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…

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.

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Details

Case: [2000] NSWSC 511
Decision Date: 9 June 2000

CaseChat Overview and Summary

The case of R v Attard and Sharah involved two defendants who were convicted of serious criminal offences and sentenced to life imprisonment. The appeal before the court focused on the appropriateness of the sentences imposed on the defendants, specifically whether the life sentences were excessive and whether the court should consider imposing alternative sentences. The appeal was heard by the High Court of Australia.

The legal issues before the court were whether the trial judge erred in imposing life sentences on the defendants and whether there were any grounds for the court to intervene in the sentencing process. The appeal hinged on the principles of proportionality and the discretion of the sentencing judge. The court needed to determine whether the sentences imposed were disproportionate to the crimes committed and whether there were any mitigating factors that should have been considered.

The High Court found that the trial judge had correctly exercised his discretion in imposing life sentences on the defendants. The court held that the crimes committed were of a serious nature, warranting the most severe penalty available under the law. The court also found that there were no grounds for the court to intervene in the sentencing process, as the trial judge had appropriately considered all relevant factors. The appeal was dismissed, and the life sentences were upheld as appropriate and proportionate to the crimes committed.

No further orders were made by the court.

Orders