AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 28 August 2023

Dukagjini v R

[2023] NSWCCA 210

Homicide
CRIME APPEAL APPEAL AGAINST SENTENCE MURDER TRIAL BY JUDGE ALONE WHETHER ERROR ESTABLISHED

Citation: Dukagjini v R [2023] NSWCCA 210
Court: NSW Court of Criminal Appeal
Date: 28 August 2023
Judges: Harrison J at [1], Wilson J at [17], N Adams J at [24]

Background

The appellant was tried before Fagan J sitting without a jury on a charge of murdering a woman at Haberfield in September 1986, during a break and enter. The parties had agreed that trial by judge alone was appropriate, partly to avoid the risk of a jury misusing tendency evidence about the appellant's significant history of housebreaking, and partly to reduce the risk of a jury misconstruing complex DNA evidence. The trial was completed in seven days, well under the three-week estimate, with only ten witnesses giving oral evidence and a large volume of material tendered in documentary form.

Fagan J convicted the appellant and sentenced him to 20 years' imprisonment with a non-parole period of 13 years. At sentencing, the appellant argued that his choice of trial by judge alone had facilitated the administration of justice and warranted a lesser sentence under s 22A of the Crimes (Sentencing Procedure) Act 1999. Fagan J declined to apply any discount, characterising the mode of trial as "neutral" with respect to facilitating its conduct, and observing that the dispensing with a jury had been at least as beneficial to the appellant as to the court or the Crown.

On appeal, the appellant contended that Fagan J had impermissibly focused on the appellant's subjective motivations for choosing trial by judge alone, rather than on the objective efficiencies that resulted from that choice.

  • Whether an accused's decision to proceed by trial by judge alone is capable, in principle, of facilitating the administration of justice within the meaning of s 22A of the Crimes (Sentencing Procedure) Act 1999.
  • Whether Fagan J erred by treating the mode of trial as neutral with respect to facilitation, or by taking into account an irrelevant consideration, namely the appellant's motivations for seeking trial by judge alone.
  • Whether, if error were established, a re-exercise of the sentencing discretion would result in a more or less severe sentence.

Decision

All three judges agreed that s 22A confers a discretion, not an entitlement. An accused who elects trial by judge alone does not automatically attract a sentencing discount merely by reason of that choice. The section requires an assessment of the degree to which the administration of justice was actually facilitated by the defence's conduct, whether pre-trial, during the trial, or otherwise.

Harrison J, with Wilson J agreeing, held that Fagan J's remarks were best understood as a finding that the mode of trial was agnostic to the facilitation of justice in this particular case. On that reading, there was no error: the trial judge had simply found that the trial by judge alone did not, in the circumstances, advance the administration of justice in a way that warranted a discount. His Honour was entitled to take that view.

N Adams J reached the same result but by a different path. Her Honour concluded that, if Fagan J's remarks could not be read as a finding that justice was not facilitated by the conduct of the defence, the only remaining explanation for the refusal of a discount was an impermissible focus on the appellant's motivations. That would constitute error. However, when N Adams J independently assessed what sentence she would impose, the figure she arrived at was slightly longer than the sentence Fagan J had imposed.

Given that result, N Adams J applied the established practice that the Court of Criminal Appeal does not impose a more severe sentence on an appellant. All three judges therefore dismissed the appeal.

Orders Made

• Appeal dismissed

Key Takeaways

  • Section 22A of the Crimes (Sentencing Procedure) Act 1999 is discretionary: the Court of Criminal Appeal confirmed that an accused's election for trial by judge alone does not, of itself, require a sentencing court to reduce the sentence on account of facilitation of justice.
  • A sentencing court is entitled to find that a mode of trial was neutral with respect to facilitation where the efficiencies achieved were as much in the accused's interest as in the interests of the court and the Crown.
  • Where a sentencing court refuses to apply a s 22A discount by reference to the accused's subjective motivations for choosing a mode of trial, that approach may constitute reliance on an irrelevant consideration and could amount to error, as N Adams J found on one reading of the primary judge's reasons.
  • In dismissing the appeal, the Court confirmed that it will not impose a more severe sentence on an appellant even where a fresh exercise of the sentencing discretion would yield a longer term, consistent with the established practice described in RO v R [2019] NSWCCA 183.
  • The three judges agreed on the outcome but diverged in their reasoning, producing a majority approach (Harrison and Wilson JJ) that found no error in the primary judge's reasoning, alongside a separate analysis by N Adams J that identified possible error but reached the same disposition on different grounds.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 44
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- Christov v R [2009] NSWCCA 168
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mulvihill v R [2016] NSWCCA 259
- R v Martin Dukagjini (No 2) [2021] NSWSC 1668
- R v Todd (7) (1957) SASR 305
- R v Walcott [2019] NSWSC 443
- RO v R [2019] NSWCCA 183
- The Queen v Rogerson (1992) 174 CLR 268