R v Sharah - [2005] NSWSC 1160

CITATION:
R v SHARAH [2005] NSWSC 1160

HEARING DATE(S): 28 October 2005

JUDGMENT DATE :

28 October 2005

JUDGMENT OF:
Hulme J at 1

DECISION:
See paragraph 17

PARTIES:
Regina
Michael Bernard SHARAH

FILE NUMBER(S):
SC 2002/01

COUNSEL:
Crown: L Lamprati SC
Applicant: J Stratton SC

SOLICITORS:
Crown: S Kavanagh
Applicant: S O'Connor

LOWER COURT JURISDICTION:

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HULME J

Friday, 28 October 2005

2002/01

APPLICATION FOR DETERMINATION OF LIFE SENTENCE

Michael Bernard SHARAH

1 HIS HONOUR: On 24 November 1989, John Ikonomopoulos was fatally shot in the course of resisting one of 2 persons who had just carried out an armed robbery of his premises. The offenders, Frank Attard and Michael Sharah were in due course arrested, charged and convicted. In 1991 both were sentenced to imprisonment for 8 years for armed robbery with wounding and, as was then required, to life imprisonment for murder.

2 Following on legislative changes, each applied in 1997 for a redetermination of his sentence so that it would consist of a defined term of years and a non-parole period. The applications came before me and on 9 June 2000 I ordered, in the case of Mr Attard that the term of his sentence be 21 years including a non-parole period of 15 years and that Mr Sharah’s application be refused. I also ordered that Mr Sharah not re-apply for re-determination of his sentence for a period of 2 years.

3 On 7 June 2002 Mr Sharah signed and on 1 July lodged a second application for re-determination. The matter was not brought on until yesterday and is the occasion for these reasons. (In light of remarks I made on the last occasion and events in 2003 to which I refer below, this delay may well have been in Mr Sharah’s interest.)

4 The evidence put before me included almost all that was before me in the previous application, including Victim Impact Statements, and there was little else except a further psychologist’s report, evidence of Mr Sharah’s conduct in prison since 2000 and some further evidence from him.

5 In arriving at my decision in the case of Mr Attard, I expressed the view that, putting aside events subsequent to the imposition of their sentences a proper sentence for each of the Applicants on the charge of murder would have involved a total term of imprisonment of 22 years, but that there should be added to that figure a further 3 years to take account of the robbery offence each had committed. I reduced the resulting 25 years by 4 years to take account of the rehabilitation Mr Attard had achieved.

6 During the current proceedings counsel for Mr Sharah contended that I had been wrong in law to add anything on account of the robbery offence but did not seek to adduce any argument which I had not previously considered. I remain unpersuaded that the course I then followed was wrong.…

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 Sharah

Details

AGLC: R v Sharah [2005] NSWSC 1160
Case: [2005] NSWSC 1160
Decision Date: 28 October 2005

CaseChat Overview and Summary

The case of R v Sharah involved Michael Bernard Sharah, who was convicted for his role in an armed robbery and the murder of John Ikonomopoulos. Sharah, along with his co-offender Frank Attard, was sentenced in 1991 to imprisonment for eight years for armed robbery with wounding and life imprisonment for murder. Sharah subsequently applied for a redetermination of his sentence in accordance with legislative changes, which was refused in 2000. In 2002, Sharah made a second application for re-determination, which was the subject of the current proceedings. The central legal issues were whether Sharah's sentence should be re-determined and, if so, what the appropriate term and non-parole period should be. The court considered the arguments presented by both the Crown and Sharah's counsel, including the extent of Sharah's rehabilitation and the differences in his conduct and circumstances compared to Attard's. The court concluded that, while Sharah's earlier conduct and drug addiction had justified the refusal of his first application, his substantial rehabilitation since 2000 warranted a re-determination of his sentence. The court found that Sharah's rehabilitation was comparable to Attard's at the time of his sentence re-determination and, therefore, a similar non-parole period was appropriate. The court ordered that Sharah's sentence be reduced to 21 years, with a non-parole period of 15 years, 11 months and 1 day, commencing on 28 November 1989. Sharah became eligible for parole on 29 October 2005.

Orders