Dukagjini v The King

[2023] NSWCCA 210

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dukagjini v R [2023] NSWCCA 210

Hearing dates:

24 July 2023

Date of orders:

28 August 2023

Decision date:

28 August 2023

Before:

Harrison J at [1]
Wilson J at [17]
N Adams J at [24]

Decision:

Appeal dismissed

Catchwords:

CRIME – appeal – appeal against sentence – murder – trial by judge alone – whether mode of trial per se capable of facilitating the administration of justice for purposes of Crimes (Sentencing Procedure) Act 1999 s 22A – whether accused’s decision to opt for trial by judge alone attracts consideration of a lesser sentence – whether trial judge considered mode of trial neutral in the facilitation of its conduct or factored in irrelevant consideration of motive to seek trial by judge alone – whether error established – appeal dismissed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) s 22A, 44

Criminal Appeal Act 1912 (NSW) s 6

Cases Cited:

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

Category:

Principal judgment

Parties:

Martin Dukagjini (Applicant)
Rex (Respondent)

Representation:

Counsel:
D Carroll (Applicant)
G Newton SC (Respondent)

Solicitors:
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2019/388348

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2021] NSWSC 1668

Date of Decision:

16 December 2021

Before:

Fagan J

File Number(s):

2019/00388348

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Dukagjini was tried before Fagan J sitting without a jury charged that he murdered Tatiana Sokoloff in the course of a break and enter gone wrong. Ms Sokoloff was killed in 1986. The parties agreed that trial by judge alone could eliminate the possibility that a jury might misconstrue the significance of DNA evidence. Mr Dukagjini also had a long criminal history of housebreaking. Trial by judge alone also foreclosed the possibility that the jury might misuse tendency evidence as evidence of bad character.

The trial, which had an initial estimate of three weeks, concluded within seven days in circumstances where no civilian witnesses were called and significant material was tendered in documentary form. Mr Dukagjini was convicted: R v Dukagjini [2021] NSWSC 1528.

On sentence, Mr Dukagjini contended that he was entitled to a discount for the facilitation of the administration of justice, on account of the incidental efficiencies that flowed from the trial by judge alone.

In refusing to give such a discount, Fagan J observed (R v Dukagjini (No 2) [2021] NSWSC 1668):

• at [15] that, “the mode of trial in this case [was] neutral with respect to facilitation of its conduct”; and

• at [16] that, “It was at least as much to the offender’s benefit, as to that of the Court or the Crown, that the jury was dispensed with”.

On behalf of Mr Dukagjini on appeal it was contended that, taken together and in light of some exchanges between Fagan J and counsel during the sentencing proceedings, there was an impermissible balancing exercise embarked on by His Honour, whereby ultimately the refusal to give the facilitation discount resulted from an erroneous focus on Mr Dukagjini’s pretrial reasons for applying to have the matter heard by a judge alone.

The Court held (dismissing the appeal):

As to the s 22A discretion broadly:

Per Harrison J (Wilson J and N Adams J agreeing):

1. s 22A is discretionary in its nature, and choosing to proceed by way of a trial by a judge alone will not require sentencing judges to reduce the sentence on account of s 22A: [4], [14], [18], [20], [25]-[26]

Christov v R [2009] NSWCCA 168

As to the substantive disposition of the appeal:

Per Harrison J (Wilson J agreeing):

2. The remarks of Fagan J which Mr Dukagjini had sought to impugn were better characterised as comment on the way the trial proceeded before him, declaring that the mode of trial was agnostic to the facilitation of the administration of justice. In such circumstances, His Honour was not in error in refusing to give Mr Dukagjini a discount in accordance with s 22A: [14]-[15], [20]-[22]

Per N Adams J:

3. Where there was no affirmative finding that the facilitation of justice was not facilitated by the conduct of the defence case, the only other explanation for His Honour’s refusal to give a discount in accordance with s 22A is the irrelevant consideration of the offender’s motivations in running an efficient trial: [34]

4. In circumstances where an exercising of the sentencing discretion afresh would lead to a slightly longer sentence than that imposed on the offender by Fagan J, the practice to not impose more severe sentences on appellants nevertheless leads to dismissal of the appeal: [39]-[40]

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; RO v R [2019] NSWCCA 183

JUDGMENT

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

22A Power to reduce penalties for facilitating the administration of justice

(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).

(2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

2. 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.

3. 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”.

4. 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.

5. 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:

“[15] The offender's counsel urged me to discount the sentence under the provision of the Crimes (Sentencing Procedure) Act 1999 that deals with facilitation of the efficient conduct of the trial. This submission was based on the offender's acceptance of trial by judge alone. It was submitted that this had utilitarian value to the administration of justice. I regard the mode of trial in this case as neutral with respect to facilitation of its conduct.

[16] It was at least as much to the offender's benefit, as to that of the Court or the Crown, that the jury was dispensed with. The offender's legal representatives, quite reasonably, perceived some risk of a jury misusing the tendency evidence concerning the offender's record of housebreaking, and they were concerned about a jury's assessment of the scientific DNA evidence.”

6. 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.

7. 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.

8. 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.

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

“Sentence Appeal: Utilitarian Value of the Manner of the Conduct of the Trial

[68] The issue raised in the sentence appeal is that Kirby J did not take into account the utilitarian value in the manner in which Mr Christov conducted the trial. As earlier stated, the trial by Judge alone had benefits in the duration of the trial. Further, Mr Christov made admissions, consented to the tender of a large number of statements and did not cross-examine a number of Crown witnesses. The trial, because it was a trial by Judge alone, could be limited to the issue of substantial impairment and the determination of whether the act amounted to murder or manslaughter. There is no doubt that the effect of these matters saved Court time.

[69] In R v Doff [2005] NSWCCA 119, this Court (Wood CJ at CL, Adams and Bell JJ) said at 58(c):

‘The efficient way in which the Appellant’s trial was conducted, including the making of extensive admissions, which while not demonstrating contrition or remorse, did show a willingness to facilitate the course of justice by refraining from resort to dilatory and technical objections of no merit. We do not see why this should not be taken into account for the purposes of sentencing, particularly in a case where there was a single issue of substance which it was appropriate for decision by a jury.’

[70] The Crimes (Sentencing Procedure) Act 1999 prescribes, in s 21A thereof, aggravating and mitigating factors that are required to be taken into account in the determination of a sentence. A sentencing judge is not, pursuant to those provisions, required to take into account the utilitarian value of the manner of the conduct of the trial. A plea of guilty is required to be taken into account by a sentencing judge, as is pre-trial disclosure. But the admissions made under s 184 of the Evidence Act 1995 were not pre-trial disclosures: see also s 22A of the Crimes (Sentencing Procedure) Act.

[71] If the utilitarian value of the manner in which a trial is conducted were a mandatory factor to be considered in sentencing, then a failure to take such factor into account would be an error of law. But the Act does not so provide. The factor to which this Court referred in Doff, supra, is a factor that may be taken into account by a sentencing judge. But there is no requirement to take it into account. There may be circumstances where the failure to take such a factor into account would be an error that should, and would, be corrected on appeal. But this is not such a case. It is essential that a sentence imposed, regardless of the factors available, not be disproportionate to the offence committed.

[72] The submissions of Mr Christov, on this issue, deal with a number of statements by Kirby J in the course of the sentencing proceedings as to his Honour’s approach to the factor. Comments by judicial officers in the course of proceedings are not a considered view, and often do not express the view of the judicial officer at all. Such comments may be made to focus the attention of counsel on issues that need to be addressed or to refine the issues that are before the judicial officer. It is only in exceptional circumstances that such comments should be taken into account for the purpose of determining the attitude of a judicial officer to a particular aspect.”

10. 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:

“Crown Prosecutor: The final thing I wished to address was my friend’s submission in respect of section 22A that there has been facilitation of the administration of justice that the matter was before you as a judge alone trial. The Crown submission is that in this case there was a real likelihood that a jury may have mis-used his prior criminal history or misunderstood or misapplied the DNA evidence and it was on that basis that the Crown consented to the matter being a judge alone trial in fairness to the offender.

His Honour: So, you are saying that it was a case of the Crown facilitating justice, not him.

Crown Prosecutor: That’s exactly my submission, your Honour, and my submission is that the offender shouldn’t then be rewarded on the basis that the judge alone trial was run expeditiously by the parties. I say it is a case where that does not arise. They were the only matters I wished to raise.”

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

“His Honour:   … You could go straight to the facilitation of justice. I am a bit wary I must say, Mr McMahon, because one doesn’t want to create a precedent that by agreeing to that course an offender can expect a discount if convicted. Prima facie the mode of trial is by jury. It’s very important that we maintain that. There are exceptional circumstances and here it seems to have suited justice fairly to your client that there be a judge alone trial, but I wouldn’t have thought that there was any particular facilitation by him in that respect. How do you put that?

McMahon: Can I address it in this fashion, your Honour. We fairly accept, I think as we did in our submissions, that trial by judge alone, that is at paragraph 29 of the written outline, of course, presents certain perceived advantages, one of which, of course, is some certainty that evidence of potential bad character won’t be misused, but the question of whether or not an accused person has facilitated the course of justice through the conduct of his lawyers and the modality of trial is a separate question in my respectful submission from the potential motivations as to why that particular modality of trial might be adopted. But the fundamental proposition is at the end of the day, accepting what your Honour says about jury trial being important and the default modality, a judge alone trial has created a situation in particular in this case where the duration and resources otherwise required to conduct the trial have been materially reduced and, whatever the reason or motivation or perceived advantages or otherwise of taking that approach, that is the simple utilitarian reality of the situation.

…

Obviously it is a question of degree and when your Honour talks about setting precedents, of course, your Honour would be aware, I think your Honour may well have been a member of the Court in the decision of Mulvihill which dealt as one of the grounds with an argument raised belatedly in relation to 22A that hadn’t been raised before the sentencing judge, but the discounts available under s 22A have been interpreted as being rather modest, I think a range of 5 in the typical case, at most 10 percent has been typically allowed, so it is certainly not necessarily a critical factor on sentence, but it is a factor that your Honour is entitled to give some consideration to, both under the auspices of section 22A itself, and we make particular reference to the language of that section being broad and the stipulation in particular at the end of subs (1) ‘or otherwise’, that is, it talks broadly about the degree to which the administration of justice has been facilitated by the defence. And obviously when one looks at the scheme, 22A is clearly concerned with situations where there has been a plea of not guilty at a trial and it looks at the conduct of the trial and the proceedings in that context.

…

So I guess the submission is not simply one based on a black letter construction of what 22A permits and doesn’t permit, but also I guess reference more broadly to a more general proposition that where a court reaches a degree of satisfaction that there has been some facilitation of justice by the way in which the proceedings have been conducted that that is a factor at least in terms of the ultimate sentences that some regard can be given to in the circumstances. And, indeed, I think under consideration in Christov in particular was the benefits presented by the conduct of a judge alone trial. That seems to be what was under consideration in the decision of Christov under some comments made about the efficiencies and advantages if you will of that modality of trial. So it is a factor, whether it be under section 22A or more generally, that we say your Honour can give some consideration to.”

12. 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.

13. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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].

24. Section 22A of the Crimes (Sentencing Procedure) Act1999 (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.

25. 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.

26. 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:

“SECTION 22A

[28] Some consideration can also be given to the conduct of the trial itself and whether both the modality of trial and the approach taken to it have facilitated the administration of justice to some extent for the purposes of s 22A of the Crimes Sentencing Procedure Act 1999. The section speaks broadly as to the facilitation of administration of justice ‘whether by disclosures made pre-trial or during the trial or otherwise’. As the available authority points out the trial judge is best placed to make such assessments: Khadadadi v R [2021] NSWCCA 259 at [29].

[29]   Whilst trial by judge alone present certain perceived advantages, for example the provision of reasons, a better understanding of complicated expert evidence and some certainty that evidence of bad character will not be misused, those are not advantages enjoyed solely by the accused but rather the administration of justice overall. It is submitted that proceeding by way of judge alone trial here has facilitated the administration of justice to some extent because:

(i)   As a judge alone trial it was possible to complete the evidence and closing submissions of counsel in the case inside of 7 days. Had the matter proceeded to a jury trial a realistic estimate would have been at least 3 weeks and possibly longer allowing for deliberations. Furthermore, the trial date would have likely been well into 2022. The relative duration of the trial is a relevant consideration: R v Spinks [2021] NSWSCV 649.

(ii)   Significant expense and time would have been associated with pandemic compatible jury empanelment and associated rapid antigen screening. It is noted that even during the course of this brief trial (without a jury) that delays were occasioned in relation to the later.

(iii)   It would have likely been necessary in the context of a jury trial to have taken a different approach to evidence that was otherwise capable of tender in a judge alone context, including the expert and evidentiary statements. By way of brief examples only:

(i)   A very large quantity of documentary material including witness statements, investigator's notes and continuity statements were capable of tender.

(ii)   The lengthy reports of Ms Friedman and DSGT Harkins (tendered).

(iii)   The typical practice in terms of evidentiary statements for witnesses who are unavailable in a jury trial is for those statements to be read onto the record.

(iv)   Transcripts of the lengthy interviews with Ton Hoti (there being no written statement) were able to be tendered rather than played.

(iv)   It was possible to confine the oral evidence given. It was not necessary for example to adduce evidence at length about how DNA statistical expressions are to be interpreted. Likewise the cross-examination was also confined. Likewise closing arguments by the parties.

[30]   It is submitted that the ongoing and significant disruption the pandemic has had in relation to the operation of the criminal justice system only emphasises that proceeding in the above fashion was of some value to the administration of justice. Practitioners appearing both in Supreme Court and District Court call overs are now, following the pandemic, routinely asked whether or not there is consent to a judge alone trial for similar reasons. It seems to have been accepted in Christov v R [2009] NSWCCA 168 at (68] - [69] that a trial by judge alone is capable of facilitating the administration of justice in those ways.

[31]   Furthermore, there were no "technical" objections, pre-trial issues or opposition in general terms to the Crown's proposed tendency evidence: see Christov v R (2009] NSWCCA 168 at [69] citing R v Doff.

[32]   In Droudis v R [2020] NSWCCA 322 the Court noted that if s 22A was engaged, a percentage figure ordinarily ought to be nominated which ' ... has the benefit of providing transparency ... and encouraging accused persons and their legal representatives to conduct trials efficiently and expeditiously’: at [103]. This is a case where such has occurred to the extent reasonably possible on the issues presented by the evidence.”

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. 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]:

“[11]   The offender was born in Albania in 1956. He had an unremarkable upbringing there. He left in about 1976 because he was unhappy under a Communist form of government. He did not attain a high level of education. He arrived in Western Australia in 1980 at the age of 24 without skills for employment. His career of housebreaking commenced there, but he also had some unskilled work. He arrived in New South Wales in about 1983 or 1984.

[12]   The offender married in the early 1980s and three children were born, one of whom died in 2011 at the age of 26, and that is an event that has caused great grief to the offender and he has suffered markedly from it. His raising of his children was interrupted and compromised by his offending in the 1980s, and his incarceration in the 1990s. The offender and his family moved to Victoria in 2006 and have resided there since.

[13]   The offender was 30 at the date of the offence, and 63 when he was arrested for it in 2019. He is now 65. I do not regard him as being at any significant risk of re-offending, certainly not in violent terms, because he has never, apart from this instance, been violent. At the age he will be when released from the sentence that I must now impose, the offender will be most unlikely to resume his past habit of property offences.”

37. 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.

38. 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.

39. 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].

40. In those circumstances, I too would dismiss the appeal.

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Decision last updated: 28 August 2023