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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. Mr Indovino had immigrated to Australia from Italy in 1963, and established a wrought iron business. He had carried out work for Tatiana Sokoloff. When he learned that she had been killed, he inquired of police about Claudia's welfare and visited her in the Russian nursing home. She pleaded with him not to be left there. It took Mr Indovino only a short consultation with his wife for the couple to agree that they would take Claudia into their home at Five Dock, and she remained with the Indovino family, including their three children, for the rest of her days.

7. The offence of murder in this case is aggravated by the circumstance that it was committed in the deceased's home where she was entitled to feel secure. It is not otherwise aggravated.

8. There has been delay in bringing the offender to justice but, in the circumstances of the case, that does not, of itself, warrant amelioration of sentence. The delay has occurred because the offender fled the scene and was only identified by the thoroughness and persistence of investigating police 33 years later, in 2019. The arrest followed as a result of advances in the science of DNA analysis and the tenacity of the investigators.

9. Subjectively, however, it is relevant to the offender's sentence that, over the many intervening years, he has demonstrated that he is not in the least likely to re-offend in a violent manner. This murder is his only conviction for an offence of violence. His record shows that he had been a persistent housebreaker before 1986 and that he continued afterwards up to 1989. His extensive convictions for housebreaking resulted in a total of more than nine years imprisonment after 1991.

10. Even that form of criminal conduct had subsided after the offender's release from prison in 2003, and he committed no further property offences until 2018 when there was an instance in Victoria.

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.

14. The offender is not remorseful and continues to deny the offence. That, however, does not cause me to treat him as one who is beyond rehabilitation because of his age and the length of imprisonment that lies before him, and long periods between 2003 and 2018 when he lived a law-abiding life, so far as his record shows.

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.

17. I find that there are special circumstances that should cause me to reduce the offender's non-parole period substantially below the three-quarter ratio of the head sentence, which is the default under the Crimes (Sentencing Procedure) Act. The head sentence must necessarily be substantial to give effect to the requirements of denunciation of this appalling crime and general deterrence. Specific deterrence is not called for.

18. The offender's present age means that, if his non-parole period were three-quarters of an appropriate head sentence, he could have little hope of any useful life being left to him on release. A sentence so structured would potentially be crushing.

19. I take into account that his wife and two surviving adult sons reside in Victoria; that relations within the family are good; and that visiting will necessarily be infrequent and difficult.

20. I consider that a ratio of 65% for the non-parole period will meet the requirements of the case. The offender's sentence must date from the date of his entry into custody on remand for this charge.

21. Now, Mr Dukagjini, will you stand, please. For the murder of Tatiana Sokoloff at Haberfield, on 6 September 1986, you are sentenced to imprisonment for a non-parole period of 13 years commencing on 12 December 2019 and expiring on 11 December 2032, with an additional term of 7 years commencing on 12 December 2032 and expiring on 11 December 2039.

22. You will be eligible for release to parole at the expiry of the non-parole period. You are notified that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) will apply to you on your release. Your counsel will explain that to you.

Decision last updated: 17 December 2021