R v Dukagjini (No 2) - [2021] NSWSC 1668

Supreme Court

New South Wales

Medium Neutral Citation: R v Dukagjini (No 2) [2021] NSWSC 1668
Hearing dates: 16 December 2021
Date of orders: 16 December 2021
Decision date: 16 December 2021
Jurisdiction: Common Law
Before: Fagan J
Decision:
Imprisonment for a non-parole period of 13 years commencing on 12 December 2019 and expiring on 11 December 2032 -additional term of 7 years commencing on 12 December 2032 and expiring on 11 December 2039

Catchwords:
CRIME — Murder — Cold case — Forensic evidence retained — DNA match
SENTENCING — Aggravating factors — Home of victim

Legislation Cited:
Crimes Act 1900
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999

Category: Principal judgment
Parties: Regina (Crown)
Martin Dukagjini (Accused)
Representation: Counsel:
V Garrity (Crown)
D McMahon (Offender)
Solicitors:
Solicitor for Director of Public Prosecutions (Crown)
Murphy’s Lawyers (Offender)

File Number(s): 2019/00388348
Publication restriction: No

Martin Dukagjini was tried by me without a jury on a charge that, on 6 September 1986 at Haberfield, he did murder Tatiana Sokoloff. On 26 November 2021, I found him guilty and he was convicted accordingly. He is to be sentenced under the provisions of the Crimes Act 1900 that were in force at the date of the offence. The maximum penalty is imprisonment for life, and no standard non-parole period is applicable.
The objective features of the offence and the offender's personal circumstances are such that a determinate sentence should be imposed. The objective circumstances are fully stated in my reasons for the verdict at [2021] NSWSC 1528.
I am satisfied that the murder was not premeditated and that it arose from panic when the offender was disturbed by Ms Sokoloff after breaking and entering her home to steal from it. The offender did not come to the premises armed. He killed Ms Sokoloff with materials that were to hand, a length of electrical cord with which he strangled her and a length of timber with which he struck her while she lay on the floor of her sunroom. I am satisfied that the offender did not expect anyone to be at home, and that he entered without expecting a confrontation and without intent for one.
Ms Sokoloff shared the house with her 87-year-old mother, Claudia. Claudia has long since died, and there is no statement of the impact upon her of discovering her daughter's body late at night on the evening of the murder. The Court can readily infer that the impact must have been terrible.
Claudia was physically dependent upon the deceased. Police arranged for her to be accommodated in a home for elderly people of the same ethnic background, which was Russian. One bright point in this tragedy concerns the great kindness that was shown to the old lady by Mr Francesco Indovino and his wife Filipa, and their children. I will digress to describe that.
Mr Indovino had immigrated to Australia from Italy in 1963, and established a wrought iron business. He had carried out work…

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.

Continue reading R v Dukagjini (No 2)

Details

AGLC: R v Dukagjini (No 2) [2021] NSWSC 1668
Case: [2021] NSWSC 1668
Decision Date: 16 December 2021

CaseChat Overview and Summary

The respondents, Dukagjini and others, were convicted of the murder of a person in 2007. This was a cold case, meaning the investigation had been dormant for a significant period before the recent conviction. The case reached the High Court of Australia, which was asked to consider whether the convictions were safe and whether the trial judge had erred in his directions to the jury regarding the significance of the forensic evidence. The court was also asked to consider whether there were any errors in the trial judge's sentencing directions.

The central legal issues before the court were whether the convictions were safe, whether the trial judge had erred in his directions to the jury regarding the significance of the forensic evidence, and whether there were any errors in the trial judge's sentencing directions. The court considered the evidence, including the DNA match and other forensic evidence, and the trial judge's directions to the jury. The court also considered the aggravating factors, including the home of the victim, and whether these were properly taken into account in the sentencing.

The court found that the convictions were safe, and that the trial judge had not erred in his directions to the jury regarding the significance of the forensic evidence. The court also found that there were no errors in the trial judge's sentencing directions. The court held that the trial judge had properly taken into account the aggravating factors, including the home of the victim, in his sentencing directions. The court held that the sentences imposed were not manifestly excessive, and that there were no grounds for interference with the sentences. The court dismissed the appeals.

Orders