to me that although the defence submission before the trial judge was framed in terms which addressed the mode of trial, the nub of the submission was that the conduct of the trial facilitated the administration of trial.

Harrison J has extracted the relevant oral submissions before the trial judge on this issue at [10] and [11]. Put shortly, the Crown’s position was that it was the Crown who had facilitated the administration of justice, not the accused, because the Crown consented to the accused’s application for a judge alone trial and the applicant should not be rewarded on the basis that “the judge alone trial was run expeditiously by the parties”. At no stage before the trial Judge did the Crown submit that the trial had not been run “expeditiously”. That was not the basis of the Crown objection to a lesser sentence being imposed under s 22A. Rather, as the transcript extracted at [10] above reflects, the objection was as to the applicant’s motivation.

In response to that position, defence counsel submitted (extracted at [31] above) that although a judge alone trial “presents certain perceived benefits” the motivation for seeking a judge alone trial is irrelevant to the question under s 22A of whether the administration of justice has been facilitated; the question is whether there has in fact been such facilitation.

Thus, the joint position of the parties before the trial judge was that the trial had been run expeditiously; the parties only joined issue as to the relevance of the applicant’s motivation for a judge alone trial.

Against that background, the reasons provided by the trial judge for not imposing a lesser penalty under s 22A (extracted above at [5]) were: that the applicant’s submission “was based on the offender’s acceptance of trial by judge alone”; that “the mode of trial” was neutral in respect of the facilitation of justice”; and that it was to the applicant’s benefit that the jury was dispensed with. But the reliance on s 22A was not confined to reliance upon the mode of trial, as is evident from the written submissions before the trial judge extracted above at [5]. Further, on my reading of his Honour’s reasons, it is open to infer that the fact that a judge alone trial was to the benefit of the applicant did form part of his Honour’s reasons for declining to impose a lesser penalty under s 22A.

I accept that it was a matter for the trial judge’s discretion whether to impose a lesser penalty on the basis that the applicant had facilitated the administration of justice “during the trial”. I also accept that the trial judge was in the best position to assess whether the administration of justice was in fact facilitated by the manner in which the defence case at trial was conducted. But in circumstances where his Honour made no finding to the effect that the administration of justice had not been facilitated by the conduct of the defence case at trial (as opposed to the mode of trial), the only other explanation for declining to apply a s 22A discount was that expressed at [16]: that the mode of trial was to the applicant’s benefit. In circumstances where the motivation of an offender in running an efficient trial is an irrelevant consideration for the purposes of s 22A, I am satisfied that error has been established.

Since Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 if an applicant can establish that an error has the capacity to influence the sentence, then this court is required to intervene and re-sentence the applicant: Benn v R [2023] NSWCCA 24 at [82]. It was not suggested otherwise than that this error had the capacity to influence the sentence.

As for re-sentencing the applicant, I have had regard to the applicant’s subjective case, which is summarised R v Dukagjini [2021] NSWSC 1668 in this way at [11]-[13]:

I adopt the findings of the trial judge as to the objective seriousness of the murder, the relevance of delay, the applicant’s low risk of re-offending, his criminal history and his rehabilitation. The applicant is not remorseful but still has good prospects of rehabilitation. I too would find special circumstances under s 44 of the Sentencing Act. I have had regard to the applicant’s age and to the fact that his family reside in Victoria and will find it difficult to visit him. Although there is no need for special deterrence in this matter, the sentencing purposes of punishment, denunciation and general deterrence must be reflected in a significant sentence.

I would apply a small discount for the fact that the applicant facilitated the course of justice by the conduct of his trial. I am satisfied that there was some limited facilitation, but the trial judge was still required to read a huge amount of material in chambers.

Having considered the factors relevant to the sentence to be imposed, I have made a value judgment as to what is the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. The sentence I have arrived at is slightly longer than that imposed on him by the trial judge. Despite the fact that the language of s 6 permits this Court to impose a sentence that is “more or less severe” than that imposed at first instance, it is not the practice of this Court to impose a more severe sentence: RO v R [2019] NSWCCA 183 at [119].

In those circumstances, I too would dismiss the appeal.