R v Attard and Sharah

[2000] NSWSC 511

CITATION:	R v ATTARD & SHARAH [2000] NSWSC 511
FILE NUMBER(S):	SC L00021/97; L00011/97
HEARING DATE(S):	8 October 1999
JUDGMENT DATE:	9 June 2000
PARTIES :	Regina Frank Attard Michael Bernard Sharah
JUDGMENT OF:	Hulme J at 1

COUNSEL :	Crown: L Lamprati Attard: C Waterstreet Sharah: CB Craigie
SOLICITORS:	Crown: SE O'Connor Attard: Galloways Sharah: Legal Aid
CATCHWORDS:	Determination of Life Sentence
DECISION:	See paragraph 67

- 26 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

NO: L00021/97
L00011/97

Friday, 9 June 2000

HULME J

APPLICATION FOR DETERMINATION OF LIFE SENTENCE

Frank ATTARD
Michael Bernard SHARAH

1    HIS HONOUR: These Reasons relate to two applications made originally under Section 13A of the Sentencing Act, 1989 for the re-determination of life sentences.

2    On 24 November 1989 a painting contractor John Ikonomopoulos, his secretary and his two sons Nick and Cleomemis were waiting in his shop to pay his sub-contractors for their week’s work. Frank Attard and Michael Bernard Sharah, both partially disguised and the former holding a loaded double-barrelled sawn-off shot gun, entered the shop. Attard menaced the occupants with the weapon and Sharah directed them to lie on the floor and demanded the location of the money intended for the sub-contractors.

3    On being informed of the money’s location, Sharah took possession of it. As the offenders were about to leave the shop, Attard struck John Ikonomopoulos to the side of the head with the barrel of the shotgun causing an 8cm laceration above the left eye. Cleomemis then got to his feet, rushed at Attard and a struggle ensued. During the course of the struggle, Sharah left the shop with the proceeds of the robbery.

4    The struggle between Attard and Cleomemis continued outside the shop. John Ikonomopoulos joined in and Attard was forced into the next door clothing boutique where the combatants were joined by Nick Ikonomopoulos and Sharah. During the struggle Attard discharged the shotgun, fatally wounding Nick Ikonomopoulos.

5    After the discharge of the shotgun Sharah fled to the vehicle in which the two offenders had driven to the scene and left. The struggle between Attard and John and Cleomemis Ikonomopoulos resumed, the weapon was wrenched from Attard’s hands and he was detained. Later two shotgun cartridges were located in a pocket of his shorts.

6    Sharah was apprehended on 27 November 1989. In due course both offenders were charged with and in separate trials convicted of armed robbery with wounding and murder. Mr Justice Sharpe imposed sentences of penal servitude of 8 years in respect of the lesser offence and, on the murder charge, penal servitude for life. In the case of Attard the sentences commenced from 24 November 1989 and in the case of Sharah, 28 November 1989, the date when, according to the remarks on sentence of Sharpe J, Mr Sharah was taken into custody.

7    In the proceedings before me the Crown contended that Mr Attard had pointed the shotgun at Nick Ikonomopoulos and, at a distance of between about 30 and 60cms, had discharged it. This proposition was disputed by Mr Attard. Because I am not satisfied of the Crown’s contention I shall approach the matter on the basis of the description of events set out above.

8    In that regard, I should refer to some earlier remarks of Sharpe J and the Court of Criminal Appeal. When sentencing Mr Attard, his Honour said:-

“The jury’s verdict on the first count implied either that the shooting was the prisoner’s deliberate act done with intent to kill or inflict serious bodily harm or, alternatively, was done during or immediately after the commission of the second offence alleged.

“In either case the jury’s decision included the finding that it was the prisoner’s willed act which caused the weapon to discharge and that the shooting was not accidental.”

9    Both Applicants appealed. In the course of dealing with the appeal by Mr Attard, Gleeson CJ, with the concurrence of the other members of the bench, said that in light of certain of Sharpe J’s directions to the jury, which the Chief Justice quoted:-

“the jury’s verdict is to be approached upon the basis that they were satisfied beyond reasonable doubt that the appellant deliberately shot Nicholas Ikonomopoulos. Once they found that then, having regard to the circumstances in which that shooting occurred, the conclusion that the appellant was guilty of murder is hardly surprising.”

10    It is unnecessary that I repeat yet again the directions of Sharpe J to which the Chief Justice referred. However, when regard is had to their terms, it seems to me clear that the deliberateness to which the Chief Justice was referring was deliberateness in causing the weapon to discharge, not in the result of that discharge. In that respect I do not understand his Honour to be differing from the remarks of Sharpe J in the second of the paragraphs I have quoted.

11    When sentencing Mr Sharah, Sharpe J said that he was satisfied beyond reasonable doubt that Mr Sharah knew that a loaded weapon was involved in the robbery and that there was a likelihood it might be used in an offensive or defensive manner. His Honour also observed that the proceeds of the robbery, taken by Mr Sharah, had not been located although something in excess of $2,000 had been used to purchase a car.

12 Before I move to consider the evidence concerning the 2 Applicants which has been put before me it is appropriate that I record the fact that there were tendered by the Crown victim impact statements by John and Cleomenis Ikonomopoulos. I am conscious of the contents of them but, as was made clear by Hunt CJ at CL in Previtera (1997) 94 A Crim R 76 and in Bollen (1998) 99 A Crim R 510, to which decision I was a party, the place of such statements in sentencing for murder is limited. See also now s28 of the Crimes (Sentencing Procedure) Act 1999. Their presence of such statements does however avoid any temptation to concentrate too much attention on the situation of the Applicants without affording adequate recognition to the enormity of their crime.

Mr Attard
13    Mr Attard was born on 27 June 1956. He arrived in Australia with his family at age 9, speaking no English. He was hyperactive, was teased and learnt little in school, leaving when he was 14½. By then he had developed a mild stutter. A statement by one of his sisters indicates that he was harshly treated by his father. He seems not to have had, or at least retained, any significant relationship with almost all of his siblings. He retained some contact with his mother.

14    His first conviction was in June 1983 for stealing a motor vehicle, for which offence a fine of $750 was imposed. In March 1984 he committed the first of a series of offences including assault with intent to rob and 3 instances of armed robbery. At least 2 of these offences were committed in company. One involved the use of sawn-off shotguns and threats to shoot a man and his wife at their home. Another involved the use of a sawn-off point 22 calibre rifle and a revolver. Mr Attard was heard to urge his companion to shoot one of the victims. For the series of offences committed between March and June 1984, Mr Attard was, in October 1984 sentenced to a total of 11 years imprisonment with a non-parole period of 6 years. He was thus on parole at the time of the murder of Mr Ikonomopoulos. In August 1988, Mr Attard was fined $600 for stealing.

15    Reports of the Serious Offenders Review Council which were put before me and their annexures show to some extent a mixed picture of Mr Attard’s conduct while in gaol. They indicate he came under adverse notice in January 1992 for, inter alia, kicking another prisoner. From then until August 1995 the reports are universally favourable, containing such remarks as “has always presented as polite, co-operative, diligent and amenable” and “a steadying influence on other inmates”. In August of that year he seems to have been assaulted and later in the month was said to have stabbed another inmate. He denied that accusation but was moved to the Goulburn Correctional Centre in September. More commendations followed until in December 1996 he was moved at his own request to the Berrima Correctional Centre.

16    He seems to have regretted this move soon after it occurred and sought to be moved to Parklea to enable contact with his son and ill mother. At Berrima he received numerous adverse reports with in a very short period, including for the making of threats unless his wishes were complied with. In February 1997 he was transferred to the Remand Centre where “good reports and program participation” were noted. At about early November 1997 he was transferred to the John Maroney Correctional Centre with a reduced C1 classification. In November 1997 he filed his application for re-determination of his life sentence. At the John Maroney Correctional Centre he was again the subject of adverse reports alleging, inter alia, that he was” persistently forcefully and often abusively demanding” and his behaviour was “characterised by complaints and sullen arrogance”. He in turn wrote to the Serious Offenders Review Council alleging that he was the subject of a “systemic and controlled policy of abuse and victimisation”. After what seems to have been an assault on him, and then a hunger strike by him, he was reported as having caused some $690 worth of damage to equipment in a cell.

17    On the basis of his disruptive behaviour, in February 1998 he was moved to Bathurst with a regressed B classification. There he seems to have received no adverse and some good reports and in December 1998 was transferred to the Industrial Training Centre with again a reduced C1 security classification. On 19 May 1999 the Governor of that Centre commented:-

“Very good reports. Mr Attard has certainly gone a long way over the years that I have known him, perhaps he is finally starting to show signs of maturity.”

18    The Review Council concluded its report with the comment:-

“Since May 1998, ATTARD has demonstrated a willingness to improve through education and regular psychological counselling and various anger management programs, and it seems that he has demonstrated maturity since his progression to minimum security.”

19    For my part, I would summarise the above history as follows. In January 1992 and August 1995, Mr Attard is said to have assaulted other prisoners, in one case seriously. During 2 limited periods, one between December 1996 and February 1997 while at Berrima and the other between November 1997 and February 1998 while at the John Maroney Correctional Centre his conduct was disruptive. Otherwise, from the time of sentence in December 1991, the reports are favourable.

20    Mr Attard has been found guilty and punished for 10 offences while in prison. As described in the Supplementary Report of the Serious Offenders Review Council, these included assault, using threatening language and fighting in 1991, possession of unauthorised property in 1992 and 1994 and fighting in 1993. There were no offences then until 1998 when in the period of February to July there were four - 2 instances of possession of unauthorised property, 1 of not comply with routine and 1 of not comply with a prison officer.

21    In other respects, Mr Attard’s achievements since being in prison have been remarkable. He has learnt to read and write and this to the extent of being able to undertake basic computer courses and compile a lengthy and thoughtful draft of a program on empathy directed to helping others avoid or overcome the problems he has experienced in his life. He has undertaken courses in first aid up to instructor level. He has successfully completed an unusual number of courses in matters such as relapse prevention, anger management, conflict resolution, assertiveness and self esteem. Reports as to his participation in these courses indicate both application and commitment. In a report of 12 August 1999 two psychologists in the Department of Corrective Services opined that Mr Attard was, without doubt, much better equipped to manage his life now than in previous times. He has never been addicted to alcohol or drugs.

22    Mr Attard has also become proficient in carpentry and joinery and skilled in the making of childrens’ toys. Some of these have been given away to a non-profit organisation directed to helping children with cancer.

23    Although Mr Attard still is not prepared to accept that the death of Nick Ikonomopoulos occurred in the manner I have found above, I am satisfied that he is seriously remorseful and accepts responsibility for that death. In this regard I rely not only on what he has said but his reactions when talking to, and symptoms described by, psychiatrists whose reports were put before me

Mr Sharah
24    Mr Sharah was born on 1 February 1954. He seems to have been a member of a stable family. He left school in year 10, aged 15 to work with his father. He left home at age 17 or 18 although he returned some time later for a short period. he seems to have reasonably constant employment.

25    His father died in 1976 and he asserted to Mr Taylor, a psychologist who prepared a report for the purposes of the application before me, that this had a devastating effect on him. He commenced using cannabis at age 20. At about 25 or 26 he started on heroin for a few months and then, according to what he told Mr Taylor, returned to it in his thirties.

26    His first conviction was on 15 August 1967. There followed 22 further occasions when he was dealt with by courts for a range of offences including breaking, entering and stealing, illegal use of motor vehicles, false pretences, escaping from lawful custody, driving unregistered and uninsured motor vehicles and driving while disqualified. In 1974 he was convicted once of possession of cannabis and on another occasion of possession of a prohibited drug the nature of which is not apparent to me. In 1982 he was convicted of possession and supply of heroin and of using heroin. His most serious offences were of maliciously setting fire to a building for which, in June 1983, he was sentenced to imprisonment for 6 years including a non-parole period of about 2 years, and of armed robbery for which, in October 1986, he was sentenced to imprisonment for 8½ years from 10 June 1986, including a non-parole period of 4 years. Mr Sharah was thus on parole for armed robbery at the time Mr Ikonomopoulos was killed.

27    It should be mentioned that, from a statement of facts tendered before me concerning that armed robbery for which Mr Sharah was sentenced in October 1986, it appears that a shortened shotgun, loaded with 5 cartridges, one in the breech, was used.

28    I turn then to the evidence of events since Mr Sharah was sentenced. The principal Report of the Serious Offenders Review Council to the Court concerning Mr Sharah included an appreciable number of good reports concerning his conduct while in prison. However that report also repeated a significant number of adverse comments made over the years by gaol authorities. The tenor of reports in February 1993 was that Mr Sharah’s “buy-ups” in goal indicated that he was standing over other inmates. In August 1996 there were complaints of similar conduct. In November 1996 a report from the general manager of Junee Correctional Centre said that Mr Sharah had created for himself a position of power and intimidation and recommended he be moved. There followed other reports indicating that Mr Sharah had so antagonised other inmates that his own life was in danger and, on 12 December 1996, he was moved from Junee.

29    Reports said that Mr Sharah was suspected on dealing in drugs in Junee and also in Bathurst to where he was moved. In a report of October 1997 he was said to be the principal controller of the drug distribution in the Bathurst Correctional Centre. In February 1998 a knife was found in Mr Sharah’s cell and another report said that:-

“Sharah has been suspected of being heavily involved in standover and has been the subject of Intel reports and staff and inmate complaints on numerous occasions in the past.”.

30    The acting Governor added to this report that Mr Sharah “ has been at this Centre for a long period of time with no improvement in his conduct.”

31    On 9 June 1998, Mr Sharah was moved from Goulburn gaol because of adverse reports as to his conduct. He was returned to Goulburn on 1 July 1998. In February 1999 there were a number of reports to the effect that he appeared to have quietened down and was working well to his eventual release. In February 1999, Mr Sharah was transferred to the Malabar Special Programs Centre. While there he has been employed on a variety of tasks including general maintenance, plumbing and carpentry. In October 1999, the Deputy Governor recorded that the work had been carried out to his satisfaction with no cause for complaint.

32    Mr Sharah however elected not to participate in the special care unit within the Centre, which unit was explained in one of the documents annexed to the Council’s supplementary report as a “therapeutic community where up to 24 inmate clients participate in a structured program for up to 14 weeks. The reason Mr Sharah advanced was that his heart wasn’t in it and his participation would thus not be fair to others.

33    The record of the disciplinary proceedings against Mr Sharah included in the Serious Offenders Review Council report showed that on 6 occasions Mr Sharah had refused to provide a urine sample and on 8 occasions has had possession of drug implements. In July 1996 a syringe and needles, smoking implements and “GVM” - presumably green vegetable matter - were found in Mr Sharah’s cell. Mr Sharah was recorded as denying ownership of the syringe and needles but admitting ownership of the balance. Annexure Q to the Council report records that soon after the finding of these items Mr Sharah said that he did not need to participate in drug and alcohol courses - an attitude which was again recorded in an assessment of 11 July 1997. In December 1997, Mr Sharah was found unconscious in a cell. Narcan and first aid were administered and he recovered. Mr Sharah said that he must have drunk someone else’s cup of coffee. In April 1998, it was proposed that Mr Sharah participate in a drug and alcohol program and he stated that he appreciated the opportunity. It is not clear to me what the outcome of this was. In June 1999 he did seek admission to a similar program and successfully completed it. However, as recently as 12 April 1999, drugs were detected in his urine.

34    It should also be recorded that in discussion with Mr Taylor, Mr Sharah denied ever refusing to give urine samples and denied that dirty urine had ever been produced by him, save and except for some which reflected codeine tablets he had taken for headaches. He denied also that he had ever had a weapon in goal. No doubt it was some of these statements which led Mr Taylor to express the view that “present indications seem to be that he (Mr Sharah) does not have a strong predisposition towards substance abuse … which was a significant factor in the commission of his crime”.

35    Mr Sharah also gave evidence. He acknowledged that on some occasions his refusal to submit to urinalysis was because he suspected that there would be drug, or at least marijuana, residues in his system and that until about 8 months prior to the hearing before me he was taking drugs. He provided an excuse for some of the incidents when drugs had been detected but said that other taking was to help him cope with prison. He acknowledged that he still had had a problem with drugs which he had been trying to address.

36    He said that the 1986 robbery was because his drug habit cost considerably more than he could earn by laying bricks and that at the time of the offence with which I am concerned his drug habit was costing about $150 to $200 per day.

37    Mr Sharah said that in prison he had found alternatives for stress including pottery at which he is quite skilful. He asserted that he now had a positive attitude towards life and had acquired a concern about other human beings that he had not had previously. He gave evidence of remorse.

38    Other evidence given included some 7 certificates indicating completion of courses or achievements reached during Mr Sharah’s imprisonment. However, only one of these was in respect of relapse prevention. I should mention also that Mr Taylor opined that personality tests he administered to Mr Sharah did not reveal any personality disorder or indicate any predisposition “towards aggressive acting out behaviour”.

39    Evidence on Mr Sharah’s behalf was also given by his brother, a Franciscan priest. He said that Mr Sharah’s personality had changed dramatically when drugs had come into his life. He had noticed a considerable change in the Applicant’s approach over the last 5 to 7 years including an improvement in his own self esteem and a willingness in the Applicant to listen to advice. He said that the family had continued contact and support and financial and emotional support was available when the applicant was released.

The Statutory Provisions

40 Against this summary of the more significant of the factual matters against which these applications have to be considered, I turn to the relevant statutory provisions. The applications were lodged, in the case of Mr Attard on 24 November 1997 and, in the case of Mr Sharah on 30 July 1997. By reason of the provisions of Section 21 of Schedule 2 to the Crimes (Sentencing Procedure) Act 1999 the applications fall to be determined in accordance with Schedule 1 to that Act. Included in that Schedule are the following provisions.

2(1) Subject to any direction under clause 6, an offender serving an existing life sentence may apply to the Supreme Court for the determination of an term and a non-parole period for the sentence.
3(1) In considering an application in relation to an existing life sentence, the Supreme Court is to have regard to:

(a) all of the circumstances surrounding the offence for which the sentence was imposed, and
(b) all offences, wherever and whenever committed, of which the offender has been convicted,

so far as this information is reasonably available to the Supreme Court.

4(1) The Supreme Court may dispose of an application in relation to an existing life sentence:
(a) by setting a specified term for the sentence together with a non-parole period for the sentence, or
(b) …
5(1) A non-parole period arising from a determination referred to in clause 4(1) is taken to have commenced on the date on which the sentence commenced or, if the offender was remanded in custody for the offence, the date on which the first such remand commenced.
7(1) in considering an application referred to in clause 2(1), the Supreme Court is to have regard to

(a) any reports on the offender made by the Review Council, and any other relevant reports prepared after the offender was sentenced, that are available to the Supreme Court, and
(b) the need to preserve the safety of the community, and
(c) the age of the offender … and
(d) in the case of an offender sentenced before 12 January 1990 … the fact that the sentencing court:-
(i) would have been aware that an offender sentenced to imprisonment for life was eligible to be released on licence under s463 of the Crimes Act 1900, and
(ii) would have been aware of the practice relating to the issue of such licences, and
(e) any other relevant matter.

41    One question which arises is the extent to which I should have regard to the reports of the actions or attitudes of the Applicants while in prison. I was initially inclined to the view that, given the general principle that one should not hold facts against an accused on sentencing unless those facts were proved beyond reasonable doubt, and that the quality of the evidence, much of it hearsay and some from anonymous or unidentified inmates, did not permit of that degree of satisfaction, I should not take account of those actions or attitudes which seemed adverse. Counsel appearing for the Crown said that, to the extent to which there was dispute about the subject of the reports, he did not dissent from this approach.

42    However, on reflection, I do not think my original view was correct. In any event, whatever may have been the situation under s13A of the Sentencing Act, sub-section 1 of which was, so far as is presently relevant, in similar terms to s7(1) above, at the time s7(1) was enacted the legislature can be taken to have been aware of the general nature of the reports to which s7(1) refers. Thus the command to have regard to those reports means that account must be taken of matters both favourable and adverse to an applicant such as I have referred to above. The requirement to have regard to the reports - not evidence of witnesses - carries as a necessary consequence it seems to me that the usual standard of proof beyond reasonable doubt as to the contents of those reports cannot apply.

43    Of course, and subject to one matter to which I refer below, elementary principles dictate that an applicant is not to be sentenced for other than the offence the subject of his application or more heavily for that offence than would occur in the absence of any report. However, it does seem to me that, subject to that limit, regard is to be had to both the positive and negative contents of any such report without any requirement that the negative aspects have to be proved to the criminal standard. Although the matter seems not to have been specifically adverted to, my impression is that this was the approach taken in, for example R v Crump (Unreported, CCA, 30 May 1994) by Hunt CJ at CL.

44    That said, and for reasons which will appear, in the particular circumstances of the applications before me, I do not regard the negative aspects of the reports other than those such as convictions or otherwise admitted as having any material significance.

45 Relevant principles to apply include those referred to by Hunt CJ at CL in R v Purdey (1992) 65 A Crim R 441 at 444-5 and, though the passage is somewhat lengthy, it bears repetition.

“But, those matters to one side, the fresh sentencing exercise required by s13A (now replaced by the provisions to which I have referred) so far as the crime of murder is concerned is in essence no different to that which would have been undertaken at the time of the original life sentence had the penalty prescribed then been (as it is now) wholly at the discretion of the judge.
The sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve - the protection of society, personal and public deterrence, retribution and reform: Veen (No 2) at 476. But, as the joint judgment of the majority in that case went on to point out (at 476):
“The purposes overlap and one of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

As that judgment stressed (at 742), a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of the prisoner re-offending upon release. It is nevertheless always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offences viewed objectively, for without such an assessment the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place: Dodd (1991) 57 A Crim R 349 at 354. Except in well defined circumstances such as the youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed: Rushby [1977] 1 NSWLR 594 at 597-598. Retribution, or the taking of vengeance for the injury which was done by the prisoner, is also an important aspect of sentencing: Goodrich (1952) 70 WN (NSW) 42 at 43; Cuthbert (1967) 86 WN (Pt1) (NSW) 272 at 274; Rushby at 598. Not only must the community be satisfied that the offender is given his just desserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done.

What all of those principles make clear is that rehabilitation (or reform) - the hope that the offender will be released back into the community a better person that when he or she left it - is only one of the purposes of punishment and that, when some measure of rehabilitation has been achieved, such a subjective consideration remains necessarily subsidiary to the need for the sentence to act as a deterrent to the public.
Another factor which the applicant’s submission overlooks is the clear demarcation between the function of the sentencing judge and the duties of the Offenders Review Board. In setting the minimum term where the term of the sentence of the court exceeds three years, the sentencing judge is fixing the minimum period which justice requires that the prisoner must serve before he becomes eligible for parole: Power (1974) 131 CLR 623 at 628-629; Maclay (1990) 19 NSWLR 112 at 122-123; 46 A Crim R 340 at 350-351.

Conclusion - Mr Attard

46 Significant in the application of these principles are the Applicants’ records and the fact that the offence was committed on parole. Relevant also are the offences for which both of the Applicants were on parole. Their prior armed robberies and the sentences imposed in consequence cannot but have provided the Applicants with instruction on the risks inherent in that type of activity and the seriousness with which the law viewed it. The death of Mr Ikonomopoulos arose in consequence of a contumacious disregard for the law and the mores of society. The Applicants had learnt little or nothing from the sentences imposed for their prior armed robbery offences. They had caused or assisted in causing the dangers inherent in such criminal activity to arise again. They had become a continuing danger to society against which it was entitled to protection. (Of course, in that last proposition I do not mean to suggest that the latter factor justified more weight than the majority of the members of the High Court in Veen v R (1987-1988) 164 CLR 465 regarded as appropriate.)

47    Putting aside subsequent events and looking at the matter as described in the first of the paragraphs from Purdey which I have quoted it seems to me that a proper sentence for each of the Applicants on the charge of murder would have involved a total term of imprisonment of 22 years. In arriving at this figure, I of course recognise that it represents a great deal less than Mr Ikonomopoulos lost. However Parliament has made it clear that it does not intend that the punishment, or the period of deprivation of liberty, should equal that suffered by a victim.

48 But there are some other matters to which the Crimes (Sentencing Procedure) Act requires attention be given. S3(1) identifies two, one of which is “all offences, wherever and whenever committed, of which the offender has been convicted”. In the case of the Applicants here, they were also convicted of robbery with wounding and sentenced to imprisonment for 8 years for that offence also. Even without the express terms of s3(1), this would clearly be a “relevant matter” within s7(1)(e). The difficulty is to determine in what way regard should be had to it.

49 For it was a separate offence, deserving of punishment in its own right, even if once a punishment of life imprisonment was imposed the sentence for the robbery charge had of necessity to be subsumed in the longer period. And in ordinary sentencing situations, it is wrong to include in the sentence imposed for one offence, punishment for the criminality involved in another - Pearce v R (1998) 194 CLR 610.

50 The difficulty in circumstances where the Court is engaged in the re-determination of a life sentence created by the stipulation that the sentence commence at the times specified by the previous section which corresponded with s5 was adverted to by Hunt CJ at CL in Purdey and again in R v Stephens (unreported, CCA, 2 November 1993) and it is regrettable that the legislature has not given to a judge engaged in a re-determination the same latitude in fixing the commencing date of a sentence as is generally applicable - c.f. s47 of the Crimes (Sentencing Procedure) Act. For there will be case where a finite term or non-parole period for murder, set by reference only to the criminality involved in that offence, should properly be additional to a sentence for another offence.

51    That in my view is the case here. For in determining on the period of 22 years referred to above I have, following the decision in Pearce v R, put entirely aside the offence of robbery with wounding and for which each Applicant was sentenced to 8 years imprisonment, commencing on the date on which, by virtue of s5, any sentences imposed by me for murder must commence. The result, unless I am entitled to increase the period of 22 years because of the robbery with wounding offence, will mean that the Applicants are inadequately punished for the murder.

52    I have recognised that, in an ordinary sentencing exercise, that is a course which is not permissible. Furthermore, one should not readily infer an intention on the part of Parliament that the same principles should not apply in cases such as those here. Nevertheless I have reached the view that s3(1) does permit me to have regard to the robbery with wounding offences and increase any sentences which I would otherwise have imposed to take account of them. I reached that conclusion without having regard to the explanatory memorandum or the Minister’s second reading speech when the relevant provision was introduced into the Sentencing Act. It might be thought that the Minister’s speech gives some support for the conclusion at which I have arrived.

53    I do not suggest that the matter is beyond doubt and that is why I have exposed my reasoning to an extent not usual in remarks on sentence. However the conclusion to which I have come is as I have indicated.

54    S3 is to all intents and purposes, a copy of sub-section 13A(4A) of the Sentencing Act, introduced into that act in 1997, after the remarks of Hunt CJ at CL in Purdey and Stephens to which I have referred. Furthermore the references to “all” and “wherever and whenever” indicate to my mind that Parliament intended that more than the usual factors relevant to sentencing for an offence were to taken into account when exercising the power to re-determine a life sentence.

55    Of course I do not suggest that one should merely add to the sentence otherwise appropriate a period equal to that imposed for robbery with wounding. Principles of totality would mean that these two periods should not merely be combined and, given the nature of the two offences, would make the reduction on this account greater than usual. For the maximum sentence prescribed for robbery with wounding may be thought to have factored into it an ingredient to take account of the potential for danger which the offence involves. In the instant case that potential was realised and it would, in my view, be inappropriate not to recognise an element of doubling up in this regard.

56 Sharpe J was not, of course, concerned with any principles of totality. The sentence of imprisonment for 8 years for the offence of robbery with wounding, given that the offence was at least the second such for each of them, and committed on parole, was not surprising and by no means out of line with the more recent guideline laid down in R v Henry and Barber (1999) 46 NSWLR 346 for the lesser offence of robbery but when regard is had to the factors to which I have referred, it seems to me that an appropriate increase in the 22 year period to which I have referred to take account of the robbery offence and to ensure that the Applicants are not inadequately punished for the offence of murder would be 3 years.

57    However, in the case of re-determination of a life sentence, the authorities make it clear that one must have regard to any evidence of later events which are relevant to the sentencing exercise. Among such matters is evidence on the topic of an offenders’ rehabilitation. In the case of Mr Attard it is to my mind clear that that has been substantial. In so concluding I do not overlook the matters adverse to him referred to in the reports of the Serious Offenders Review Council and summarised by me above. Deserving of particular mention in that regard is his conduct in Berrima and in the John Maroney Correctional Centre for that conduct provides grounds for wondering whether Mr Attard’s rehabilitation is more contrived than real and that when he does not get his own way, he is quite prepared to revert to forcing his way upon others, co-operating only when he sees it to be in his own interests.

58    However, the view at which I have ultimately arrived is that, given the extent of the good reports and the time over which they have been the rule, I should regard Mr Attard’s rehabilitation as substantial. Measured against the total period to 25 years at which I have arrived above, it would seem to me that a reduction of 4 years in recognition of the extent to this rehabilitation is appropriate The balance would still, in my view, adequately reflect the matters to which Hunt CJ at CL referred in the passage I have quoted from Purdey.

59    Of the remaining period of 21 years, the non-parole period should be 15 years. It almost goes without saying that in arriving at that figure, I have given vastly more weight to the offence of murder than to the offence robbery with wounding. This is not only because of the difference in the penalty appropriate for each offence but because retribution seems to me to be entitled to far more weight in the case of the former offence. Thus even had I taken the view that the full term but for Mr Attard’s rehabilitation should have been 22 years rather than 25, it is doubtful if I would have reduced this figure of 15 years..

60    Lest silence be taken as an indication that I may have overlooked the matter, in arriving at the conclusions expressed, I have taken account of the terms of s7(1)(d). I have not thought it necessary to place any particular weight on s7(1)(c) or, in the case of Mr Attard, s7(1)(b).

Conclusion - Mr Sharah

61    The nature and extent of Mr Sharah’s convictions while in prison, together with his continued drug addiction and attitude in this regard means that his situation is radically different from that of Mr Attard. At the very least, he would not be entitled to the discount for rehabilitation which I have allowed the latter.

62    It may be, of course that Mr Sharah has already commenced along the road to rehabilitation but it is certainly too early to form any positive view in that regard. I expressed a tentative view along these lines during the course of the hearing that it might be better if, rather than my making a re-determination now, Mr Sharah made a further application in the future. On instructions, his counsel embraced this approach although implicitly I think conditionally on my finally taking an adverse view of his client.

63    A re-reading of the material has confirmed, indeed strengthened my tentative view. The differences between the facts as they seem clearly established and what Mr Sharah told Mr Taylor make one doubt whether any reliance can be placed on what Mr Sharah has said. Certainly, I would reject Mr Taylor’s conclusions as to Mr Sharah’s addiction to drugs. So long as that addiction remains, Mr Sharah must be a danger to the community if or when released. S7(1)(b) means that that addiction must operate significantly to Mr Sharah’s prejudice.

64    These matters lead me to the view that I should decline to re-determine Mr Sharah’s sentence. Given that I see no possibility that he could obtain a result more favourable, certainly much more favourable, than Mr Attard, and will have an opportunity to make a fresh application prior to the expiration of any feasible non-parole period, this decision will not disadvantage Mr Sharah. It will also afford him a further opportunity and incentive to achieve some degree of rehabilitation.

65    I have reached that conclusion on the basis of the matter to which I have referred without the necessity to rely on the other matters adverse to Mr Sharah contained in the reports of the Serious offenders Review Council. Were regard had to them, Mr Sharah’s chances of anything would not improve.

66 It was submitted that if I declined to re-determine Mr Sharah’s sentence I should make an order permitting him to re-apply in less than the 3 years contemplated by s13A(8B) of the Sentencing Act. S6(3) of the Crimes (Sentencing Procedure) Act is in the same terms. I do not think that any fresh application should be heard in any less time that 3 years but having regard to the delays in this Court - evidenced by the fact that the applications with which I am dealing took some 2 years from the time they were made to be heard, I think it is appropriate that I direct that Mr Sharah not re-apply to the Court for 2 years. That said, he might well be better off delaying any further application until he has some runs on the board rather than making an application which is premature.

67    The orders I make are:-

1. Frank Attard, for the murder of Nick Ikonomopoulos, the term of the sentence of the Court upon you is 21 years, including a non-parole period of 15 years, both such periods commencing on 24 November 1989.
2. The application by Michael Bernard Sharah for a re-determination of the life sentence imposed on him by Sharpe J on 16 December 1991 is refused.
3. Order that that Michael Bernard Sharah not re-apply for re-determination of that sentence for a period of 2 years from today.

Last Modified: 09/26/2000