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Supreme Court 16 December 2021

R v Dukagjini (No 2)

[2021] NSWSC 1668

Homicide

Citation: R v Dukagjini (No 2) [2021] NSWSC 1668
Court: Supreme Court of New South Wales
Date: 16 December 2021
Judge: Fagan J

Background

The offender was convicted of the 1986 murder of a woman at her home in Haberfield, in Sydney's inner west. The victim was killed during a break-and-enter when the offender, who had not expected anyone to be home, strangled her with an electrical cord and struck her with a length of timber. The victim's elderly mother, who lived with her, discovered the body that night.

The offender fled the scene and was not identified until 2019, when advances in DNA analysis and persistent investigative work led to his arrest. He was 30 at the time of the offence and 63 when arrested. He was tried by judge alone and convicted on 26 November 2021, with this judgment addressing his sentence.

Because the offence occurred in 1986, sentencing proceeded under the provisions of the Crimes Act 1900 as they stood at the date of the offence. No standard non-parole period applied.

  • What head sentence was appropriate for a 1986 murder, taking into account the aggravating circumstances and the offender's personal history?
  • Did the 33-year delay in apprehension warrant a reduction in sentence?
  • Did the offender's election to be tried by judge alone attract a sentencing discount for facilitating the efficient conduct of the trial?
  • Were there special circumstances justifying a non-parole period below the statutory default ratio of three-quarters of the head sentence?

Decision

Fagan J was satisfied the murder was not premeditated. The offender had broken into the home to steal and did not arrive armed. The killing arose from panic when the victim disturbed him. The sole aggravating factor was that the offence was committed in the victim's home, where she was entitled to feel secure.

On the question of delay, the court held that the 33-year gap between offence and prosecution did not, of itself, warrant a reduced sentence. The delay resulted from the offender's flight and was only resolved through investigative tenacity and advances in forensic science, not through any act or cooperation by the offender. However, the intervening years were subjectively relevant: the offender had not committed any further violent offences, had lived largely law-abiding between 2003 and 2018, and had suffered personal tragedy including the death of a child in 2011.

The court rejected the submission that electing trial by judge alone warranted a sentencing discount. Fagan J found the mode of trial was neutral in terms of facilitating the proceedings, noting that the election served the offender's own interests at least as much as those of the court or the Crown.

Special circumstances were found to exist, justifying a reduction of the non-parole period to 65% of the head sentence rather than the default 75%. The offender's age at time of sentencing (65) meant that a standard ratio would leave him with little prospect of any meaningful life after release, which the court characterised as potentially crushing. The court also noted his family ties in Victoria, where his wife and two surviving adult sons reside.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 13 years, commencing 12 December 2019 and expiring 11 December 2032.
  • An additional term of 7 years was imposed, commencing 12 December 2032 and expiring 11 December 2039.
  • The offender was notified that the Crimes (High Risk Offenders) Act 2006 (NSW) would apply upon release.

Key Takeaways

  • A 33-year delay between offence and prosecution does not automatically warrant sentence amelioration where the delay resulted from the offender's evasion rather than any systemic failure or cooperation by the accused.
  • Electing trial by judge alone does not, without more, attract a sentencing discount under the Crimes (Sentencing Procedure) Act 1999 where that election served the offender's own forensic interests as much as it served the administration of justice.
  • Under the sentencing regime applicable to pre-1990 offences under the Crimes Act 1900, no standard non-parole period applies, and the sentencing court exercises broader discretion in structuring the sentence.
  • Special circumstances can justify a substantially reduced non-parole period where a lengthy standard ratio would render the sentence effectively crushing given the offender's advanced age, even absent remorse.
  • Committing murder in the victim's home is an aggravating factor in its own right, reflecting the victim's reasonable expectation of security in that space.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) (as in force at date of offence, 6 September 1986)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases cited: No cases were cited in the sentencing judgment. The verdict reasons are reported at R v Dukagjini [2021] NSWSC 1528.